Kenneth Perez v. Zim Israel Navigation Company, Ltd. Zim America Israeli Shipping Company, Inc.
Docket: 93-56626
Court: Court of Appeals for the Ninth Circuit; May 18, 1995; Federal Appellate Court
Ninth Circuit Rule 36-3 states that non-published dispositions should not be cited as precedents except in specific legal doctrines. Kenneth Perez, a longshore worker, appeals the district court's summary judgment favoring Zim Israel Navigation Company in a negligence claim under the Longshore and Harbor Workers' Compensation Act (LHWCA). Perez sustained injuries after tripping over lashing cables placed on the M/V CALIFORNIA’s walkway by longshore workers. He argued that Zim Israel violated its duty to intervene and its active control duty regarding the safety of the work area.
Zim Israel moved for summary judgment, asserting there were no genuine issues of material fact and that Perez failed to substantiate his claims. The district court agreed and granted summary judgment. On appeal, the court reviewed the decision de novo. Perez contended that the district court erred in finding no material facts in dispute; however, the court concluded that the disputes cited by Perez were not material to the issue of duty of care owed by Zim Israel.
Specifically, while Perez claimed a misrepresentation in an uncontested fact regarding the timing of the cable placement, the court found this fact irrelevant to the duty question. Additionally, Perez’s contention regarding the involvement of the ship's crew was deemed insufficient to create a factual dispute, as control of the cable placement was undisputedly held by longshore workers. The court affirmed the district court's decision, concluding Zim Israel did not owe Perez a duty of care based on the undisputed facts.
Zim Israel has withdrawn reliance on Uncontroverted Fact 10, which stated that crew members were prohibited from handling lashing cables while the vessel was in port, as it is not essential to supporting the summary judgment. The crew's permission to handle cables in port remains contested, but it does not bolster Perez's claims regarding Zim Israel's duty of care. Perez asserts that he has demonstrated Zim Israel's active control over the main deck walkway, thereby establishing a duty to address hazards for longshore workers, which he claims was breached by failing to remove cables from the walkway. However, the court disagrees, stating that a vessel owner typically does not have a general duty to remedy hazards arising during cargo operations, although an "active control" duty exists towards longshore workers.
Citing the Supreme Court's decision in Scindia Steam, the court explains that a vessel may be liable for negligence if it does not exercise due care to prevent harm from hazards in areas it actively controls during stevedoring. The court references previous cases, including Bjaranson, where it was established that merely being in an area does not constitute active control. In Perez's case, his evidence that the crew traversed the walkway is deemed insufficient to establish active control, which must be more than casual use. The ruling emphasizes that ownership and casual use of areas by crew members do not impose a duty of care; rather, there must be clear evidence of active control. The precedent from Bjaranson reinforces this point, indicating that longshore workers can exercise control over areas, undermining claims of the vessel owner’s active control.
Longshore workers placed wire lashing cables on the walkway, indicating that the walkway was under their active control during cargo operations, rather than Zim Israel's. Perez's argument for Zim Israel's duty of care based on the active control theory is unsupported by evidence, as he failed to demonstrate that Zim Israel was responsible for the cable placement or maintained concurrent control over the walkway. Previous case law cited by Perez, such as *Davis v. Partenreederei M.S. Normannia*, involved scenarios where the vessel's crew was actively involved in dangerous placements, which is not applicable here. The court referenced *Scindia Steam Navigation Co. v. De Los Santos*, establishing that vessel owners generally do not have a duty to supervise cargo operations conducted by stevedores, with limited exceptions that Perez did not meet. Consequently, Zim Israel had no duty to investigate or move the lashing cables, and the district court's summary judgment in favor of Zim Israel was affirmed. Perez conceded a lack of evidence for a duty to intervene, leading the court to focus solely on the active control duty issue. The district court's decision was reviewed de novo, confirming no genuine material facts were in dispute.
In Jesinger v. Nevada Fed. Credit Union, the Ninth Circuit addressed Perez's appeal regarding the district court's summary judgment. The court found that while some facts were disputed, none were material to the case. Specifically, Perez claimed that Zim Israel had a duty of care due to its active control over the main walkway, which Zim Israel acknowledged in their modified response. However, the district court's oversight in reflecting this amendment did not affect its conclusions, as it addressed the duty of care in its legal findings.
Perez contested Uncontroverted Fact 6, which stated the timing of the accident concerning the placement of lashing cables. The court determined that even if Perez's assertion about the timing were accepted, it did not impact the material facts regarding Zim Israel's duty of care. The controlling facts were undisputed: the identity of those who ordered and supervised the placement of cables, as well as who controlled the deck area.
Regarding Uncontroverted Fact 8, which asserted that the ship's crew was not involved in cargo operations, the court found no substantive conflict in Perez's arguments. The vessel crew's orders did not negate the longshore workers' control over the cable placement. Zim Israel also abandoned reliance on Uncontroverted Fact 10, which was deemed unnecessary for the summary judgment.
Finally, while Perez argued that Zim Israel had active control over the walkway and thus a duty to address hazards posed by the cables, the court reiterated that a vessel generally does not have a duty to investigate hazards arising during cargo operations. However, it recognized that a vessel could be liable for negligence if it fails to exercise due care towards longshore workers in areas under its active control during stevedoring operations, as outlined in previous case law.
To establish a vessel owner's duty of care under active control, a plaintiff must demonstrate more than mere ownership or casual use of the vessel's areas. In the case of Bjaranson, a longshore worker's injury near a cargo hatch was determined insufficient to prove the vessel's active control, as there was no evidence that the owner exercised control over the area of the accident. Similarly, in the current case, Perez failed to provide adequate evidence that Zim Israel maintained active control over the main deck walkway, offering only that the crew used it for passage. The distinction between active control and casual use is crucial; casual use alone does not impose a duty of care, as established by the Supreme Court's ruling in Scindia Steam.
Evidence presented in Bjaranson showed that longshore workers had control over the hatch, undermining any claim of active control by the vessel owner. In this case, the longshore workers placed wire lashing cables on the walkway, which suggests that they were exercising active control over the area rather than Zim Israel. Perez's reliance on Davis v. Partenreederei M.S. Normannia is misplaced, as that case involved specific evidence of the crew's control over a dangerous gangway. In contrast, Perez did not demonstrate that Zim Israel was responsible for the positioning of the lashing cables or that it maintained concurrent control over the walkway during cargo operations. Thus, there is insufficient evidence to support a duty of care under the active control theory.
No evidence was presented showing that the vessel's crew engaged in cleaning, repairs, or other operations on deck. Cases cited by Perez regarding gangways are not applicable here, as a deck walkway is not controlled by the vessel owner like a gangway. The court established in *Scindia Steam* that vessel owners generally do not have a duty to supervise or inspect areas related to stevedore operations for dangerous conditions, with limited exceptions. Perez failed to provide adequate evidence to invoke any exceptions. Consequently, Zim Israel did not have a duty of care to investigate or remove lashing cables on the deck, leading the district court to correctly grant summary judgment. The ruling is affirmed, with a note that this decision is not for public citation outside of specific guidelines. Additionally, Perez acknowledged the lack of evidence to support a duty to intervene, prompting a focus only on the active control duty.
