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
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT
Before the Court is Defendants’ Motion for Summary Judgment.1 	Plaintiff
opposed Defendants’ motion,2 and Defendants replied to Plaintiff’s opposition.3 	Oral
argument was not requested and is not deemed necessary. 	For the following reasons,
Defendants’ motion is GRANTED IN PART and DENIED IN PART.
1 Docket 34.
2 Docket 35.
3 Docket 36.
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I. 	BACKGROUND
The parties represent to the Court that the material facts in this case are not
in dispute.4 On April 29, 2017, Plaintiff began a shift as a longshore worker employed by
Pacific Stevedoring (“PacSteve”) in Dutch Harbor, Alaska.5 Defendants hired PacSteve as
a stevedore to discharge from the M/V SUAH (the “Vessel”) cargo consisting of packages
of frozen fish weighing approximately 50 to 55 pounds each.6 	Plaintiff’s shift was
scheduled to last approximately 18 hours, beginning at 3:15 p.m. local time on April 29,
2017, and ending on April 30, 2017.7
Plaintiff began his shift by working without incident in two “holds” of the
Vessel.8 	At some time around or before 3:00 a.m. on April 30, Plaintiff entered a third
hold (“Hold 3”) of the Vessel.9 Prior to entering Hold 3, Plaintiff’s supervisor, PacSteve
gang boss Joel Gumera, warned Plaintiff and his fellow longshore workers that conditions
4 See Docket 35 at 4 (“Plaintiff does not contest the bulk of Defendants’ summary of
relevant facts, [sic] but does have issue with certain conclusions and generalities masquerading as
facts.”); Docket 36 at 1 (“The parties agree on the material facts.”). Despite acknowledging that
the parties appear to agree on the material facts, Plaintiff argues that Defendants “draw false
conclusions based upon inference” and paint a “misleading picture” of the facts. Docket 35 at 2,
4. Because Defendants do not challenge Plaintiff’s recitation of the material facts as articulated in
Plaintiff’s opposition to Defendants’ summary judgment motion, and for the purposes of reciting
the facts in this order, the Court largely will describe the factual allegations as they are set forth in
Plaintiff’s opposition at Docket 35 and Verified Amendment Complaint at Docket 4.
5 Docket 4 at 2–3 ¶¶ 8, 11–12 (V. Am. Compl.).
6 Id. at 3 ¶¶ 11, 13. 	At the time of the events giving rise to Plaintiff’s complaint,
Defendant Nok Co. Ltd. S.A. owned the Vessel, and Defendant Khana Marine Ltd. managed the
Vessel. Docket 15 at 2 ¶¶ 2–3 (Defs.’ Answer).
7 Docket 4 at 3 ¶ 12.
8 Docket 35 at 3.
9 Id. at 3–4.
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would be “really icy” and that the hold “was going to be a mess.”10 Earlier, at the start of
his shift on April 29, Plaintiff had participated in a customary safety meeting during which
Gumera discussed the potential for the PacSteve longshore workers to experience “frozen
and slippery conditions.”11 According to Plaintiff, Gumera warned the longshore workers
about the conditions in Hold 3 because the hold had “been just opened” about 45 minutes
prior to the longshore workers’ entry, meaning that the hatches securing the frozen cargo
and refrigerated portions of the Vessel were exposed to the elements beginning around or
shortly after 2:00 a.m. on April 30.12 The Vessel’s captain, Pyong Ho Chong, testified that,
at 10:00 p.m. on April 29, his crewmembers turned off the refrigeration units that help keep
the temperatures in Hold 3 low and, in turn, the cargo frozen.13 The record suggests, and
neither party disputes, that the temperature in Hold 3 may have remained around or below
freezing when Plaintiff and his colleagues first entered the hold.14
10 Docket 34-2 at 12:2–9 (Nystrom Dep.). Defendants provided local climatological data
from the National Oceanic and Atmospheric Administration (“NOAA”) indicating that the
temperature in Dutch Harbor on April 29 and April 30 ranged from a low of 36 degrees to a high
of 49 degrees Fahrenheit, with approximately 0.39 inches of precipitation taking the form of “rain,
melted snow, etc.” falling on April 29 and approximately 0.16 inches of precipitation taking the
form of “rain, melted snow, etc.” falling on April 30. Docket 34-2 at 78 (Record of Climatological
Observations). 	On April 29, the NOAA data identifies measurable precipitation in the morning
hours and minimal or trace amounts of precipitation around 2:00 and 3:00 p.m., immediately
before Plaintiff’s shift began. 	Id. at 84. 	However, the NOAA data is “missing” how much
precipitation, if any, fell in Dutch Harbor between 4:00 p.m. on April 29 and 2:00 a.m. on April 30,
although it indicates that trace amounts of precipitation fell between 3:00 a.m. and 6:00 a.m. on
April 30. Id.
11 Docket 34-2 at 9–10.
12 Id. at 8:16-17, 12:23–24.
13 Docket 34-2 at 62, 67:10–17 (Chong Dep.).
14 See Docket 34-1 at 4–5 ¶ 14 (Murphy Decl.) (“[T]he cargo holds are chilled before
cargo operations begin, so the temperature of the cargo decks may be below freezing when the
cargo operations start. 	If the outside temperature is near freezing, the cargo temperature in the
cargo hold may remain below freezing for several hours after the cargo hold has been opened.”).
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Gumera’s warning was prescient. 	After entering Hold 3, Plaintiff and his
colleagues discovered what Plaintiff estimates to have been “approximately two to three
millimeters” of ice on the longshore workers’ walking surface.15 	Plaintiff reports that
several 	of 	his 	more 	experienced 	colleagues 	expressed 	complaints 	to 	the 	Vessel’s
crewmembers about the icy and slippery condition of Hold 3.16 	He describes their
complaints as follows:
And the biggest complaint that night was, “It’s a slippery hold.
We should not be in here. This is not right. This is not right.
We can’t push our product from one side of the hold to the
other side of the hold without slipping.” That was our biggest
complaint that night. “This is a slip hazard.”17
Despite some conversation between the PacSteve longshore workers and the
Vessel’s crewmembers concerning the ice, the longshore workers began working in
Hold 3.18 As they worked, two crewmembers—who were employed by or at least under
the control of one or both Defendants—were present with the longshore workers and
actively engaged in “de-icing” the walking surface as the longshore workers worked.19 The
crewmembers used “large wooden mallets or hammers . . . to break up the ice” present on
15 Docket 35 at 3. The parties dispute whether Plaintiff and his colleagues were standing
directly on the floor of Hold 3 or on top of cargo stacked in Hold 3, but Defendants contend that
this dispute is immaterial and, in any event, acknowledge for the purposes of their motion that
Plaintiff slipped on ice. Docket 34 at 3, 11. The Court is aware of this dispute and agrees with
Defendants that it is immaterial. Regardless, the Court simply will refer to the “walking surface”
in Hold 3 upon which Plaintiff was present at the time of the events giving rise to his claims.
16 Docket 35 at 3.
17 Docket 34-2 at 8:6–11.
18 Id. at 13, 19–20. 	Plaintiff testified that these conversations took place in a foreign
language that he could not understand. Id. at 19:9–13.
19 Docket 35 at 3.
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the walking surface and “sweep it to the side.”20 	Notwithstanding their efforts, at least
some ice remained on the walking surface of Hold 3 at around 3 a.m. when Plaintiff picked
up a package of frozen fish, began walking, slipped, and fell.21 Plaintiff contends that he
“suffered immediate pain” from a dislocated shoulder that he “pushed . . . back into place”
before stopping work and reporting the injury to his supervisor.22
Plaintiff received treatment for his injury over the course of the following
year, which culminated in surgery and his participation in a comprehensive rehabilitation
program.23 	Plaintiff alleges that he now must live with restrictions preventing him from
returning to his previous occupation.24 He filed this negligence suit, seeking compensation
for his injuries under Section 905(b) of the Longshore and Harbor Workers’ Compensation
Act (“LHWCA” or the “Act”), 33 U.S.C. § 905(b).25 	After conducting discovery,
Defendants brought this motion for summary judgment, seeking dismissal of all of
Plaintiff’s claims with prejudice.26
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), a court must “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The moving party bears the burden
20 Id. at 3–4.
21 Id. at 4.
22 Docket 4 at 3 ¶¶ 14–16.
23 Id. at 4–5 ¶¶ 25, 27–29.
24 Id. at 5 ¶¶ 30–32.
25 Id. at 4.
26 Docket 34.
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of showing that “there is an absence of evidence to support the nonmoving party’s case.”27
If the moving party meets this burden, the burden shifts to the non-moving party to
“designate ‘specific facts showing that there is a genuine issue for trial.’”28 	The non-
moving party cannot rely on “mere allegations or denials”; instead, the evidence must be
such “that a reasonable jury could return a verdict for the nonmoving party.”29
To support or defend against a motion for summary judgment, the parties
must: 	(1) cite to particular portions of materials in the record, including, but not limited
to, depositions, documents, declarations, or other discovery materials; or (2) demonstrate
that the materials cited fail to establish the presence or absence of a genuine dispute or that
the opposing party cannot produce admissible evidence to support a factual allegation.30
A court may, but need not, consider materials in the record to which the parties do not
cite.31 A court’s focus should be on the admissibility, rather than the form, of the substance
of evidence offered.32
In reviewing the record on a motion for summary judgment, a court must
“view the facts and draw reasonable inferences” in the light most favorable to the non-
moving party.33 	If “both parties assert[] that there are no uncontested issues of material
27 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
28 Id. at 324 (quoting Fed. R. Civ. P. 56(e)); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (quoting Fed. R. Civ. P. 56(e)).
29 Anderson, 477 U.S. at 248 (citations omitted).
30 Fed. R. Civ. P. 56(c)(1).
31 Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th
Cir. 2001).
32 See Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (“At summary
judgment, a party does not necessarily have to produce evidence in a form that would be admissible
at trial.”) (citation and internal quotation marks omitted).
33 Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted).
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fact,” a court still must “determine whether disputed issues of material fact are present.”34
However, when the non-moving party’s version of the facts is “blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.’”35 	Similarly, no
genuine dispute exists “where the only evidence presented is ‘uncorroborated and self-
serving’ testimony.”36
III. 	DISCUSSION
Plaintiff’s 	negligence 	claim 	is 	premised 	on 	two 	duties—and 	their
corollaries—that he alleges Defendants owed him pursuant to the LHWCA: the turnover
duty and the active control duty.37 Plaintiff claims that Defendants breached these duties
of reasonable care by failing to “provide a deck free from the hazards of ice despite taking
on the affirmative obligation to do so.”38 	Defendants acknowledge the existence of the
turnover and active control duties, but contend that, under the circumstances of this case,
they do not equate to a duty to ensure that the holds in which Plaintiff worked would be
free of ice.39 The Court provides a brief overview of the limited duties established by the
34 United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978).
35 Scott, 550 U.S. at 380.
36 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting
Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)) (citing Johnson v. Washington
Metro. Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989)); see also Oakley, Inc. v. McWilliams,
584 Fed. App’x 528, 529 (9th Cir. 2014) (citations omitted) (“[A party’s] self-serving and
uncorroborated declarations . . . are insufficient to avert summary judgment.”).
37 Docket 4 at 4 ¶¶ 20–23; Docket 35 at 4.
38 Docket 35 at 2.
39 Docket 34 at 3.
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LHWCA and then addresses the parties’ arguments concerning each alleged duty and its
applicable corollaries in turn.
A. 	The LHWCA and a Vessel Owner’s Limited Duties
The LHWCA established a statutory scheme pursuant to which a longshore
worker’s employer, typically the stevedoring company, bears responsibility for providing
a “reasonably safe” place of employment to its longshore workers.40 	However, the Act
allows a longshore worker to recover from a vessel when the vessel’s negligence causes
the longshore worker harm.41 	In the years following the LHWCA’s enactment, the
Supreme Court defined, and the lower courts applied, the limited duties of care that vessels
owe longshore workers under Section 905(b).42 	The Supreme Court identified three
primary duties:
The first, which courts have come to call the “turnover
duty,” 	relates 	to 	the 	condition 	of 	the 	ship 	upon 	the
commencement of stevedoring operations. 	The second duty,
applicable once stevedoring operations have begun, provides
that a shipowner must exercise reasonable care to prevent
injuries to longshoremen in areas that remain under the “active
control of the vessel.” 	The third duty, called the “duty to
intervene,” concerns the vessel's obligations with regard to
cargo operations in areas under the principal control of the
independent stevedore.43
40 33 U.S.C. § 941(a).
41 33 U.S.C. § 905(b). 	The Act’s definition of “vessel” includes the vessel’s owners,
agents, operators, masters, officers, and crewmembers. 33 U.S.C. § 902(21).
42 See generally Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981) (outlining
history of the 1972 amendments to the LHWCA and general nature of the duties left for the courts
to develop); Murray v. S. Route Mar. SA, 870 F.3d 915, 918–19 (9th Cir. 2017) (applying the
turnover duty); Scheuring v. Traylor Bros., 476 F.3d 781, 788 (9th Cir. 2007) (citations omitted)
(“The Supreme Court has indicated that Congress left to the courts the task of defining the vessel
owner’s duty of care.”).
43 Howlett v. Birkdale Shipping Co., 512 U.S. 92, 97–98 (1994) (quoting Scindia, 451
U.S. at 167–68).
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The Ninth Circuit Court of Appeals has delineated the “five distinct aspects”
of these duties as: (1) the turnover duty of safe condition; (2) the turnover duty to warn;
(3) the active involvement duty; (4) the active control duty; and (5) the intervention duty.44
However, courts generally construe the active involvement and active control duties as
one.45
Both aspects of the turnover duty and the active control duty are at issue
here.46 	Plaintiff also appears to allege in his opposition that Defendants’ conduct
implicated two other categories of duties: (1) “duties established under contract and local
custom and practice when [Defendants’] turned over the Vessel with an unreasonably icy,
slippery hold,” and (2) a “duty to the crew of longshoremen to keep the hold clear of ice
hazards” that arose when Defendants “affirmatively undert[ook] the task of de-icing the
hold while the longshoremen worked.”47 Because courts have not recognized the existence
of other duties beyond those mentioned above,, and Plaintiff does not expressly delineate
these as separate duties in his complaint, the Court will consider these alleged duties, to
44 Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204, 1207 (9th Cir. 1989)
(citing Scindia, 451 U.S. 156).
45 See Howlett, 512 U.S. 92, 98 (1994) (describing a singular duty applicable to events
occurring once stevedoring operations begin); Christensen v. Georgia-Pacific Corp., 279 F.3d
807, 812 (9th Cir. 2002) (citations omitted) (“[A] vessel owes three duties to its stevedores: the
turnover duty, the active control duty, and the intervention duty.”). For the purposes of this order,
the Court will refer simply to the “active control duty,” rather than both the active control and
active involvement duties.
46 Docket 4 at 4 ¶¶ 20–23; Docket 34 at 20; Docket 35 at 4.
47 Docket 35 at 2.
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the extent they exist, within the confines of the turnover and active control duties primarily
at issue.48
B. 	The Turnover Duty
The turnover duty concerns the condition of the vessel at the time stevedoring
operations begin.49 	This duty is twofold in nature. 	It entails a duty to ensure that the
vessel’s condition at the time of turnover is acceptable (i.e., the “turnover duty of safe
condition”) and a duty to warn the stevedore of any hazards that the vessel should
reasonably expect the stevedore to face (i.e., the “turnover duty to warn”). As the Supreme
Court explained:
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, and
to warning the stevedore of any hazards on the ship or with
respect to its equipment that are known to the vessel or should
be known to it in the exercise of reasonable care, that would
likely be encountered by the stevedore in the course of his
cargo operations and that 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.50
The twin turnover duties do not require a vessel owner to eliminate all
hazards before turning over the vessel, but the vessel must be free of hazards that would
48 See Docket 4 at 4 ¶¶ 20–23 (omitting express references to contract, local custom,
practice, or affirmative actions); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir.
2008) (citations omitted) (“[Where] the complaint does not include the necessary factual
allegations to state a claim, raising such claim in a summary judgment motion is insufficient to
present the claim to the district court.”).
49 Howlett, 512 U.S. at 98 (citing Scindia, 451 U.S. at 167).
50 Scindia, 451 U.S. at 166–6 (citing Marine Terminals v. Burnside Shipping Co., 394
U.S. 404, 416 n.18 (1969)).
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prevent an expert and experienced stevedore from carrying on its operations “in a
reasonably safe manner.”51 To the extent a hazard is “obvious,” it cannot “present . . . an
unreasonably dangerous work environment to experienced longshoremen exercising
reasonable care.”52
When a hazard is not obvious, the turnover duty to warn often is implicated.
This duty, as applied to non-obvious conditions, “is a narrow one.”53 It extends to “latent
hazards . . . that would be neither obvious to nor anticipated by a competent stevedore in
the ordinary course of cargo operations.”54 	Such hazards either must be “known to the
vessel” or “should be known to it in the exercise of reasonable care.”55 In the absence of
actual knowledge, a vessel must provide a warning “only if the exercise of reasonable care
would place upon the shipowner an obligation to inspect for, or discover, the hazard’s
existence.”56 Vessels have no duty “to supervise or inspect ongoing cargo operations for
the benefit of longshoremen.”57
Courts 	applying 	these 	principles 	repeatedly 	have 	determined 	that 	the
question of whether a vessel acted reasonably typically “is inappropriate for resolution at
51 Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994) (citing Bjaranson,
873 F.2d at 1208).
52 Id. (quoting Martinez v. Korea Shipping, 903 F.2d 606, 610 (9th Cir. 1990)).
53 Howlett, 512 U.S. at 105.
54 Id. at 99.
55 Scindia, 451 U.S. at 167.
56 Howlett, 512 U.S. at 100 (citing Kirsch v. Plovidba, 971 F.2d 1026, 1029 (3d Cir.
1992)). 57 Id. at 102.
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the summary judgment stage.”58 	Indeed, “[s]ummary judgment is rarely granted in
negligence cases. Whether the defendant acted reasonably is ordinarily a question for the
trier of fact.”59
Here, Plaintiff alleges that Defendants breached both the turnover duty of
safe condition and the turnover duty to warn.60 The Court begins its analysis by focusing
on the only “hazard” underlying Plaintiff’s claims: 	the presence of ice on the walking
surface of Hold 3.61 Notably, the record does not reveal the precise condition of Hold 3’s
walking surface at the time the crewmembers turned the Vessel over to PacSteve. Nor does
the record clearly indicate at what time the crewmembers turned over the Vessel, although
Defendants contend turnover occurred “[s]everal hours” before Plaintiff slipped and fell.62
It is possible, as Defendants note in their motion, that no ice was present on the walking
surface of Hold 3 when the Vessel was turned over.63 However, the parties do not dispute
that ice was present on the walking surface of Hold 3 by the time Plaintiff entered the hold
and, approximately 15 minutes later, slipped and fell.64 In light of this uncertainty and the
Court’s mandate to view the facts in the light most favorable to Plaintiff, the Court will
58 	Thomas, 42 F.2d at 1269; see also Scheuring, 476 F.3d at 791 (first citing Thomas, 42
F.3d at 1269; and then citing Martinez, 903 F.2d at 609) (“[T]he question [of] whether a defendant
acted reasonably is ordinarily a question for the trier of fact.”).
59 Martinez, 903 F.2d at 609 (citations omitted).
60 Docket 4 at 4 ¶ 22.
61 See generally Docket 4; Docket 35.
62 Docket 34 at 12. 	It appears from Captain Chong’s deposition testimony that the
crewmembers turned over the Vessel at or before approximately 11:15 p.m. on April 29 since that
is when “the loading began.” Docket 34-2 at 57:5–7.
63 Docket 34 at 13.
64 See Docket 34 at 3 (“Defendants do not dispute that Plaintiff slipped on ice.”);
Docket 35 at 4 (recounting Plaintiff’s fall).
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infer for the purposes of this order that Hold 3’s walking surface was icy when the
crewmembers turned the Vessel over to PacSteve.65
Assuming Hold 3 was icy at the time of turnover and remained icy when
Plaintiff entered the hold at around 3:00 a.m. on April 30, the Court considers whether
Defendants breached the turnover duty of safe condition. The question, as set forth above,
is whether Defendants exercised “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.”66 In a case such as this, where the issue is whether an expert and
experienced stevedore working in Dutch Harbor would be able to safely work on an icy
walking surface, the trier of fact may determine the applicable standard of care with the
assistance of testimony from “an expert and experienced stevedore.”67
Defendants provided such assistance in the form of a declaration from
PacSteve President Andrew Murphy, who employed Plaintiff.68 	Murphy establishes
himself as an expert stevedore from his involvement in PacSteve’s operations and business
dealings since 2005, where he gained extensive experience as a longshore worker who
65 Because the Court construes this fact in Plaintiff’s favor and Defendants do not contest
it, this factual issue is not a genuine dispute of a material fact for the purposes of summary
judgment under Rule 56.
66 Scindia, 451 U.S. at 167.
67 Cf. Thomas, 42 F.3d at 1269–70 (reversing district court’s exclusion of expert testimony
regarding the hazardousness of an unguarded hatch opening from the perspective of an experienced
longshore worker); Ingersoll v. Newport Petroleum, Inc., No. A03-65 CV (JWS), 2004 WL
3363407, at *2 (D. Alaska Sept. 30, 2004) (discrediting expert as unqualified to testify as to
dangerousness of an icy deck).
68 Docket 34-1.
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stowed cargo of frozen seafood in reefer vessel cargo holds in Dutch Harbor “many
times.”69 	Murphy’s declaration details at length the regularity with which PacSteve
longshore workers in Dutch Harbor “routinely” face icy and slippery conditions.70
Although the declaration, like much of Defendants’ recitation of the facts of this case,
speaks at a high level of generality, it establishes the circumstances in which an expert and
experienced longshore worker in Dutch Harbor typically is able to work safely. 	Murphy
states that longshore workers “are experienced in [icy] conditions and trained to work
safely around them and, if it is not possible to work around these conditions, to ensure that
the ice is safely cleared before continuing their work.”71 	He also describes the methods
longshore workers typically employ to mitigate the impact of, or remove to the fullest
extent possible, icy conditions that present unavoidable hazards.72 These practices include
reporting slippery conditions to the gang boss; wearing proper equipment, such as boots
with non-skid soles; using trolleys to transport cargo; and using tools provided by the
crewmembers to break and clear the ice.73 	Murphy acknowledges that a vessel’s
crewmembers may, at times, assist with ice removal, “[b]ut the responsibility for removing
ice that has formed on a cargo hold deck lies with the gang boss, not with the ship’s crew.”74
The Court finds that Murphy is “an expert and experienced stevedore”
qualified to testify as to the reasonableness of the conditions in Hold 3 during the times
69 Id. at 2 ¶¶ 4–5.
70 Id. at 5 ¶ 16.
71 Id.
72 Id. at 6–8 ¶¶ 19, 21, 23, 25.
73 Id.
74 Id. at 7 ¶ 21.
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relevant to this case. His testimony establishes a strong presumption of the standard care
a stevedore can expect from a reefer vessel’s crewmembers during cold-weather conditions
in Dutch Harbor, which stands in stark contrast to the standard of care Plaintiff alleges
exists. In fact, Plaintiff offers no expert declaration or testimony establishing the standard
of care expected by a reefer vessel operating in Dutch Harbor, nor does Plaintiff attempt to
cast doubt on Murphy’s declaration and its conclusions.75 Instead, the crux of Plaintiff’s
argument for why Defendants breached the turnover duty is that they “made an affirmative
undertaking to remove the ice on the floor of the hold in question,” an obligation Plaintiff
claims they failed to satisfy since the crewmembers were unable to remedy the icy
conditions leading to his slip and fall.76
Plaintiff cites two cases77 to support his “affirmative undertaking” argument:
Bunn v. Oldendorff Carriers GmbH,78 and Lieggi v. Maritime Co. of the Philippines.79
Both cases fairly support the proposition that a vessel may be liable when its crewmembers
act negligently in an affirmative undertaking intended to remove a hazardous condition.
As the Second Circuit explained in Lieggi:
[B]y 	making 	this 	affirmative 	undertaking, 	the 	owner
eliminated any possible reasonable basis for relying on the
stevedore 	to 	correct 	the 	hazardous 	condition. 	Indeed,
predictably, 	the 	shipowner's 	undertaking 	to 	correct 	the
condition lulled the stevedore into inaction: the hatch boss
testified that although he might normally have taken steps to
correct the condition, he did not do so “because the mate said
75 See generally Docket 35.
76 Docket 35 at 10.
77 Docket 35 at 9–10.
78 723 F.2d 454 (4th Cir. 2013).
79 667 F.2d 324 (2d Cir. 1981).
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he was going to come and have that wiring removed.” In the
circumstances of the present case, the question of shipowner
negligence could not properly have been taken from the jury.80
It appears that the Ninth Circuit would be inclined to apply a similar rule.
Although not involving an affirmative obligation or promise made to a stevedore at the
time immediately preceding a vessel’s turnover, Bueno v. United States,81 involved a
somewhat analogous situation. There, the plaintiff, a contractor, alleged that a shipowner
“voluntarily undertook to check the safety of the vessel on a regular basis, making
inspections from time to time” during a sandblasting operation but failed to correct the
improper placement of a floodlight that caused a fire resulting in the plaintiff’s injuries.82
The court ruled that the shipowner’s affirmative undertaking of regular inspections should
have alerted it to the potential fire hazard, and so a genuine issue of material fact existed
as to whether its failure to notice the danger and correct it constituted negligence for which
the shipowner was liable to the injured contractor.83
Even more applicable to the facts at hand is Ollestad v. Greenville Steamship
Corp.,84 where a ship’s crewmembers uncovered the ship’s hatches and stacked the hatch
covers on the weather deck—“a job normally performed by longshoremen”—immediately
prior to turnover.85 In doing so, the crewmembers left a boomrest (a large metal structure
80 667 F.2d at 329; see also Bunn, 723 F.3d at 462 (quoting Howlett, 512 U.S. at 97–98)
(“Holding a shipowner liable for promising, but failing, to remedy a dangerous condition comports
with ‘accepted principles of tort law,’ which inform a shipowner’s duties under the Act.”).
81 687 F.2d 318 (9th Cir. 1982).
82 Bueno, 687 F.2d at 320.
83 Id. at 320–21.
84 738 F.2d 1049, 1050 (9th Cir. 1984).
85 738 F.2d at 1050.
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that supports the ship’s boom) lying on the deck such that anyone crossing the deck had to
climb over or slide underneath the hatchcovers or boomrest.86 	Snow and ice later fell,
making the deck slippery.87 	When the plaintiff, a longshore worker, attempted to climb
the boomrest during his shift, he slipped and fell, injuring his leg.88 Citing Bueno, the court
determined that the ship’s crewmembers “had the duty to exercise the same reasonable care
required of a stevedore to protect workers who would be continuing longshore operations
on board.”89
These cases support a rule that, when a vessel’s crewmembers affirmatively
undertake a duty typically reserved for the stevedore, they must exercise reasonable care.
In this case, the Vessel’s crewmembers affirmatively undertook, or at least shared in, the
longshore workers’ duty to remove ice from Hold 3’s walking surface. Under this Circuit’s
guidance, Murphy’s statement that the stevedore ultimately bears responsibility for
removing the ice cannot strip Defendants of their duty to act with due care under the
circumstances.90 In attempting to remove the ice, the Vessel therefore assumed the duty to
exercise “the same reasonable care required of a stevedore to protect workers who would
be continuing longshore operations on board.”91
86 Id.
87 Id.
88 Id.
89 Id. at 1052 (citing Bueno, 687 F.2d at 320).
90 Docket 34-1 at 7, ¶ 22. Murphy’s declaration states: “The gang boss can also ask the
ship’s crew to assist in removing the ice. But the responsibility for removing ice that has formed
on a cargo hold deck lies with the gang boss, not with the ship’s crew. If the ship’s crew does not
remove the ice when requested, the gang boss will arrange for longshore workers to do so.” Id.
