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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12041
Non-Argument Calendar
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D.C. Docket No. 4:17-cv-00211-WTM-CLR
ALBERT PURVIS,
Plaintiff-Appellant,
versus
MAERSK LINE A/S,
Defendant-Appellee.
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Appeal from the United States District Court
For the Southern District of Georgia
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(January 3, 2020)
Before WILSON, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Albert Purvis appeals the district court’s grant of summary judgment to
Maersk Line A/S (Maersk) in Purvis’s suit against Maersk alleging negligence
under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act
(LHWCA), 33 U.S.C. §§ 901-950, after Purvis was injured when a hatch cover
crashed down on his head while climbing a ladder, causing him to fall to the
platform below. Purvis contends the district court entered summary judgment in
error because a material question of fact remained regarding whether the ship
breached its turnover duty under Scindia Steam Navigation Co., Ltd. v. De Los
Santos,
451 U.S. 156 (1981), when it left one of its hatch covers in such a
condition that it could fall at any time on a longshoreman passing through it. After
review, 1 we affirm the district court’s grant of summary judgment to Maersk.
I. BACKGROUND
Purvis reported to work on December 30, 2015, at 7:00 p.m. to work the
night shift as a lasher unloading the M/V ANNA MAERSK, owned and operated
by Maersk, which had just docked at the Port of Savannah. After Maersk handed
the vessel over to the stevedoring company for unloading, Purvis and his fellow
1
We review “a district court’s grant of summary judgment de novo, applying the same
legal standards used by the district court.” Galvez v. Bruce,
552 F.3d 1238, 1241 (11th Cir.
2008). “Summary judgment is appropriate where ‘there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law.’” Wooden v. Bd. of
Regents of the Univ. Sys. of Ga.,
247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P.
56(c)).
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longshoremen were the first on the ship, and Purvis was “the first to . . . get on the
gangway” and “the first one to go up the ladder.” Purvis was an officer in his
union and gave the safety briefing for the crew that day. Purvis estimated he had
worked on the M/V ANNA MAERSK at least ten times.
Purvis was working on the lashing bridge, and in order to get to that bridge
Purvis had to climb up the ladder where he was eventually injured. However,
Purvis’s first climb up the ladder occurred without incident. The “hatch cover,” a
manhole-like hinged metal cover, was already in the open and upright position, so
Purvis did not need to open it when he got near the top of the ladder. Once up the
ladder, Purvis began working on the lashing bridge where he was on the same level
as the hatch cover and, in the daytime, would likely have been able to see whether
the hatch cover was properly latched. However, Purvis was working in the
evening and testified that it was dark and poorly lit, so while standing on the
lashing platform, he was unable to see whether the latch on the hatch cover was
engaged. After working for a while on the lashing bridge, Purvis needed to go
down to the main deck to get a tool. In doing so, Purvis went back through the
already opened hatch cover and climbed down the ladder.
As Purvis was climbing back up the ladder, the hatch cover was still in the
upright or open position. Right when Purvis got to the top of the ladder, the hatch
cover came crashing down on his head. The unexpected impact of the hatch cover
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on Purvis’s head caused him to fall to the platform below. Purvis testified, “I just
remember looking up and seeing that door coming and hitting me in the face. And
then the next thing I know I’m, I’m in the van . . . . And I’ve got 50 people around
me . . . .”
According to the Captain of the M/V ANNA MAERSK, Roy Whelan,
opened hatch covers are supposed to be held up by a latch. He stated that
generally, when a person climbs up a ladder, the hatch cover above would be
closed and the person would push it up and latch it.
Other than Purvis, no one witnessed Purvis’s fall. When Purvis was found,
he was taken by ambulance to the hospital. As a result of the incident, Purvis
sustained spinal cord compression. This condition required a multi-level cervical
discectomy and fusion surgery. Also as a result of his neck injury and surgery,
Purvis could not work for almost one year. During that time, Purvis experienced
both physical pain and unhappiness with being unable to work.
II. DISCUSSION
The merits of this case turn on Purvis’s rights under 33 U.S.C. § 905(b).
The vessel owes the stevedore and her longshoremen employees the duty of
reasonable care “under the circumstances.”
Scindia, 451 U.S. at 166-67. The
shipowner is entitled to rely on the stevedore “to avoid exposing the longshoremen
to unreasonable hazards,” and may otherwise expect the stevedore to “perform his
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task properly without supervision.”
