Nystrom v. Khana Marine LTD. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ELIAS NYSTROM,
Plaintiff,
vs.
KHANA MARINE LTD.; NOK CO.
LTD. S.A., in personam; and the M/V
SUAH, Official Number 43379-12-B,
her engines, winches, gear, and
appurtenances, in rem,
Defendants.
Case No. 3:20-cv-00098-JMK
DECISION AND ORDER
This matter came before the Court for a four-day bench trial. 	The Court
heard the testimony of multiple witnesses, and the parties submitted accompanying
exhibits. 	Based on the foregoing, and the record as a whole in this case, the Court now
enters the following Findings of Fact and Conclusions of Law.1
1 See Rule 52(a)(1), Federal Rules of Civil Procedure (“In an action tried on the facts without the jury . . .
the court must find the facts specially and state its conclusions of law separately.”). Findings of fact in a civil case
are by a preponderance of the evidence.
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 1 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 2
I. 	FINDINGS OF FACT
1. 	Plaintiff Elias Nystrom is a resident of California. 	Since 2015,
Nystrom has worked seasonally as a fish processor for UniSea in Dutch Harbor, Alaska,
during the “A” season. The “A” season runs from approximately early January into mid-
April each year. 	Following his work for UniSea, Nystrom returns to California for the
remainder of the year, where he collects unemployment. Trial Tr. Day 1 at 51:15; Trial Tr.
Day 2 at 24:6–25:5 (Nystrom); Trial Tr. Day 3 at 85:17 (Partin).
2. 	At the end of the 2017 “A” season, but before heading back to
California, Nystrom applied for and was hired to work as a “sign in” longshoreman for
Pacific Stevedoring (“PacSteve”). 	PacSteve is a stevedoring company in Dutch Harbor
that—among other things—contracts with vessel owners to provide longshore labor. The
longshore labor transfers and loads packages of frozen fish from fishing vessels into the
freezer cargo holds of reefer vessels that carry the cargo onto various international ports.
Declaration of Andrew Murphy, ECF No. 34-1 at ¶ 3. 	Reefer vessels are freighters that
are designed to carry chilled or frozen food cargos in their cargo holds. The vessels have
refrigerated cargo holds that are chilled to a specified temperature. 	When transporting
cargos of frozen seafood, the cargo holds of the reefer vessels must be chilled to
temperatures well below freezing to prevent the cargo from thawing. Murphy Dec. at ¶ 6.
3. 	Most reefer vessels that load frozen seafood cargo in Dutch Harbor
have three cargo holds. 	Each cargo hold is covered by a main hatch cover, which is a
watertight steel cover that prevents rain- or seawater from entering the cargo hold when
the hatch is closed. Within each cargo hold are three deck levels called the “A,” “B,” and
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 2 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 3
“C” decks. The C deck is the lowest cargo deck level, the B deck is the middle deck level,
and the A deck is the uppermost cargo deck that sits just below the watertight hatch. Cargo
is stowed on each of these deck levels. Murphy Dec. at ¶ 7.
4. 	Cargo is lowered into the cargo holds using the vessel’s booms and
cargo winches. 	The hatch cover on the main deck has to be open to allow cargo to be
lowered down into the hold. The center areas of the A and B decks have “tween deck hatch
covers” that also can be opened, so that cargo can be lowered through these openings to
the decks below them. 	Thus, to load cargo on the C deck, the main hatch cover, and the
tween deck hatch covers of the A and B decks would have to be open. 	The ship’s crew
open the hatch covers to provide PacSteve with access to the deck where the PacSteve
longshore workers will be stowing cargo. Murphy Dec. at ¶ 8.
5. 	Because PacSteve loads boxes of frozen seafood into the refrigerated
cargo holds of reefer vessels in Dutch Harbor, and because cargo operations can last for
several days, the cargo holds have to be chilled before they load cargo into them.
Otherwise, the seafood may thaw and result in damage to or loss of the cargo. 	For this
reason, the cargo holds on reefer vessels loading seafood in Dutch Harbor are chilled to
temperatures well below freezing before PacSteve begins loading cargo in them. However,
the refrigeration units are turned off about an hour before the cargo operations begin and
are not turned on while longshoremen are working in the cargo holds. Murphy Dec. at ¶ 9;
Deposition of Capt. Chong, 60:11–62:12.
