(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 6, 1995 -- March March 25, 1996
PER CURIAM
Federico Icabalzeta (decedent) was killed when he fell from a metal ledge while attempting to clean
the fuel tank on a ship owned by Sea-Land Services, Inc. (Sea-Land). At the time of the accident, decedent
was employed by Coastwide Marine & Ship Services, Inc. (Coastwide), a company with which Sea-Land had
contracted to clean the vessel's large fuel tank. When decedent arrived at the top of the fuel tank on the day
of the accident, he stepped onto a narrow, horse-shoe-shaped strip of metal along the inside perimeter of the
tank. There were no guardrails. Decedent began to walk along this poorly illuminated metal ledge towards
the location where the other Coastwide workers were cleaning the tank. Because decedent was unable to see
that the ledge was horseshoe shaped, he stepped off the side, falling to his death on the metal deck below.
A representative of decedent, Alejandra Icabalzeta, filed a wrongful death action pursuant to section 905(b)
of the Longshore and Harbor Workers' Compensation Act (section 905(b)). Icabalzeta contends that Sea-Land breached its duty to provide safe working conditions for Coastwide's employees by failing to provide
adequate lighting and by failing to install railings along the ledge off of which decedent fell.
The trial court granted Sea-Land's motion for summary judgment dismissing the complaint on the
ground that even if there was an unreasonably dangerous condition in the area of the ship where the accident
occurred, this condition was the responsibility of Coastwide, not Sea-Land.
On appeal, the Appellate Division affirmed in part, concluding that Icabalzeta failed to present any
evidence from which a jury could find that Sea-Land failed to discharge whatever duty it may have had to
provide lighting for Coastwide to use in cleaning the fuel tank. In reversing summary judgment as to
Icabalzeta's claim that Sea-Land was negligent in turning over the ship to Coastwide without guardrails in the
area where decedent was working, the Appellate Division found that Icabalzeta presented sufficient facts
from which a jury could find that Sea-Land breached its duty to provide safe working conditions by turning
over a ship that it knew or should have known would pose an unreasonable danger to Coastwide's
employees.
The Appellate Division noted that cases interpreting section 905(b) provide that a shipowner has the
duty to exercise ordinary care under the circumstances to have the ship and its equipment in such condition
that an expert and experienced stevedore, such as Coastwide, would be able by the exercise of reasonable
care to carry on its cargo operations with reasonable safety to persons and property. This duty of care is
known as the turnover duty of safety. Absent any kind of contractual duty, law, or custom to the contrary,
however, the shipowner has no general duty by way of supervision or inspection to exercise reasonable care
to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to
the stevedore. Thus, according to the Appellate Division, the U.S. Supreme Court drew a sharp distinction
between the shipowner's responsibility for dangerous conditions that are present when a ship is turned over
to an outside contractor and dangerous conditions that develop during the course of the contractor's
operations.
In reaching its conclusions, the Appellate Division found that the undisputed evidence indicates that the failure of Coastwide's employees to use the lights provided them by Sea-Land to adequately light the area where decedent fell created a transient dangerous condition that arose after the ship was turned over to Coastwide. Without any evidence that Sea-Land knew of this condition, there was no basis for the
imposition of liability on Sea-Land for the alleged inadequate lighting in the area of the accident. In
contrast, the Appellate Division found that lack of guardrails was not a transient condition that developed
during Coastwide's cleaning operation but rather was a fixed condition that existed when the ship was turned
over to Coastwide. Thus, under 905(b), Sea-Land may be liable for its negligence in turning over the ship to
an outside contractor without providing a reasonably safe working environment for the contractor's
employees.
The Supreme Court granted certification.
HELD: The Court affirms the judgment of the Appellate Division substantially for the reasons stated in its
reported opinion. There is a triable issue of fact of whether the claimed defect (the absence of
guardrails along the ledge from which decedent fell) was obvious and whether Sea-Land violated its
turnover duty of safety to Coastwide.
1. On remand, the trial court should instruct the jury consistent with the Supreme Court's most recent
pronouncement in Howlett v. Birkdale Shipping Co., S.A. on the general nature of a vessel owner's turnover
duty of safety and duty to warn of latent defects. One component of the shipowner's turnover duty is to
warn the stevedore of any hazards that are known to the vessel or should be known to it in the exercise of
reasonable care and would likely be encountered by the stevedore in the course of cargo operations but
which are not known by the stevedore and are not obvious or could not be anticipated by the stevedore.
(pp. 2-3)
2. In respect of the hazards in the vessel itself, Howlett left undisturbed the duty of a shipowner to exercise
ordinary care to turn over a ship on which experienced workers may conduct their operations in reasonable
safety. As a general rule, when an experienced stevedore could have avoided a hazard, the shipowner will
not be liable for injuries to the longshoreman. If, however, the shipowner reasonably should anticipate that
workers may confront that hazard in the course of their duties, and its characteristics are such that neither
the workers nor the stevedore could reasonably expect to remedy the condition, the shipowner may be
negligent in not eliminating the hazard. (pp. 3-4)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-41/
42 September Term 1995
ALEJANDRA ICABALZETA, To Be
Appointed General Administratrix
of the Estate of FEDERICO
ICABALZETA and ALEJANDRA
ICABALZETA, as Administratrix
Ad Prosequendum of the Estate
of FEDERICO ICABALZETA and
REINA ISABEL LOAISAGA,
Plaintiffs-Respondents
and Cross-Appellants,
v.
