On April 13, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed a decision from the Southern District of Georgia in Miller v. Navalmar (UK) Ltd., No. 16-11967, 2017 U.S. App. LEXIS 6372 (11th Cir. 2017), granting summary judgment in favor of the owner of the vessel CARRARA CASTLE and its charterer against a longshoreman injured during a loading operation. In Miller, Plaintiff Tyrone Miller brought a negligence action under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) against defendants Navalmar (UK) Ltd. (“Navalmar”) and Grieg Star Shipping II AS (“Grieg”). Miller was seriously injured after falling thirty-two feet when a plywood board that he had placed over a gap in the cargo stack at the instruction of the stevedores SSA/Cooper Stevedoring (“SSA”) gave way.
The Eleventh Circuit, confirmed that while there is no general duty of supervision or inspection and may rely generally on the stevedore to avoid exposing longshoremen to unreasonable hazards, there are three (3) distinct duties owed by a shipowner during cargo operations. These duties are (1) the turnover duty, (2) the active control duty, and (3) the duty to intervene. See Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98 (1994). Miller alleged breach of the active control duty based on Grieg’s written cargo safety and storage procedures which Plaintiff alleged required a duty of care toward longshoremen engaged in cargo operations. The Court held that Grieg’s mandatory loading instructions (provided to SSA) were consistent with industry practice and that Grieg was still relying on SSA for safe cargo loading operations. The passive guidance did not constitute direct involvement in loading operations, which is required before an active duty is imposed on the shipowner or charterer. As there was no direct involvement, the Court found Grieg did not owe Miller a duty of reasonable care.
Miller also alleged that Grieg and Navalamar breached the duty to intervene because they knew a fall hazard existed on the vessel and were required to remedy the condition when it became apparent that stevedore SSA failed to do so. A shipowner has a duty to intervene to protect a longshoreman once cargo operations have begun, even if it is not actively involved. However, this duty to intervene requires that the shipowner not only become aware that the ship or its gear poses a danger to the longshoreman, but also that the stevedore is failing, unreasonably, to protect the longshoremen. Lampkin v. Liber. Athene Transp. Co, 823 F.2d 1497, 1501 (11th Cir. 2014). The Court held that even if the defendants had knowledge of a dangerous condition in the CARRARA CASTLE’s hull, Miller made no showing they had actual knowledge of the stevedore’s failure to remedy the problem. The duty to intervene is exceedingly narrow and “[o]only the most egregious decisions by the stevedore are ‘obviously improvident.’” Harris v. Pac. Gulf-Marine, Inc., 967 F. Supp. 158, 165 (E.D. Va. 1997). The Eleventh Circuit ultimately held that the district court did not err in finding the Defendants lacked actual knowledge regarding the stevedore’s inability, or failure, to remedy a dangerous hazard on the vessel, and consequently they had no duty to intervene in a routine cargo loading operation.
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