91 Ollestad, 738 F.2d at 1052.
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Ordinarily, the question of whether the crewmembers acted negligently in
their efforts to remove the ice would be a question for the trier of fact to determine at trial,
rather than a court on a summary judgment motion.92 The Court’s inquiry cannot end there,
however, because the turnover duty has a temporal limitation. 	The duty “relates to the
condition of the ship upon the commencement of stevedoring operations.”93 	There is no
evidence in the record indicating that the crewmembers were engaged in removing the ice
from Hold 3 prior to or at the time the longshore workers began conducting the stevedoring
operations “several hours before” Plaintiff’s injury occurred.94 Indeed, if Hold 3 had not
been opened until approximately 45 minutes before the longshore workers began their
work in that hold that night, as Plaintiff testified, it seems unlikely that the Vessel’s
crewmembers would have been in that hold when the stevedoring operations began.95
Instead, the Vessel’s crewmembers were working to remove the ice at around the same
time Plaintiff entered Hold 3 and while he was working therein, meaning that the
crewmembers’ affirmative undertaking of the ice removal took place, or at least remained
ongoing, after the commencement of the stevedoring operations. 	Defendants’ alleged
breach of this duty therefore cannot fall under the orbit of the turnover duty and is better
placed, if anywhere, under the active control duty.96
92 See Thomas, 42 F.2d at 1269.
93 Howlett, 512 U.S. at 98 (emphasis added) (citing Scindia, 451 U.S. at 167).
94 Docket 34 at 12.
95 Docket 34-2 at 8:16–17.
96 See Howlett, 512 U.S. at 98 (emphasis added) (citing Scindia, 451 U.S. at 167) (“The
second duty, applicable once stevedoring operations have begun, provides that a shipowner must
exercise reasonable care to prevent injuries to longshoremen in areas that remain under the ‘active
control of the vessel.’”).
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Neither 	case 	Plaintiff cites 	compels a 	different 	result. 	In 	Bunn, 	the
crewmembers’ promise to address the vessel’s slippery conditions took place “before the
loading operation started,” not afterwards.97 That case indisputably implicated the turnover
duty, whereas this one does not because there is no evidence that the crewmembers made
a promise or assumed an affirmative obligation before turnover. In Lieggi, it appears that
the promise to remove the equipment causing the plaintiff’s injuries might have been made
after the stevedoring operations began, even if the hazardous condition and alleged
negligence arose beforehand.98 In any event, the Lieggi court appears to have applied an
early conception of the active control duty, as the court does not mention the turnover duty
once.99 	To the extent Plaintiff offers Lieggi as a factual comparison, it follows that this
case similarly would not turn on an interpretation of the turnover duty.
Because Defendants’ actions took place after the crewmembers turned over
the Vessel and Plaintiff has not offered any evidence to refute Murphy’s statements
concerning an expert and experienced stevedore’s ability to work on icy surfaces on a reefer
vessel in Dutch Harbor, Plaintiff’s claims alleging a breach of the turnover duty of safe
97 Bunn, 723 F.3d at 457.
98 See Lieggi, 667 F.2d at 325–57 (noting the vessel’s crewmembers “periodically”
applied grease to the equipment, which had been left out “earlier in the day by a different gang of
longshoremen”).
99 See id. at 327 (“[The Supreme Court] left unclear exactly what duty the shipowner owes
the longshoremen once cargo operations, over which the stevedore generally has primary control,
have begun.”). Lieggi was decided only several months after Scindia and 13 years before Howlett,
at a time when the courts had not yet explored fully the contours of the three primary duties vessels
owe longshore workers. See id. (citing Scindia, 451 U.S. 156) (“The Supreme Court has spoken
definitively only as to a segment of the vessel owner’s liability under [Section 905(B)].”).
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condition must fail.100 	Plaintiff’s reliance on Ingersoll does not change this outcome.101
In Ingersoll, the plaintiff moved for summary judgment against a shipowner based on
deposition testimony positing that the shipowner breached the turnover duty of safe
condition by failing to maintain the ship’s deck in an ice-free condition.102 Judge Sedwick
rejected the deposition testimony because he found the proffered expert to be unqualified
and his testimony unclear.103 As a result, the plaintiff failed to meet her burden of showing
that no genuine dispute of a material fact existed.104
Here, by contrast, Defendants provided clear testimony from a qualified
expert directly addressing an expert stevedore’s ability to navigate icy conditions on a
reefer vessel in Dutch Harbor. Plaintiff offered no expert testimony to dispute Murphy’s
declaration. The excerpts Plaintiff cites of deposition testimony from Captain Chong and
100 See, e.g., Docket 34-1 at 5, ¶ 16 (“Pacific Stevedore longshore workers are experienced
in [icy] conditions and trained to work safely around them and, if it is not possible to work around
these conditions, to ensure that the ice is safely cleared before continuing their work.”). 	In his
declaration, Murphy speaks at a high level and does not directly address the specific circumstances
present on April 29 and April 30 leading to Plaintiff’s injury. Although his declaration would have
provided stronger support for Defendants’ motion if it presented a fact-specific analysis to support
Murphy’s conclusions, the working conditions Murphy characterizes as reasonable for longshore
workers in Dutch Harbor match the conditions described in the factual portions of the record, such
as Plaintiff’s deposition. Compare id. at 3–5 ¶¶ 9–10, 13–17 (describing the regularity with which
PacSteve longshore workers in Dutch Harbor work around icy and slippery conditions in cargo
holds after rain and snowfall), with Docket 34-2 at 37:9–15 (Gumera’s description of icy
conditions that PacSteve workers encounter in frozen holds), and Docket 35 at 30 (Plaintiff’s
description of the icy conditions in Hold 3). At no point in Plaintiff’s briefing does he dispute any
portion of Murphy’s declaration or offer convincing evidence to refute its content. Cf. Thomas,
42 F.3d at 1269–70 (reversing district court’s exclusion of expert testimony explaining vessels’
customs for covering deck openings or manholes).
101 See Docket 35 at 11 (citing Ingersoll to support argument that “the Court should not
jump to any conclusions as to the reasonableness of the hazard on the floor of the hold at issue,
but, rather, should deny summary judgment to properly allow the trier of fact to resolve the issue”).
102 Ingersoll, 2004 WL 3363407, at *2.
103 Id.
104 Id.
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Chief Mate Ryu Young Woo appear to lack context, are cherry picked, and do not
contradict Murphy’s statements.105 For example, Captain Chong and Woo merely confirm
that 	the 	Vessel’s 	crewmembers 	attempted 	to 	remove 	the 	ice 	from 	Hold 	3, 	and
Captain Chong provided his understanding of the hypothetical process the crewmembers
and stevedore take to determine whether to stop work when conditions are unsafe.106 These
statements merely recount factual circumstances or speak generally about the manner in
which decisions might be made on an icy vessel. They do not establish the general duty of
care that an expert and experienced stevedore would expect a vessel to fulfill when it hires
a stevedoring company to load or unload cargo in Dutch Harbor. 	The Court finds that
Plaintiff has failed to meet his burden as the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”107
Similarly, Plaintiff’s claim alleging a breach of the turnover duty to warn
must fail. This duty “attaches only to latent hazards, defined in this context as hazards that
would be neither obvious to nor anticipated by a competent stevedore in the ordinary course
of cargo operations.”108 	Plaintiff acknowledged that the icy conditions were obvious to
105 See generally Docket 35 at 15–23.
106 Docket 35 at 16, 18–20 (Chong Dep.); Docket 35 at 22–23 (Woo Dep.).
107 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citing Fed. R. Civ. P. 56(e));
see also Marable v. United States, No. 14cv1206-WQH-KSC, 2017 WL 6541021, at *6–7 (S.D.