SEA-LAND SERVICES, INC., a
corporation doing business
in the State of New Jersey,
Defendant-Appellant
and Cross-Respondent,
and
COASTWIDE MARINE & SHIP
SERVICES, INC. (For Discovery
Purposes Only), a corporation
doing business in the State of
New Jersey and JOHN DOE and
ABC CORP. (names being fictitious,
currently unidentified owners,
operators and maintainers of a
vessel and its appurtenances) and
the M/V COMMITMENT, her engines,
boilers and appurtenances,
Defendants.
Argued November 6, 1995 -- Decided March 25, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
276 N.J. Super. 509 (1994).
James W. Bartlett, III, a member of the
Maryland bar, argued the cause for appellant
and cross-respondent (Wilson, Elser,
Moskowitz, Edelman & Dicker, attorneys;
William J. Riina, of counsel; Mr. Bartlett
and Mr. Riina, on the brief).
Richard M. Winograd argued the cause for
respondents and cross-appellants (Ginarte,
O'Dwyer, Winograd & Laracuente, attorneys;
Mr. Winograd and Diego F. Navas, on the
brief).
PER CURIAM
We affirm the judgment of the Appellate Division
substantially for the reasons stated in its reported opinion,
276 N.J. Super. 509 (1994). We agree that the case presents a
triable issue of fact on whether the claimed defect in the vessel
was obvious and whether the vessel violated its turnover duty of
safety. At the remand trial the court shall instruct the jury
consistent with the Supreme Court's most recent pronouncement on
the general nature of a vessel owner's turnover duty of safety
and duty to warn of latent defects. Howlett v. Birkdale Shipping
Co., S.A., ___ U.S. ___,
114 S. Ct. 2057,
129 L. Ed.2d 78
(1994). A vessel's "turnover duty" is the duty
to exercise ordinary care under the
circumstances to turn over the ship and its
equipment and appliances in such condition
that an expert and experienced stevedoring
contractor, mindful of the dangers he should
expect to encounter, arising from the hazards
of the ship's service or otherwise, will be
able by the exercise of ordinary care to
carry on cargo operations with reasonable
safety to persons and property.
[Howlett v. Birkdale Shipping Co., ___ U.S.
___,
114 S. Ct. 2057, 2063,
129 L. Ed.2d 78,
87 (1994) (internal quotation omitted).]
One component of this turnover duty is the duty
to warn the stevedore of any hazards
. . . [which] are known to the vessel or
should be known to it in the exercise of
reasonable care, and would likely be
encountered by the stevedore in the course of
his cargo operations, are not known by the
stevedore, and would not be obvious to or
anticipated by him if reasonably competent in
the performance of his work.
We are aware that in Howlett the Supreme Court
determined that a vessel has no duty to inspect for or to warn of
latent hazards in the cargo stow that it would not otherwise gain
knowledge of through the exercise of due care. Id. at 2067, 129
L. Ed.
2d at 91-92. That rule was extended to obvious hazards in
the cargo stow when the Court vacated the Ninth Circuit's opinion
in Riggs v. Scindia Steam Navigation Co.,
8 F.3d 1442 (9th Cir.
1993), and remanded that case in light of Howlett. Scindia Steam
Navigation Co. v. Riggs, ___ U.S. ___,
114 S. Ct. 2701,
129 L.
Ed.2d 830 (1994). Thus Howlett provides a significant narrowing
of vessel liability.
However, the Supreme Court noted that, because of the
vessel's relative lack of opportunity to inspect or control the
cargo stow, "[f]or the purposes of delineating the scope of a
shipowner's turnover duty, [] the cargo stow is separate and
distinct from other aspects of the ship." Howlett, supra, 114 S.
Ct. at 2066, 129 L. Ed.
2d at 87. We are satisfied that, with
respect to hazards in the vessel itself, Howlett left undisturbed
the duty of a shipowner to exercise ordinary care to turn over a
ship on which experienced workers may conduct their operations in
reasonable safety. Id. at 2063, 129 L. Ed.
2d at 87.
As a general rule, when an experienced stevedore could have
avoided a hazard, the shipowner will not be liable for injuries
to the longshoreman. If, however, the shipowner reasonably
should anticipate that workers may confront that hazard in the
course of their duties, and its characteristics are such that
neither the workers nor the stevedore could reasonably be
expected to remedy or avoid it, the shipowner may be negligent in
not eliminating the hazard. Kirsch v. Plovidba,
971 F.2d 1026,
1031 (3d Cir. 1992) (holding that "shipowner may be negligent for
failing to eliminate an obvious hazard that it could have
eliminated, but only when it should have expected that an expert
stevedore could not or would not avoid the hazard"); see also
Thomas v. Newton Int'l Enters.,
42 F.3d 1266, 1269 (9th Cir.
1994) (observing that vessel must be free of obvious but
unreasonably dangerous hazards that would prevent expert and
experienced workers from carrying on operations in reasonable
safety).
Judgment affirmed.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.
NO. A-41/42 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
ALEJANDRA ICABALZETA, etc., et al.,
Plaintiffs-Respondents
and Cross-Appellants,
v.
SEA-LAND SERVICES, INC., etc.,
Defendant-Appellant
and Cross-Respondent,
and
COASTWIDE MARINE & SHIP
SERVICES, INC. (For Discovery
Purposes Only), etc., et al.,
Defendants.
DECIDED March 25, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY