FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN SCHEURING, 

No. 04-56844 Plaintiff-Appellant,

D.C. No.

v.  CV-03-06613-RZ

TRAYLOR BROTHERS, INC., OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Ralph Zarefsky, Magistrate Judge, Presiding

Argued and Submitted

November 16, 2006—Pasadena, California

Filed February 14, 2007

Before: Richard D. Cudahy,* Betty B. Fletcher, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Cudahy

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation. 

1847
COUNSEL

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, California, and David W. Robertson, Austin, Texas, for

the plaintiff-appellant. 

Mitchell S. Griffin and Richard C. Wootton, Cox, Wootton,

Griffin, Hansen & Poulos, LLP, San Francisco, California, for

the defendant-appellee.

1850 SCHEURING v. TRAYLOR BROTHERS
OPINION

CUDAHY, Circuit Judge: 

Plaintiff Kevin Scheuring appeals an adverse grant of summary judgment. Scheuring claims that he is a “seaman” entitled to consideration under the Jones Act, 46 U.S.C. app.

§ 688(a). In the alternative, he argues that he is entitled to sue

the vessel owner in tort under the Longshore and Harbor

Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901 et

seq. The district court determined that he was not a “seaman”

because the nature of his employment was not substantially

connected to a vessel, the William F, and therefore, he could

not sue under the Jones Act. Moreover, the court determined

that the alleged negligence in the positioning of a ramp did

not implicate the duty owed by Traylor Brothers as vessel

owner, and therefore, Scheuring could not sue under 33

U.S.C. § 905(b). We reverse and remand as to both claims.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2002, Kevin Scheuring was hired by the defendant Traylor Brothers, Inc. as a crane operator on the William

F. The William F is a 130-foot long, 798-ton, steel-hulled derrick barge used in construction projects. For the relevant

period, the William F was owned and operated by Traylor

Brothers. A 130-ton crane, which the plaintiff operated, was

affixed to the barge. 

At the time of the plaintiff’s injury, the William F was

being used in the Long Branch Cruise Terminal (LBCT) construction project within the Long Beach Harbor. The LBCT

project involved building a T-shaped docking facility for Carnival Cruise Lines. Traylor Brothers was a subcontractor on

the project in charge of building a passenger wharf, two flanking mooring dolphins1

 and a trestle running back to the shore.

1Mooring dolphins are timber piles driven to the bottom of the harbor

for cushioning seacraft during landing. 

SCHEURING v. TRAYLOR BROTHERS 1851
The William F was dispatched to the LBCT project from June

2002 through November 2002. 

Scheuring was hired as a crane operator in August 2002 to

work for the duration of the LBCT project. He was a member

of the Operating Engineers Union. His work background primarily consisted of operating and maintaining heavy equipment. He was trained as a crane operator, received wages as

a crane operator and did not consider himself a specialist in

marine work. His primary job while employed with Traylor

Brothers on the William F was to operate the crane to loft

pile, hold the leads that captured the pile and start the hammer

that drives the pile. At times, Scheuring helped to move the

William F by fleeting, or heaving back and forth on her

anchor lines, for purposes of repositioning the barge for the

next set of piles to be driven. Scheuring occasionally handled

lines, weighed and dropped anchors, stood lookout, monitored

the marine band radio and spliced wire and rope. 

The plaintiff alleges that the barge was subject to the tides

and tossed by sea swells, wind waves, vessel wakes and tidal

currents. The barge did not operate on its own power, but

rather by means of winches,2 which slackened or tightened

anchor lines, thereby allowing minor maneuvering and repositioning. The William F fleeted, or heaved back and forth on

her anchor lines, on a daily basis. The barge was secured to

the shore by multiple permanent lines. On occasion, these

cables would break. The barge was also unmoored and towed

by a tugboat to a new anchorage on at least three occasions

while the plaintiff was aboard. 

To board the barge, the crew had to walk down a 20-foot

ramp leading from the water’s edge to an offshore float. Once

on the float, the crew would take a skiff to the barge. The

2A winch is a stationary motor-driven or hand-powered machine used

for hoisting or hauling, where a rope or chain is wrapped around a drum

and is attached to the load being moved. 

1852 SCHEURING v. TRAYLOR BROTHERS
ramp could not be affixed to the float, and, on average, a few

times a week it would fall into the water. On the morning of

September 11, 2002, the plaintiff arrived at work and found

the end of the ramp in the water. While attempting to lift the

180-pound ramp out of the water with the help of others, he

slipped and injured his back. Scheuring alleges that Traylor

Brothers had known for at least two months about this problem with the ramp.

Scheuring filed this lawsuit against Traylor Brothers claiming that he is entitled to recover for his personal injuries as a

seaman under the Jones Act, 476 U.S.C. § 688. In the alternative, Scheuring sues for negligence under the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b).3

The defendant filed a motion for summary judgment. The district court granted that motion on August 24, 2004. The plaintiff moved for reconsideration on September 16, 2004, which

the district court denied on October 6, 2004. Scheuring

appealed.

STANDARD OF REVIEW

We review de novo the order granting summary judgment.

Martinez v. Signature Seafoods Inc., 303 F.3d 1132, 1134 (9th

Cir. 2002). Summary judgment should be granted “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). In determining whether summary judgment is appropriate, we view the facts in the light most favor3Scheuring also sues for negligence based on unseaworthiness and for

maintenance, cure and related payments. Both parties agree that these two

additional claims depend on Scheuring’s qualifying as a “seaman” under

the Jones Act. In other words, if the Jones Act claim fails, so too do the

unseaworthiness and maintenance, cure and related payments claims. 