Cal. Dec. 21, 2017) (finding plaintiffs failed to refute testimony from shipowner defendant’s expert
on whether a ladder’s outboard handrail presented an unreasonably dangerous condition to an
experienced ship repair person).
108 Howlett, 512 U.S. at 99; see also Scindia, 451 U.S. at 167 (citation omitted) (“This duty
extends . . . to warning the stevedore of any hazards on the ship . . . that 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.”); Ludwig v. Pan Ocean Shipping Co., 941 F.2d 849, 851 (9th Cir. 1991)
(ruling that shipowner had no duty to warn longshore workers of the obvious hazards posed by a
coiled cable and snatch blocks located at the bottom of a ladder).
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him and that he was aware of them when he entered Hold 3 after receiving a warning from
his gang boss.109 Therefore, Defendants had no duty to warn Plaintiff of the obvious slip
hazard posed by the ice or that Hold 3’s walking surface would continue to be slippery
throughout his shift.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s
claims that they breached the turnover duty of safe condition and the turnover duty to warn.
C. 	The Active Control Duty
The active control duty establishes a limited standard of care that a vessel
owes to stevedores once stevedoring operations begin.110 Under the active control duty, a
vessel “must exercise reasonable care to prevent injuries to longshoremen in areas that
remain under the ‘active control of the vessel’” during the stevedoring operations.111 	A
vessel also may be liable if “it actively involves itself in the cargo operations and
negligently injures a longshoreman.”112
The 	parties’ 	main 	areas 	of 	disagreement 	are 	whether 	the 	Vessel’s
crewmembers had active control of Hold 3 or actively involved themselves in the cargo
operations in a way that negligently injured Plaintiff. 	If there is a genuine dispute of
material fact as to either of these issues, summary judgment would be improper.
Defendants contend that “[t]here is no evidence or even allegation that the vessel’s crew
109 See, e.g., Docket 34-2 at 8:2–5 (“[Gumera] told us – when we opened that hold, he told
us . . . ‘It’s a new hold. It’s going to be slippery. You need to watch this.’”).
110 Howlett, 512 U.S. at 98; Onorato v. China Shipping Container Lines Co., No. CV 08-
4574 CAS (PJWx), 2009 WL 10671029, at *11 (C.D. Cal. Oct. 1, 2009) (citing Howlett).
111 Howlett, 512 U.S. at 98.
112 Bjaranson, 873 F.2d at 1207 (quoting Scindia, 451 U.S. at 167).
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actively involved itself in PacSteve’s operations beyond ensuring that the cargo was stowed
according to the stowage plan.”113 They argue that the crewmembers’ efforts to break up
and remove the ice from the Hold 3’s walking surface did not constitute active control of
the hold or dictate the way in which the longshore workers could complete their work.114
In other words, the longshore workers were free to work as they saw fit.115 	Defendants
also maintain that Plaintiff has not offered any evidence that the crewmembers’ affirmative
actions taken after turnover negligently caused Plaintiff’s injuries.116 In response, Plaintiff
acknowledges 	that 	Defendants 	“may 	not 	have 	maintained 	control 	over 	the 	entire
operation,” but asserts the crewmembers actively controlled “the floor under the feet of the
longshoremen.”117 	Plaintiff also points to statements Captain Chong made during his
deposition purportedly demonstrating that the crewmembers retained authority to halt the
stevedoring 	operations 	if 	the 	ice 	presented 	unavoidable 	hazards 	to 	the 	longshore
workers.118
Turning to the record, it is unclear whether the crewmembers controlled the
stevedoring operations at the time of Plaintiff’s injury. Woo, the chief mate, testified that
it was the crewmembers’ “job to supervise the entire thing,” referring to the loading
operations.119 The crewmembers’ mere presence and supervision of the loading activities
to confirm compliance with the stowage plan is insufficient, without more, to constitute
113 Docket 34 at 27.
114 Id.
115 See id. (citing Rich v. U.S. Lines, Inc., 596 F.2d 541, 550 (3d Cir. 1979)).
116 Id.
117 Docket 35 at 13.
118 Id.
119 Docket 34-2 at 76:3–6.
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active control.120 	At the very least, though, the record supports an inference that the
Vessel’s crewmembers actively involved themselves in the longshore workers’ operations
by working alongside them in Hold 3 as the longshore workers unloaded the cargo at the
time Plaintiff was injured.121 	More importantly, the crewmembers broke up and swept
away the ice that inhibited the longshore workers’ ability to load the cargo safely.122 	As
the deposition testimony and Murphy’s declaration demonstrate, the crewmembers were
participating 	in 	a 	task 	typically 	reserved 	for, 	or 	at 	least 	which 	was 	the 	ultimate
responsibility of, the longshore workers.123 Defendants are correct that the record does not
unequivocally show that the crewmembers controlled the cargo operations, but they cannot
demonstrate that this issue is undisputed. 	When viewed in the light most favorable to
Plaintiff, the record before the Court supports an inference that, by breaking up the ice and
sweeping it to the side of the hold as the longshore workers worked, the crewmembers
exhibited at least concurrent control over the longshore workers’ walking surface and, by
120 See Haines v. Honolulu Shipyard, Inc., 125 F. Supp. 2d 1020, 1029 (D. Haw. 2000)
(finding that the presence of a crewmember aboard the vessel during loading operations did not
establish that the crewmembers had “active control” of the vessel).
121 See Docket 34-2 at 14–15 (noting that two crewmembers were in Hold 3 at the time of
the accident); Docket 35 at 22:9–12 (confirming that “the ship’s crew members were on continuous
de-icing tasks” in Hold 3); Scindia, 451 U.S. at 167 (“[T]he vessel may be liable if it actively
involves itself in the cargo operations and 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 . . . under the active control of the vessel during the stevedoring operation.”); Howlett, 512
U.S. at 98.
122 Docket 35 at 22.
123 Docket 34-1 at 7, ¶ 22 (Murphy Decl.); Docket 34-2 at 45:12–25 (Gumera Dep.).
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extension, the ongoing stevedoring operations.124 	Put differently, without addressing or
avoiding the ice, the longshore workers could not complete their jobs safely. By inserting
themselves into the ice removal efforts, the Vessel’s crewmembers exerted some control
over the longshore workers’ ability to work in and navigate Hold 3. 	Courts have found
that a vessel’s exercise of concurrent control over an area or operation along with longshore
workers is sufficient to trigger the active control duty.125
Furthermore, Defendants’ reliance on Rich is misplaced because Defendants
inaccurately recite the facts of that case. 	Defendants contend in their brief that, in Rich,
“there was evidence that [the] vessel crew voluntarily cleaned up some ice, but no evidence
that they retained control over the stevedore’s work.”126 	The pincitation Defendants
124 Gumera’s deposition demonstrates that the crewmembers retained some authority over
the ice removal efforts:
Q. 	Okay. 	In some prior depositions taken of the captain,
and I guess, the first mate or executive officer, they said that their
crew used some wooden mallets or hammers to break up ice to help
clear it off the deck. Do you recall seeing that when you worked on
the Suah?
A. Yes. That’s – that’s what they use to break – to clear the
ice, to break the ice.
Q. Okay. Is that done by the ship’s crew, or is that done by
the stevedores, breaking the ice?
A. That’s – that’s the ship crews. We always – if ice builds
up on the floor, we always – I always call the chief or whoever, the
crew in there, in the hatch to start breaking it.
Docket 34-2 at 37:16–38:5.
125 See Tucker v. Cascade Gen., Inc., No. 3:09-CV-1491-AC, 2014 WL 6085829, at *22
n.11 (D. Or. Nov. 13, 2014) (citations omitted) (“Even if the court were to find the [shipowner]
and [maintenance and repair contractor] shared control over the hatch cover, courts in those
instances consistently hold the Scindia active-control duty is implicated.”); Moore v. M.P. Howlett,
Inc., 704 F.2d 39, 40–41 (2d Cir. 1983) (upholding jury verdict in favor of longshore worker who
slipped on an obviously greasy, icy deck while the stevedore and vessel’s crewmembers jointly
controlled and operated a barge-crane).
126 Docket 34 at 27.
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provide 	contains 	what 	appears 	to 	be the vessel 	captain’s 	general 	synopsis 	of 	the
crewmembers’ responsibility for alleviating slippery conditions, not a recitation of what
the crewmembers did in that particular case.127 The facts of that case instead indicate that
the stevedore asked the vessel’s crewmembers to provide rock salt or another nonskid
material to eliminate slippery conditions on top of shipping containers, but the vessel’s
crewmembers did not provide any such materials.128 There is no indication from the court’s
opinion that the crewmembers promised to take, or actually took, any steps to address the
ice.129 	Those facts contrast with those of this case, where the Vessel’s crewmembers
127 See Rich, 596 F.2d at 549–50. The relevant paragraph of the opinion reads:
Captain Kenneth Mistry's testimony was more detailed. He
stated that the chief officer of a ship is in charge of cargo operations
and in that capacity instructs the longshoremen which containers are
to be loaded, removed or shifted around. 	In addition, the officer
must keep the ship in a condition to receive and discharge cargo and
is in charge of general ship maintenance. 	As part of these duties,
the chief officer, or those to whom his powers are delegated, must
always 	be 	concerned 	that 	the 	vessel 	is 	safe 	for 	both 	the
longshoremen and crew members. Captain Mistry further testified
that he had followed procedures whereby slippery conditions either
on the deck or on top of the cargo left exposed to the weather were
remedied by the ship's crew and that in his opinion, the dangerous
conditions of the containers should have been alleviated by the ship's
personnel since they alone were aware of the weather conditions
encountered during the voyage to Philadelphia and since they were
aware that the longshoremen would be walking on top of the
containers.
Id. (emphasis added). The emphasized text above ostensibly is that to which Defendants refer, but
when read in the broader context of that paragraph and the opinion’s fact section, it becomes clear
that the facts adopted by the court revealed that the crewmembers did not affirmatively try to
remove the ice on top of the cargo containers that resulted in the plaintiff’s injury. Id. at 543–44.
128 See id. at 543–44 (“[The stevedore superintendent] stated that the stevedore had a spare
supply of nonskid material in a gear locker about 800 feet from the ship. There is no evidence that
this was used to remedy the slippery condition of the containers.”).
129 Id.
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affirmatively worked alongside the longshore workers in Hold 3 with every intention of
addressing the ice under their feet.
Defendants nevertheless argue in their reply that no “reasonable juror could
conclude that the vessel crew actively controlled the stevedore’s operational area.”130
However, “a finding of active control is supported by . . . testimony indicating that the crew
generally remained on the affected portion of the deck during the stevedore’s unloading
operations and that the crew was responsible for maintaining the deck . . . .”131 	It is
undisputed that the Vessel’s crewmembers remained in Hold 3 with the longshore workers
while they worked and that the crewmembers took it upon themselves to remove the ice on
the deck, even if they were asked to do so. Although the PacSteve longshore workers or
their employer may have—by custom, statute, regulation, or otherwise—responsibility for
ensuring that they safely navigated the slippery conditions, that responsibility does not
relieve the crewmembers from their responsibility to perform the task they affirmatively
undertook without negligence.132 	This affirmative undertaking, coupled with the chief
130 Docket 36 at 10.
131 Davis v. Portline Transportes Mar. Internacional, 16 F.3d 532, 541 (3d Cir. 1994).
132 See supra Part III.B. (interpreting Bueno v. United States, 687 F.2d 318 (9th Cir. 1982),
and Ollestad v. Greenville S.S. Corp., 738 F.2d 1049, 1050 (9th Cir. 1984), as imposing duties on
a vessel when its crewmembers affirmatively undertake actions typically reserved for longshore
workers). 	As for Defendants’ argument that the LHWCA and its implementing regulations
expressly impose a duty to remove ice on the stevedore, rather than the vessel owner, courts have
made clear that those duties are not exclusive. This Circuit directly addressed this argument in
Subingsubing v. Reardon Smith Line, Ltd., 682 F.2d 779, 780 (9th Cir. 1982) (citations omitted):
Although the Safety and Health Regulations [implementing
the LHWCA] impose a duty on stevedores, there is no reason to
suppose that it is an exclusive duty. Indeed, the Safety and Health
Regulations provide that they do not relieve “owners, operators,
agents or masters of vessels from responsibilities or duties now
placed upon them by law, regulation or custom.” 	A negligent
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mate’s testimony that the crewmembers were supervising the loading operation, is
sufficient to create a genuine issue of material fact as to whether the Vessel actively
controlled or was actively involved in the stevedoring operations.133 Murphy’s generalized
statements to the contrary—such as his assertion that “the crew do not actively participate
in loading the cargo and they do not supervise or direct Pacific Stevedoring workers
regarding their work loading the cargo”—do not demonstrate the absence of a genuine
dispute when the record indicates otherwise.134 	In essence, Defendants rely on a
declaration that fails to address the specific circumstances leading to Plaintiff’s injury, or
refute Woo’s statement about the crewmembers’ supervision of the loading operations.
This cannot be a basis upon which to grant summary judgment.
Murphy also cannot vitiate the Vessel’s duty to adequately treat the ice once
the crewmembers took it upon themselves to assist. Even if his generalizations accurately
reflected the factual circumstances, “proof of adherence to an industry practice or custom
is not dispositive on the issue of negligence.”135 	The Court finds that a genuine dispute
shipowner's liability may be reduced, but that liability is not
eliminated, 	by 	the 	negligence 	of 	the 	stevedore 	and 	the
longshoreworker.
The safety and health regulations cited in Subingsubing have been amended since that decision,
but courts continue to reaffirm that the regulatory duties imposed on stevedores are not exclusive
of those imposed on vessel owners. See Martinez v. Korea Shipping Corp., 903 F.2d 606, 611 (9th
Cir. 1990) (footnote omitted) (citing Subingsubing, 682 F.2d at 780) (“Although OSHA standards
only impose a duty on stevedores, this court has held that it is not an exclusive duty.”); Abruska v.