Id. at 170. “[A]bsent contract provision,
positive law, or custom to the contrary . . . the shipowner has no general duty by
way of supervision or inspection to exercise reasonable care to discover dangerous
conditions that develop within the confines of the cargo operations that are
assigned to the stevedore.”
Id. at 172. However, the Supreme Court set out the
limited duties vessel owners owe the stevedore under § 905(b) in Scindia. See
Howlett v. Birkdale Shipping Co., S.A.,
512 U.S. 92, 98 (1994). Shipowners owe
the stevedore three distinct duties during cargo operations: (1) the turnover duty,
(2) the active control duty, and (3) the duty to intervene. See
id. On appeal, Purvis
alleges Maersk breached the turnover duty.
“The ‘turnover duty’ relates to the condition of the ship upon the
commencement of stevedoring operations.”
Id.
A vessel must “exercise ordinary care under the circumstances” to
turn over the ship and its equipment and appliances “in such condition
that an expert and experienced stevedoring contractor, mindful of the
dangers he should reasonably expect to encounter, arising from the
hazards of the ship’s service or otherwise, will be able by the exercise
of ordinary care” to carry on cargo operations “with reasonable safety
to persons and property.” A corollary to the turnover duty requires
the vessel to warn the stevedore “of any hazards on the ship or with
respect to its equipment,” so long as the hazards “are known to the
vessel or should be known to it in the exercise of reasonable care,”
and “would likely be encountered by the stevedore in the course of his
cargo operations[,] are not known by the stevedore[,] and would not
be obvious to or anticipated by him if reasonably competent in the
performance of his work.”
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Id. at 98-99 (alterations in original) (citations omitted). Purvis advances two
theories of how Maersk breached the turnover duty. First, he contends the hatch
cover and latch must have been defective in some way; and second, he asserts a
Maersk employee must have opened the hatch cover and failed to latch it. There is
no genuine issue of material fact suggesting Maersk breached the turnover duty
under either theory.
As to the defective latch argument, Purvis’s evidence consists of a video
filmed by his attorney and safety inspection reports. We agree with the district
court’s determination that the video showing Purvis’s attorney manipulating the
hatch cover and latch, resulting in the hatch cover falling on the third manipulation,
does not create a genuine issue of material fact that the hatch cover was defective
when it injured Purvis. Assuming, without deciding, that the video is admissible
evidence, the video does not provide evidence the hatch cover and latch were
defective at the time of Purvis’s injury. First, while Purvis claims the video shows
the defective nature of the hatch, there is no accompanying testimony to explain
the video—for example, why the hatch cover fell on the third attempt but not the
first two or what the alleged defect is. Second, Purvis was injured on December
30, 2015, and the video was taken on June 5, 2018. There is no evidence that the
hatch cover was in the same condition two and a half years after the accident, and
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Purvis cannot testify to the hatch cover’s condition in 2015, as he admits he did not
visually inspect the hatch cover and latch on the day of the accident.
As to the safety reports noting that certain unidentified hatch locks do not
close or lock, there is no evidence that the notes of certain hatch locks not closing
or locking on routine maintenance inspections refer to the hatch cover and latch
that injured Purvis. In any case, that Maersk noted issues with certain hatch locks
in safety reports is not enough evidence to survive summary judgment. There is no
evidence the issues noted on the reports were not later repaired or were the same
conditions as on January 30, 2015. Simply put, Purvis has no evidence, other than
speculation, that the hatch cover and lock were defective on the day of his
accident.
As to the argument that a Maersk employee must have left the hatch door
open without locking it, Purvis’s argument also fails. Even if the hatch door were
left in an open and upright position without being latched, Purvis could have
remedied that issue when he was on the same level as the door on the lashing
bridge and would have been able to see the open hatch door. The condition of an
unlatched hatch cover would have been obvious to Purvis as a “reasonably
competent” longshoreman, thus precluding recovery for a breach of the turnover
duty. See
Hewlett, 512 U.S. at 98-99. The fact that it was dark does not change
the analysis, as a reasonably competent longshoreman could see if the latch was
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engaged if it was visually inspected. Purvis testified he had issues with improperly
working hatch covers in the past, and if a crew saw a latch that was not working
properly, Purvis would get maintenance to fix it or would otherwise address the
issue. Thus, if the hatch door were not latched, it should have been open and
obvious to Purvis when he was on the same level as the hatch door, and he, as an
experienced longshoreman, could have remedied the potential hazard.
III. CONCLUSION
No material question of fact remained regarding whether Maersk breached
its turnover duty. The district court did not err in granting summary judgment to
Maersk.
AFFIRMED.
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