6. 	The nature of the work loading frozen seafood onto reefer vessels
requires PacSteve longshoremen to routinely work in icy and slippery conditions. 	Icy
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 3 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 4
cargo decks on reefer vessels loading cargos of frozen seafood in Dutch Harbor is a
common condition that longshoremen often encounter. If the temperature of a cargo deck
is below freezing, then rain or snow falling through the open hatch during cargo operations
sometimes may form ice on the area of the cargo deck located beneath the open hatch.
PacSteve longshore workers are experienced in these conditions and trained to work safely
around them. If it is not possible to work around these conditions, PacSteve longshoremen
are trained to ensure that the ice is safely cleared before continuing their work. 	Murphy
Dec. at ¶¶ 10–16.
7. 	The Court previously found that PacSteve owner Andrew Murphy
possesses the requisite knowledge, skill, experience, and training to testify in the form of
an opinion regarding the conduct of cargo loading operations aboard reefer vessels in Dutch
Harbor, including the allocation of responsibility between PacSteve longshoremen and
vessel crew members for various aspects of such operations. 	Docket 37 at 14–15. 	In
particular, Mr. Murphy is qualified as an expert to offer opinion testimony regarding the
responsibility for dealing with slippery or icy conditions that develop on cargo decks. Id.
The Court further finds that PacSteve gang boss Joel Gumera also is qualified, by virtue of
his experience, training, and knowledge, to offer expert opinion testimony on those
subjects. Both Murphy (via declaration submitted in conjunction with summary judgment)
and Gumera credibly testified that professional longshoremen in Dutch Harbor are
experienced and trained to work safely around icy or slippery conditions that develop on
cargo decks during cargo operations, and know how to do so safely. 	PacSteve workers
often work on and around such slippery and icy conditions.
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 4 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 5
8. 	Slippery conditions can form on the cargo decks of reefer vessels,
including on the decks inside the cargo holds, if precipitation falls onto frozen cargo decks
during cargo operations, because the precipitation will fall through the open cargo hatch
and land on the surface of the cargo deck. If the outside temperature is near freezing, the
temperature in the cargo hold may remain below freezing for several hours even after the
cargo hold has been opened. Also, if there already are frozen boxes of seafood stowed in
a cargo hold, that cargo will help to keep the temperature in the cargo hold cold. In these
conditions, rain that falls onto the cargo decks during cargo operations can form ice. 	As
the employer of its longshoremen, PacSteve is required by OSHA regulations to deal with
and remedy any such conditions that pose an unreasonable risk of injury to its longshore
workers. Murphy Dec. at ¶¶ 10–16.
9. 	The Court finds that a stevedore such as PacSteve that performs cargo
operations in Dutch Harbor should reasonably anticipate that ice may form on cargo decks
in such conditions.
10. 	PacSteve has developed safety protocols to address icy and slippery
conditions that form on cargo decks during cargo operations aboard reefer vessels in Dutch
Harbor. It dispatches its workers as a “gang” to load cargo on cargo vessels. The foreman
of the gang is called the “gang boss.” 	The gang boss usually is the senior PacSteve
representative on a reefer vessel when cargo operations are underway. The gang boss has
many responsibilities, including directing the work of the other members of the gang,
interacting with the crew of the reefer vessel, interacting with the crew of the fishing vessel
from which cargo is being transferred to the reefer vessel, and making sure that work is
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 5 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 6
being performed in a safe and efficient manner. The gang boss is responsible for enforcing
PacSteve’s safety policies when working on reefer vessels. Murphy Dec. at ¶ 17.
11. 	Before cargo operations begin, the gang boss holds a safety meeting
with the gang of longshoremen who will be working on the vessel. 	The purpose of this
meeting is to emphasize the need to work safely and to remind the workers of PacSteve’s
safety rules. PacSteve has developed a checklist of topics that the gang boss is required to
cover during this safety meeting. Among the topics addressed during the pre-shift safety
meeting is the possibility that the longshoremen will encounter frozen or slippery surfaces,
including slippery cargo hold decks. 	The gang boss reminds the longshore workers that
they may encounter such conditions, and that they should be careful about slipping. They
also are instructed to report any slippery or icy deck conditions that they do encounter to
the gang boss. 	If a longshore worker reports slippery or icy deck conditions to the gang
boss, the gang boss determines whether those conditions present an unreasonable risk, and
whether they can be remedied, or work must stop. Murphy Dec. at ¶ 18.