Northland Vessel Leasing Co., 258 F. App’x 158, 161 n.3 (9th Cir. 2007) (citing Martinez, 903
F.2d at 611); Robie v. S. Marine Constr. Co., No. 10-7-DLB-CJS, 2013 WL 188577, at *10 n.5
(E.D. Ky. Jan. 17, 2013) (citing Subingsubing, 682 F.2d at 780).
133 See Docket 34-2 at 76:3–10 (confirming the crew’s supervision of the loading
operations).
134 Docket 34-1 at 8 ¶ 24.
135 Martinez, 903 F.2d at 610 (citations omitted).
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exists as to whether the Vessel’s crewmembers actively controlled Hold 3 or actively
involved themselves in the stevedoring operations.136
Defendants alternatively argue that, even if the crewmembers were actively
involved in the stevedoring operations, there is no evidence that they acted negligently.137
It may be the case that the crewmembers did not negligently break and sweep the ice or
that their actions did not cause Plaintiff’s injuries. 	However, Defendants fail to establish
the lack of a dispute of a material fact on the issue, a burden they bear as the parties moving
for summary judgment.138 	Plaintiff, meanwhile, presented testimony supporting an
inference that the crewmembers may have acted negligently in removing the ice:
Q 	What were they doing with those mallets, the two
crew members?
A A little bit of tippy-tap here and there. There wasn’t
– a lot of crew complained about, “Hey, this floor is slippery.
It needs to be done,” and they were basically going fore and aft
as we changed positions on the dolly. 	If we pushed the dolly
aft, they would go to the fore end of the – the – the hold itself
and kind of beat at the ice. 	Then we would drop a load, we
136 Defendants’ citation in their reply to the unpublished Abston v. Jungerhaus Mar. Servs.
GmbH., 664 Fed. App’x 378, 381 (5th Cir. 2016), and other cases does not change this outcome.
Docket 36 at 10–11. Abston is neither binding on this court nor dispositive given the factual issue
of “whether the vessel owner control[led] the methods and operative details of the stevedore’s
work.” Abston, 664 Fed. App’x at 381. As explained above, Plaintiff has pointed to evidence in
the record that the Vessel’s crewmembers supervised the loading operations and may have exerted
control over details of the longshore worker’s work since the crewmembers worked alongside the
longshore workers to address the very conditions that dictated how the workers could perform their
job safely on the night in question. As Defendants point out, certain portions of the record suggest
that the crewmembers “stayed out of the way” of the longshore workers and did not control their
work, but this issue is far from settled based on the record currently before the Court. Docket 36
at 11 (citing Docket 34-2 at 18:4–9). That the crewmembers were “usually” 20 feet away from
the longshore workers does not mean they did not share control of the walking surface on which
the longshore workers worked, especially since both groups appeared to have been actively
moving around throughout the loading operation. Docket 34-2 at 18:1–9.
137 Docket 34 at 28; Docket 36 at 11.
138 Fed. R. Civ. P. 56(a).
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would go, say, forward of where we were. They would go to
the opposite end and kind of chip and beat at the ice.139
Gumera’s testimony also offers some indication that the crewmembers may
not have addressed the ice in a satisfactory manner:
Q. 	Okay. 	So with respect to the patch of ice that
Mr. Nystrom slipped on, were you aware that that patch of ice
was there before he slipped?
A. 	No. 	We don’t – we don’t – I don’t see that. 	I – I
didn’t realize that.140
These statements, and others like them in the record, reflect a genuine dispute
as to whether Defendants negligently failed to remove the ice that caused Plaintiff’s
injuries. 	Notwithstanding Gumera’s admission that he did not ask the crewmembers to
remove the particular spot of ice on which Plaintiff slipped, the Court must view the facts
in the light most favorable to Plaintiff.141 Such a view suggests that the longshore workers
did not ask the crewmembers to remove that particular patch of ice because they assumed
the crewmembers had taken care of it or were lulled into a false sense of security based on
what the crewmembers were actively doing around them. 	The facts might bear out a
different version of the precise circumstances leading to Plaintiff’s injury, perhaps showing
that Plaintiff did not or could not reasonably rely on the crewmembers to remove the ice in
his immediate workspace or that it was unreasonably risky for him to carry the cargo
himself without use of a trolley, as Defendants allege.142 But it is not proper for the Court
139 Docket 35 at 31:25–32:10.
140 Docket 34-2 at 51:20–24.
141 Docket 34-2 at 51:25–52:4.
142 Docket 34 at 27.
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to construe a version of the facts favoring Defendants at the summary judgment stage when
the parties have presented an incomplete record and a jury could find that Plaintiff had no
reason to anticipate untreated ice where he slipped, even if the ice had been obvious to him
when he entered the hold.143 	Likewise, the Court cannot at this juncture evaluate
Defendants’ suggestion that Plaintiff’s own negligence caused his injuries.144 	The
principles of comparative negligence apply to maritime law, so if there is any possibility
that Defendants were negligent, as there is here, the Court cannot conclude as a matter of
law that Defendants are entitled to summary judgment.145
Accordingly, Defendants are not entitled to summary judgment on Plaintiff’s
claim that Defendants breached the active control duty.
IV. 	CONCLUSION
In light of the above, Defendants’ 	Motion for Summary Judgment at
Docket 34 is GRANTED IN PART and DENIED IN PART. Plaintiff’s claims alleging
143 See Bunn, 723 F.2d at 464 (“[A]ccordingly, a jury could find that neither CNX (the
stevedore) nor Bunn (the longshoreman) had reason to anticipate untreated ice aboard the ship,
even though one might otherwise have expected such a hazard following a winter storm.”);
Scheuring, 476 F.3d at 791 (citations omitted) (“[T]he question [of] whether a defendant acted
reasonably is ordinarily a question for the trier of fact.”). 	The Court also notes that the record
contradicts Defendants’ intimation that the icy conditions may have been “hazards about which
the vessel has no actual or constructive knowledge.” Docket 34 at 28 (citations omitted). Both
Captain Chong and Woo acknowledged that Hold 3 was icy on the night in question, so Defendants
were well aware of the obvious hazard. Docket 34-2 at 59:6–17; Docket 35 at 22:9–12.
144 See Docket 34 at 27 (“[I]t is unclear why Plaintiff decided to grab a 50 pound box and
walk across a surface he claims he knew was icy.”).
145 See Davis, 16 F.3d at 540 (first citing Socony–Vacuum Oil Co. v. Smith, 305 U.S. 424,
431 (1939); then citing Sosebee v. Rath, 893 F.2d 54, 55 n.2 (3d Cir. 1990); and then citing The
Max Morris v. Curry, 137 U.S. 1, 14–15 (1890)) (reversing district court’s grant of summary
judgment because a jury could find that the shipowner defendant was at least partially negligent in
creating an icy spot on the deck of a ship).
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a breach of the turnover duty are dismissed with prejudice. 	Plaintiff’s claims alleging a
breach of the active control duty withstand summary judgment.
IT IS SO ORDERED this 15th day of February, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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