- [B]Case Name: [/B]Joseph Verga v. Rotterdam Express, et al.
[B]Date Decided: [/B]December 1, 2009
[B]Court: [/B]U.S.D.C. Eastern District of New York
[B]Judge: [/B]Judge Pollack
[B]Citation: [/B]2009 WL 4363444 (E.D.N.Y.)
[FONT=arial][B]Background:
[/B]Plaintiff, Joseph Verga, brought action against defendants alleging that he suffered injuries as a result of defendants’ negligent failure to inspect the vessel, known as Rotterdam Express, and provide Verga with a safe place to work. *Specifically, Verga brought this action under the Longshore Harbor Workers’ Compensation Act, LHWCA, against Rotterdam Express and Hapag-Lloyd for negligence of a vessel.[/FONT]
[FONT=arial]Verga was employed as a longshoreman by the New York Container Terminal working on the Rotterdam Express while it was docked in NY. The vessel owner and operator wads Hapag-Lloyd of the vessel.[/FONT]
[FONT=arial]Defendants alleged toward the end of Verga’s shift, he boarded the Rotterdam Express with the purpose of setting the hatch cover for containers to be put on. Verga testified that generally, when he is arranging container “shoes” on the hatch the ship’s crew is walking around the ship, although, he did not know exactly where on the ship the crew members were typically located during stevedoring operations.[/FONT]
[FONT=arial]While walking across the hatch cover to set up container “shoes” Verga allegedly slipped and fell suffering injuries to his right hand. Verga claimed he slipped on a brownish black spot which was grease. Verga testified he did not see nor had any knowledge of the grease before he fell. Verga fractured his right hand which did not heal properly resulting in severe ligament damage and a formation in his hand.[/FONT]
[FONT=arial]Defendants have moved for summary judgement.[/FONT]
[FONT=arial][B]Issue:
[/B]Did this Court grant Defendants’ motion for summary judgment against Verga’s LHWCA claims?[/FONT]
[FONT=arial][B]Held: [/B]
Verga claimed that Rotterdam Express and Hapag-Lloyd were liable under the LHWCA. Specifically, under 905(b) which provides recovery for injuries suffered as a result of vessel negligence. The vessel’s three limited duties are (1) turnover duty, (2) active control duty, and (3) duty to intervene.[/FONT]
[FONT=arial]Under the turnover duty, the vessel owner has a duty to turn the ship over to the stevedoring company in a condition as to allow the stevedore, to “carry on its cargo operations with reasonable safety”. The plaintiff must demonstrate that the defendant had [I]actual knowledge [/I]or should have known about the hazard and that the hazard would not be obvious to a competent stevedore.[/FONT]
[FONT=arial]This Court found there was no evidence to indicate that the vessel’s crew was aware of the oil slick prior to the turnover of the ship to the stevedore. Verga testified that he did not know where it had come from nor was there any equipment in the area of the vessel that could have leaked grease or oil onto the hatch cover. This Court also found that the hazard should have been obvious to the employees and could have reasonably been dealt with.[/FONT]
[FONT=arial]Second, the “active control” duty was not breached by the vessel owner defendants. The Court recognized that the vessel owner does not have a “continuing duty” to discover and correct hazardous conditions that develop during cargo operations. Because the vessel owner did not actively involve itself in the cargo operations, this Court found that it did not violate the “active control” duty.[/FONT]
[FONT=arial]Finally, as far as the duty to intervene claim was concerned, this Court found that the defendants had no knowledge of the grease spot. There was no knowledge that the stevedore’s employer was acting without reasonable care to protect its own employees from risk.[/FONT]
[FONT=arial]*Accordingly, this Court granted defendants’ motion for summary judgment.[/FONT]
[B][FONT=arial]Comment:
Under the LHWCA, the injured plaintiff does not have an action for “unseaworthiness” as is provided under the Jones Act. [/FONT][/B]
[B][FONT=arial]Under 905(b) however, an action may be brought against the vessel owner for vessel negligence.* The vessel owner has duties, (1) Turnover duty (2) Active Control duty (assigned only when it involves itself in the cargo operations) and (3) Duty to intervene. [/FONT][/B]
[B][FONT=arial]Steve Gordon [/FONT][/B]