12. 	The gang boss inspects the cargo holds before the longshoremen begin
work in them. Part of the gang boss’s inspection includes inspecting the cargo hold decks
for any ice or other slippery substances. 	During cargo operations, the crews of reefer
vessels typically leave tools such as wooden mallets, shovels, and brooms in the cargo
holds that can be used by the longshoremen to break up and remove ice that has formed
that is impeding the stevedore’s work. 	If the gang boss observes unreasonably icy areas
on a cargo deck, or if members of the longshore gang report unsafe icy conditions to the
gang boss, the gang boss is responsible for correcting the unsafe condition. The gang boss
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 6 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 7
can instruct longshore workers to use the tools described above to remove the ice. 	The
gang boss also can ask the ship’s crew to assist in removing the ice. But the responsibility
for ensuring that ice that has formed on a cargo hold deck is removed ultimately remains
with the gang boss, not with the ship’s crew. Murphy Dec. at ¶¶ 19–21.
13. 	During periods of heavy precipitation, the cargo decks may be
slippery throughout the course of a cargo operation, even when longshoremen or vessel
crews are actively working to remove ice. In these circumstances, it is impossible to keep
the decks free of ice or slippery conditions. 	The gang boss determines if the slippery
conditions are such that the expert longshoremen can continue to safely work using
reasonable care, or if they need to stop work until conditions improve. 	Murphy Dec. at
¶ 23; Capt. Chong Dep. at 39:6–42:14; 45:8–18.
14. 	The 	Court 	finds 	that 	it 	is 	not 	reasonable 	for 	a 	professional
longshoreman to expect an ice-free deck inside of a freezer hold when the hatch cover is
open to the elements.
15. 	Vessels relinquish control of their cargo holds on the arrival of
PacSteve longshoremen. PacSteve workers are in charge of the cargo operations in those
cargo holds. 	Members of the ship’s crew sometimes enter the cargo holds during cargo
operations to discuss with the gang boss the location of cargo in accordance with the
stowage plan. The stowage plan is a plan that shows where specific lots of cargo will be
stowed in the cargo hold. The stowage plan is used to make sure that the cargo is offloaded
at the correct port and delivered to its purchaser. For example, a buyer in Korea may have
purchased 1,000 tons of frozen cod from a fishing company in Alaska. The stowage plan
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 7 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 8
will identify the cargo hold, deck level, and location on the deck where that cod is stowed,
which allows the cargo to be located and offloaded when the vessel reaches Korea. 	The
gang boss is provided a copy of the stowage plan so he knows where the cargo is supposed
to be stowed. 	While the ship’s crew checks to make sure that PacSteve’s workers are
stowing cargo in accordance with the stowage plan, the crew do not actively participate in
loading the cargo, and they do not supervise or direct PacSteve workers regarding their
work loading the cargo inside the hold. 	Murphy Dec. at ¶ 24. 	Capt. Chong credibly
testified that the vessel relies on the longshoremen to do their job safely because they are
professionals experienced in performing cargo operations in Dutch Harbor in icy and slick
conditions. Capt. Chong Dep. at 37:8–38:1. This testimony was supported by Joel Gumera
and was not contradicted by Nystrom. Trial Tr. Day 2 at 118:5–119:15.
16. 	While ice may form on cargo decks beneath an open hatch square, it
is less likely to form on those areas of the deck that are not located under the open hatch.
It is not possible for precipitation to fall on these covered areas of the lower cargo decks
because of the physical coverage of the higher decks. PacSteve provides its workers with
wheeled trolleys onto which they can land the cargo they are loading on a cargo deck. They
can then push these trolleys from the area of the cargo deck located beneath the hatch
square to areas of the cargo deck that are covered. This allows the longshoremen to push
the cargo trolleys from areas of the deck that may be slippery due to ice to the covered (and
thus dry) areas of the cargo deck where the cartons of seafood can be carried by the
longshoremen on the dry, non-slippery areas of the deck. 	Trial Tr. Day 1 at 29:9–18
(Henry).
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 8 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 9
17. 	As a “sign in” longshoreman, Nystrom would call into PacSteve’s
offices on days that he was available to work and, if work was available, PacSteve would
provide him with a job. 	Nystrom was not a full-time employee and was not guaranteed
any specific jobs. Murphy Dec. at ¶¶ 26–27.
18. 	Nystrom was first dispatched to work for PacSteve on April 16, 2017,
loading frozen fish onto the M/V SUAH (“S UAH ”), a reefer vessel owned and operated by
Defendants. Nystrom was dispatched to the SUAH a second time on April 25. Nystrom’s
third and final job as a “sign in” for PacSteve was again on the SUAH when he was
dispatched on April 29, 2017. Trial Tr. Day 1 at 127:19–131:5 (Nystrom); Trial Ex. D124.
19. 	Just after 2200h on April 29, 2017, in anticipation of PacSteve loading
cargo from the S EAFREEZE A MERICA , the crew of the SUAH shut off the refrigeration for
Hold No. 3 and opened the hatch cover. Capt. Chong Dep. at 38:13–18, 61:24–63:17; Trial
Tr. Day 2 at 115:18–2 (Gumera); Murphy Dec. at ¶ 9; Trial Ex. D106.
20. 	Nystrom arrived onboard the SUAH , along with gang boss Joel
Gumera and other longshoremen at 2310h. 	Capt. Chong Dep. at 52:19–53:12; Trial
Ex. D107, D124. Gumera brought the longshoremen to the break room, where he held a
safety meeting during which he expressly warned Nystrom (and all other longshoremen in
his gang) that the decks inside the freezer holds would be slick, and instructed the
longshoremen to be on the lookout and exercise extra care. 	Gumera reminded the
longshoremen to report any unreasonably unsafe conditions to him. 	Trial Tr. Day 2 at
12:7–9 (Nystrom); Trial Tr. Day 2 at 89:12–90:3 (Gumera); Trial Ex. D122.
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 9 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 10
21. 	Like most reefer vessels that call in Dutch Harbor, the S UAH has three
freezer holds that are accessed through hatch covers on the main deck. When the holds are
closed, they are kept well below freezing to ensure that the cargo remains frozen. 	Each
hold has three different decks on which the stevedore can store cargo. The C deck is the
lowest, followed by the B deck, then the A deck on top, just below the ship’s main deck.
The A and B decks have “tween deck” hatch openings that can be used to access the C
deck. When any of the hatch covers are open, the decks inside the freezer holds are exposed
to the elements. Murphy Dec. at ¶¶ 7–9; Capt. Chong Dep. at 48:5–20.
22. 	The parties presented conflicting evidence regarding which hold and
deck level Nystrom was working on at the time of his accident. Nystrom testified that he
was in Hold No. 1, which is closest to the bow of the ship, but the ship records show that
Nystrom and the gang of longshoremen did not load Hold No. 1 with cargo from the
S EAFREEZE A MERICA . Instead, the longshoremen loaded cargo in Hold No. 3 (the furthest
aft hold, closest to the stern), onto decks A, B and C, and a small amount of cargo in Hold
No. 2A. 	Trial Tr. Day 2 at 124:22–129:9; Capt. Chong Dep. at 55:14–59:15; Trial
Ex. D111. The Court finds that the ship’s contemporaneous records are accurate, and that
Nystrom’s accident happened in Hold No. 3. Nystrom further testified that he fell on the
lowest deck inside the hold—nearest the hull. This would be the C deck. Once again, the
ship’s records show that the only cargo loaded onto the C deck from the SEAFREEZE
A MERICA was a small amount loaded in 3C, which was loaded on top of previously loaded
cargo. Id. The Court concludes that the incident could not have occurred on the C deck as
Nystrom testified and must have occurred on either the A deck or B deck of Hold No. 3.
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 10 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 11
23. 	Given the ship’s records, Nystrom’s testimony regarding his work
shift and the location and condition of the cargo hold in which he slipped and fell is not
credible. At first, Mr. Nystrom testified that he was in the hold closest to the bow and in
the bottom hold or Hold No. 1. Trial Tr. Day 1 at 77:4–22 (Nystrom). He was adamant
that he slipped in the bottom of that hold or Hold No. 1C. 	Trial Tr. Day 1 at 77:4–22;
79:14–18; 145:2–4 (Nystrom). Nystrom knew it was the bottom of the vessel because he
remembered going down three sets of ladders. Trial Tr. Day 1 at 77:4–22 (Nystrom). He
testified he started work at 3:15 p.m. the day before his accident. Trial Tr. Day 1 at 103:25–
104:6; 127:3–15 (Nystrom). Nystrom was sure that the hold in which he slipped was empty
of cargo when his gang started loading that day. 	Trial Tr. Day 1 at 78:2–6; 80:21–23
(Nystrom). He was adamant it was empty, repeatedly referring to it as a “freshly opened”
hold, meaning it had no cargo in it yet. Trial Tr. Day 1 at 77:4–9; 145:5–9 (Nystrom).
24. 	Nystrom’s 	testimony 	changed 	on 	cross-examination, 	or 	was
disclaimed by his attorney. 	After Nystrom was shown the ship’s cargo-loading receipts
and stowage plan reflecting that his gang had not worked in Hold No. 1 at all, he said he
slipped while working in the middle hold or Hold No. 2. Trial Tr. Day 1 at 147:25–148:6
(Nystrom). 	After being shown that the only bottom-deck hold in which Nystrom’s gang
worked was Hold 3C, but that 3C was nearly full at the time his gang started working and
his gang stood on top of already stacked fish boxes and never touched the floor of that hold,
Nystrom’s lawyer said it appears he fell in Hold 3B. Trial Tr. Day 2 at 144:11–14 (Choate).
Nystrom said he now recalled going down only two sets of ladders, which would have put
him on deck B. Trial Tr. Day 2 at 6:8 (Nystrom). After being shown that Hold 3B was not
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 11 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 12
empty when his gang started working, Nystrom said he now recalled there was already
frozen cargo in the hold. Trial Tr. Day 2 at 8–14 (Nystrom). After reviewing his timesheet
that showed he started his shift that day at 10:45 p.m. (more than 7 hours after the 3:15 p.m.
start time he claimed on direct examination), Nystrom said he must have been mistaken
about when he started working that day. Trial Tr. Day 1 at 128:22–129:18 (Nystrom).
25. 	The 	longshoremen 	began 	loading 	cargo 	from 	the 	SEAFREEZE
A MERICA onto the SUAH at approximately 2315h. Capt. Chong Dep. at 53:8–15. Because
the S EAFREEZE A MERICA was the last fishing vessel from which the SUAH accepted cargo
before departing for Asia, all of the vessel’s cargo holds and decks held cargo from
previous fishing vessels. Trial Tr. Day 2 at 125:22–133:14 (Gumera); Capt. Chong Dep.
at 53:22–56:25; Trial Ex. D111.24. 	The PacSteve gang worked in Hold 3 without issue
for approximately 4 or 5 hours. After a break, Nystrom went back to work at approximately
0300h on April 30. He testified that it was a “new hold” that was “empty” of product, but
once again Nystrom appears to be mistaken. 	The ship’s records and testimony from
Capt. Chong and Gumera show that the longshoremen were still loading Hold No. 3 and
that since this was the last cargo loaded onboard, none of the holds were empty of product.
Trial Ex. D111; Trial Tr. Day 2 at 124:22–128:14 (Gumera).
26. 	Nystrom testified that he knew the moment that he stepped onto the
deck in the freezer hold after his break that it was slick. 	Trial Tr. Day 1 at 82:7–12
(Nystrom). 	He variously described it as a sheet of ice or an ice rink, but also as “a little
slippery” and as having slippery “spots.” 	Trial Tr. Day 1 at 80:7–8, 82:7–12, 118:23–
119:25, 136:4–17; Trial Tr. Day 2 at 52:6–53:5 (Nystrom). 	According to Nystrom, there
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 12 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 13
were three vessel crewmembers inside the hold with the longshoremen: the vessel’s bosun,
directing where the cargo went; and two other unnamed vessel crewmembers using mallets
to chip and clear up ice as the longshoremen continued to work. Nystrom testified that the
two vessel crewmembers were using large wooden mallets to break ice underneath the open
hatch area while the stevedores loaded the cargo. Nystrom testified that gang boss Gumera
was not in the hold with him. 	Trial Tr. Day 1 at 77:4–81:20. 	The two unnamed vessel
crewmembers, according to Nystrom, were focused on breaking up the ice in the area “open
to the elements” because “that was the most dangerous point.” Id. at 92:23–93:4. Nystrom
testified that he does not fault the vessel crew, because “[t]hey were trying to do their job.”
Id. at 91:23–25. 	Nystrom himself did not report the slippery condition to gang boss
Gumera. Id. at 140:22–25.
27. 	Approximately 	fifteen 	minutes 	after 	starting 	work 	in 	the 	hold,
Nystrom testified that he fell, injuring his left shoulder. Docket 37 at 12.
28. 	Gumera’s testimony contradicted Nystrom’s in several material ways.
First, Gumera testified that he inspected the hold before allowing his gang to start work on
the evening of April 29 and found it to be in fine condition. 	He testified that there were
some slick patches, which could not be avoided, but it was nothing unusual and nothing
they could not work around. Trial Tr. Day 2 at 94:4–95:3 (Gumera). Gumera also recalled
being inside the hold stacking boxes with the longshoremen when Nystrom fell. 	He
specifically recalls seeing Nystrom just after he fell, while he was still on the ground. Id.
at 107:14–23 (Gumera). He went to look at the spot where it occurred and likened it to a
patch of frost that he had not noticed before. Gumera testified that it was slick, but it did
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 13 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 14
not consist of ice that could be broken up or removed. 	Id. at 104:11–17, 112:2–113:7;
133:19–21, 136:11–15 (Gumera). Gumera disputed that there were two crewmembers in
the hold breaking ice and testified that ice breaking was not needed in any event. 	Id. at
94:4–95:3. After Nystrom fell, Gumera and the longshoremen continued to load cargo in
the same hold without incident. Id. at 133:22–134:7.
29. 	The Court finds that the cargo deck in question was not covered in ice
and there was no ice or slick condition beyond the usual conditions reasonably expected
by PacSteve longshoremen in an open freezer hold exposed to the elements. 	As noted
above, only that portion of the cargo deck that lies beneath the open hatch cover is exposed
to precipitation. 	Most of the cargo deck is covered by the overhanging deck and
precipitation cannot fall on those areas of the cargo deck. 	There are no other sources of
water in the cargo hold. 	Gumera inspected the cargo hold before cargo operations
commenced to make sure conditions were reasonably safe. 	Furthermore, Defendants’
weather expert testified that there had been only trace amounts of precipitation during
periods in April 2017 when the hatch cover to Hold No. 3 had been open. Trial Tr. Day 3
at 10:12–13:13 (Dr. Bond). 	This would be sufficient to wet a sidewalk, but not form a
puddle. 	Id. 	These conditions are not conducive to formation of significant ice. Further,
both Gumera and Murphy testified that they have never in their lengthy careers as
longshoremen seen a “sheet of ice” inside a freezer hold as Nystrom described it. Trial Tr.
Day 2 at 112:2–113:7 (Gumera); Day 2 at 167:3–6 (Murphy). 	Based on the evidence
presented, the Court finds that any ice or slippery spots inside Hold No. 3 on April 29 and
30, 2017, were consistent with PacSteve’s expected and usual working conditions and were
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 14 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 15
not unreasonably unsafe for a professional stevedore in Dutch Harbor. 	The Court finds
that the slick spot was caused by trace precipitation as it fell into the open freezer hold
while the longshoremen worked.
30. 	The Court concludes that no one, including the vessel crew, had notice
of the slippery patch that had formed until Nystrom slipped on it, and further finds that it
is the type of condition in which professional stevedores routinely work, and that the
slippery spot did not create an unreasonably hazardous condition.
31. 	After leaving the SUAH, on May 1, 2017, PacSteve required Nystrom
to submit to a mandatory post-accident drug test. 	The test was positive for marijuana.
Pursuant 	to 	PacSteve’s 	drug 	and 	alcohol 	policies, 	PacSteve 	terminated 	Nystrom’s
employment eligibility due to his positive drug test. 	Trial Tr. Day 2 at 40:24–43:17
(Nystrom); Trial Ex. D146; Dr. Damon Borg Dep. at 15:10–14.
32. 	Nystrom testified that he was a regular user of marijuana when in
California, where he had a medical marijuana license, grows marijuana, and smokes daily,
but he denied using marijuana while working for PacSteve. Trial Tr. Day 2 at 41:17–45:18
(Nystrom). 	Defendants’ toxicologist Damon Borg testified that the drug test results
indicated that Nystrom had in fact consumed marijuana within 2–4 days of the May 1,
2017, test, which would have been during his employment with PacSteve. The Court finds
Dr. Borg’s testimony to be credible and that Nystrom was dishonest concerning his
marijuana use while working for PacSteve.
33. 	Murphy 	testified 	that, 	as 	president 	of 	PacSteve, 	he 	would 	not
recommend reemployment of a “sign in” longshoreman who had tested positive for
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 15 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 16
marijuana in a post-incident test and that, as a company, PacSteve does not hire
longshoremen who have prescriptions for medical marijuana.
34. 	Nystrom returned home to California for treatment for his left
shoulder. In February 2019, Plaintiff’s treating physician Dr. Lenihan found that Nystrom
had reached maximum medical improvement and released him back to work with
restrictions that he not engage in repetitive overhead work that involved lifting over 40
pounds. 	Dr. 	Michael 	Lenihan 	Dep. 	at 	35:22–37:22; 	52:3–7. 	Defendants’ 	expert
Dr. Battaglia testified that Nystrom’s surgery was a routine out-patient surgery, and his
recovery was successful. In light of Nystrom’s excellent physical condition, Dr. Battaglia
would not place any restrictions on the use of Nystrom’s left shoulder. 	Dr. Michael
Battaglia Dep. at 31:9–34:13. 	Having evaluated Nystrom’s demeanor, his current work,
and Dr. Battaglia’s more recent evaluation (Dr. Lenihan last saw Plaintiff in 2019), the
Court finds that Dr. Battaglia’s testimony is more credible and concludes that Nystrom
does not have future restrictions as a result of his 2017 left shoulder injury.
35. 	Nystrom returned to work for UniSea for the “A” season in 2020. He
worked both the “A” season and the “B” season at UniSea for the first time in 2022. Trial
Tr. Day 2 at 26:5–27:13 (Nystrom); Trial Ex. D149 at 239:1–240:21.
36. 	Nystrom testified that, due to his receipt of workers’ compensation
benefits, his earnings were higher in 2017, 2018, and 2019 than any year he had ever
reported earnings for the past 30 years. 	Trial Tr. Day 2 at 20:17–18, 23:3–6 (Nystrom).
The Court finds that Nystrom has not shown any past wage loss resulting from his 2017
injury.
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 16 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 17
37. 	Defendants’ vocational expert credibly testified that Nystrom is
earning higher wages post-injury than he was pre-injury. 	Trial Tr. Day 3 at 44:21–45:5
(Berg). Nystrom conceded he is earning more now than before the injury. Trial Tr. Day 2
at 23:12–19 (Nystrom).
38. 	Nystrom testified that if it were not for his injury in this case, his intent
was to find housing in Dutch Harbor and obtain full time employment with PacSteve.
Nystrom admits that he only worked as a temporary longshoreman for three jobs prior to
the injury. 	Trial Tr. Day 2 at 52:5–10 (Nystrom). Defendants presented testimony from
economist Brett Partin, who reviewed PacSteve’s hiring records and Nystrom’s work
history. 	Partin credibly testified that, based on his seasonal pattern of work, changing
employers, and the high turnover at PacSteve, Nystrom statistically was very unlikely to
obtain full time work as a PacSteve longshoreman. Trial Tr. Day 3 at 88:23–91:17 (Partin).
Vocational expert John Berg similarly opined that Nystrom’s work and earnings history
strongly suggested he would not have become a full-time longshoreman. Trial Tr. Day 3
at 40:7–42:17 (Berg). The Court agrees and finds that Nystrom has not shown any loss of
earning capacity as a result of this incident.
II. 	CONCLUSIONS OF LAW
1. 	Plaintiff asserts claims against Defendants under the Longshore and
Harbor Workers Compensation Act (“LHWCA”), 33 U.S.C. § 905(b). 	This Court has
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, and 1333.
2. 	Section 905(b) of the LHWCA gives an injured longshoreman a cause
of action against a vessel for its negligence. 	The parties do not dispute that Nystrom’s
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 17 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 18
claims are governed by the LHWCA or that Defendants are a “vessel” for purposes of the
Act.
3. 	Prior to 1972, a longshoreman injured in the course of his employment
could receive modest compensation payments from his employer, the stevedore, and he
also could bring an action against a vessel owner where he could recover if he could prove
that the owner was negligent or that the ship was unseaworthy. 	“Unseaworthiness could
be proven merely by showing that a dangerous condition existed on the ship; no showing
of fault on the part of the owner was necessary, and even if the unsafe condition had been
created by the stevedore, the shipowner was liable for the longshoreman’s injuries.” Lieggi
v. Maritime Co. of Philippines, etc., 667 F.2d 324, 326 (2d Cir. 1981). 	But, in 1972,
Congress amended the LHWCA. 	It sharply increased the compensation a longshoreman
could recover from his stevedore employer. But, the revised statute abolished the warranty
of seaworthiness and provided that recovery was possible against the vessel owner only if
the longshoreman could show that the vessel owner was negligent. See 33 U.S.C. §§ 904,
905, 906.
4. 	In Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156,
101 S. Ct. 1614 (1981), the United States Supreme Court identified three primary duties
that a vessel owner owes a longshoreman for purposes of the LHWCA. 	Although the
primary responsibility for the safety of the longshoremen rests upon the stevedore, the
vessel owes to longshore workers aboard the vessel: (1) the “turnover duty,” which relates
to the condition of the vessel upon the commencement of stevedoring operations; (2) the
“active control duty,” which applies once stevedoring operations have commenced and
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 18 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 19
provides that the vessel must exercise reasonable care to prevent injuries to longshoremen
in areas that remain under the active control of the vessel; and (3) the “duty to intervene,”
which concerns the vessel’s obligation with regard to cargo operations in areas under the
principal control of the stevedore. 	Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92,
97–98 (1994) (citing Scindia, 451 U.S. at 166 (cleaned up)). Following this Court’s order
on summary judgment, only the active control duty remains at issue. ECF No. 37.
5. 	Under the active control duty, the vessel will be liable if it actively
involves itself in cargo operations and, in so doing, negligently injures a longshoreman, or
if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they
may encounter in areas, or from equipment, that are under the active control of the vessel
during the stevedoring operation. Scindia, 451 U.S. at 167; Howlett, 512 U.S. at 98. The
obligation of a vessel to act reasonably if it actively participates in cargo operations, and
to avoid exposing the longshoremen to harm from hazards they may encounter in areas
under the active control of the ship, must be viewed from the perspective of an expert and
experienced longshoreman. 	Marable v. United States, 2017 U.S. Dist. LEXIS 210383 at
*13 (S.D. Cal. Dec. 21, 2017) (citing Scindia, 451 U.S. at 166–67 (“This duty extends at
least to exercising ordinary care under the circumstances to have the ship and its equipment
in such condition that an expert and experienced stevedore will be able by the exercise of
reasonable care to carry on its cargo operations with reasonable safety to persons and
property”)).
6. 	To trigger the active control duty, “the vessel must have substantially
controlled or been in charge of (i) the area in which the hazard existed, (ii) the
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 19 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 20
instrumentality which caused the injury, or (iii) the specific activities the stevedore
undertook.” Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 540 (3d
Cir. 1994).
7. 	If the active control duty is triggered, to recover against the vessel
plaintiff must show “(1) that the vessel appreciated, should have appreciated, or with the
exercise of reasonable care would have appreciated, the condition; (2) that the vessel knew,
or should have known, that the condition posed an unreasonable risk of harm to a longshore
worker; (3) that a longshore worker foreseeably might fail to (i) either discover the
condition or apprehend the gravity and probability of the harm, or (ii) protect himself or
herself from the danger; and (4) that the vessel failed to take reasonable precautionary or
remedial steps to prevent or eliminate the dangerous condition.” Davis, 16 F.3d at 541.
8. 	Nystrom testified that the vessel’s bosun was inside the hold making
sure the cargo was placed according to the stowage plan and that there were two other
crewmembers actively removing ice as it formed inside the hold. 	He asserts that this
amounts to active control, requiring the vessel crew to exercise reasonable care to prevent
injury to him. 	The Court does not find Nystrom’s testimony regarding ice breaking
credible in light of Gumera’s testimony and evidence that there had not been precipitation
in April 2017 that would have formed sufficient ice to break.
9. 	Even if the Court were to credit Nystrom’s testimony that two
crewmembers 	were 	breaking 	ice 	in 	the 	hold, 	Nystrom 	has 	not 	shown 	that 	two
crewmembers removing ice out of the way of the longshoremen would equate to substantial
control of the hold as to activate the active control duty. Indeed, Nystrom admits that the
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 20 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 21
crewmembers were working out of the way of the longshoremen and not interfering in their
activities. 	These activities do not amount to substantial control and would not lull a
reasonable longshoreman into thinking that the vessel’s crew would ensure that the deck
was ice free.
10. 	Nystrom also has not shown that the vessel’s crew were negligent.
His theory, stated plainly, is that the deck inside the freezer hold was too slick and the
vessel’s crew should have done more to clear the ice. But the vessel’s crew’s actions and
the reasonableness of the condition of the freezer hold must be viewed from the perspective
of an expert and experienced stevedore working in Alaska. Gumera and Murphy testified
that decks routinely were slippery in freezer cargo holds, and that stevedores were
accustomed to and expected slippery conditions. The Court concludes that an expert and
experienced stevedore would not have reasonably expected the vessel crew to remove all
ice from the deck as it formed. 	Ice forming on the deck while there is precipitation is
inevitable and expected and is not an unreasonable hazard for professional longshoremen.
Put another way, a vessel owner who hires professional longshoremen in Dutch Harbor is
entitled to rely on the stevedore to know how to navigate reasonably icy conditions in
freezer holds. Finally, to the extent that the crew were actively cleaning ice up as it formed,
the Court finds that they acted reasonably in doing so and were not negligent.
III. 	CONCLUSION
Plaintiff’s negligence claim is denied. 	The Clerk is directed to enter
judgment in favor of Defendants.
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 21 of 22

Nystrom v. Khana Marine LTD., et al. 	Case No. 3:20-cv-00098-JMK
Decision and Order 	Page 22
IT IS SO ORDERED this 19th day of March, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
Case 3:20-cv-00098-JMK Document 100 Filed 03/20/24 Page 22 of 22