SCHEURING v. TRAYLOR BROTHERS 1853
able to the non-moving party and draw reasonable inferences

in favor of that party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). 

DISCUSSION

The present case involves alternative maritime tort claims.

First, the plaintiff is suing the defendant, as his employer, as

a seaman under the Jones Act, 46 U.S.C. app. § 688(a). In the

alternative, he is suing the defendant, as the vessel owner, as

a harbor worker under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 905(b). We will examine each

claim in turn. 

A. The Jones Act Claim 

[1] The Jones Act provides in pertinent part:

Any seaman who shall suffer personal injury in the

course of his employment may, at his election, maintain an action for damages at law, with the right of

trial by jury, and in such action all statutes of the

United States modifying or extending the commonlaw right or remedy in cases of personal injury to

railway employees shall apply . . . . 

46 U.S.C. app. § 688(a). The defendant contends that the

plaintiff is not a “seaman” and therefore is not entitled to

recovery under the Jones Act. The determination of who is a

seaman is a mixed question of fact and law. Chandris, Inc. v.

Latsis, 515 U.S. 347, 369 (1995). The interpretation of statutory terms is within the purview of the court, but “ ‘[i]f reasonable persons, applying the proper legal standard, could

differ as to whether the employee was a “member of a crew,”

it is a question for the jury.’ ” Id. (quoting McDermott Int’l,

Inc. v. Wilander, 498 U.S. 337, 356 (1991)). 

[2] Although the Jones Act was originally enacted in 1920,

the question of who is a “seaman” continues to perplex the

1854 SCHEURING v. TRAYLOR BROTHERS
courts. In the 1990s, the Supreme Court considered this question in a number of cases. In Chandris, the Court articulated

a two-part test which drew on its holdings in earlier cases:

[T]he essential requirements for seaman status are

twofold. First, as we emphasized in Wilander, “an

employee’s duties must ‘contribut[e] to the function

of the vessel or to the accomplishment of its mission.’ ” . . . 

Second, . . . a seaman must have a connection to a

vessel in navigation (or to an identifiable group of

such vessels) that is substantial in terms of both

duration and its nature. 

Chandris, 515 U.S. at 368 (citations omitted). The defendant

does not dispute that Scheuring’s employment contributed to

the function of the William F, thus meeting the first requirement of the test. Nor does the defendant question the “substantial duration” component of the second requirement. The

key issue in this branch of the case is whether the nature of

Scheuring’s duties involved a substantial connection to the

William F. 

[3] As the Supreme Court explained in Chandris, the first

part of the requirement is very broad, covering “ ‘[a]ll who

work at sea in the service of a ship.’ ” Id. (quoting Wilander,

498 U.S. at 354). The second requirement, on the other hand,

narrows the pool of potential seaman in order

to give full effect to the remedial scheme created by

Congress and to separate the sea-based maritime

employees who are entitled to Jones Act protection

from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not

regularly expose them to the perils of the sea. 

SCHEURING v. TRAYLOR BROTHERS 1855
Id. The Court explained that this test is “fundamentally status

based.” Id. at 361. “Land-based maritime workers do not

become seamen because they happen to be working on board

a vessel when they are injured, and seamen do not lose Jones

Act protection when the course of their service to a vessel

takes them ashore.” Id. The Court also equated the question

of who is a “seaman” to the determination of who is a “member of a crew.” Id. at 356. Decided two years later, Harbor

Tug & Barge Co. v. Papai, 520 U.S. 548 (1997) provides

additional guidance on the substantial connection prong of the

test articulated in Chandris.

For the substantial connection requirement to serve

its purpose, the inquiry into the nature of the

employee’s connection to the vessel must concentrate on whether the employee’s duties take him to

sea. This will give substance to the inquiry both as

to the duration and nature of the employee’s connection to the vessel and be helpful in distinguishing

land-based from sea-based employees. 

Papai, 520 U.S. at 555. The crux of the second prong of the

“seaman” test involves distinguishing land-based from seabased employees by examining the employee’s activities and

duties. 

We have previously grappled with the “nature” component

of the second prong of the Chandris test. Two cases, one

which affirmed a grant of summary judgment, Cabral v.

Healy Tibbits Builders, Inc., 128 F.3d 1289 (9th Cir. 1997),

and one which reversed, Delange v. Dutra Constr. Co., 183

F.3d 916 (9th Cir. 1999) (per curiam), are of particular relevance to the present case, although neither is entirely on point.

In Cabral, we affirmed the district court’s grant of summary judgment for the defendant, holding that the plaintiff, a

crane operator aboard a construction barge, was a land-based

worker with only a transitory or sporadic connection with the

1856 SCHEURING v. TRAYLOR BROTHERS
barge. We determined that Papai and Chandris stand for the

notion that the court should focus on whether the employee’s

duties are “primarily sea-based activities” in determining

whether the nature of the connection to the vessel is substantial. Cabral, 128 F.3d at 1293. The court concluded that the

plaintiff was a land-based worker because 

Cabral was hired to work on Barge 538 as a crane

operator and not as a crew member. Cabral presents

no evidence showing that he was ever aboard Barge

538 when it was anywhere but the Ford Island Ferry

project. . . . Furthermore, Cabral presents no evidence showing that he would continue to work

aboard Barge 538 after the Ford Island Ferry project

was completed. 

Id. Importantly, there is no mention of Barge 538’s moving

during Cabral’s time aboard it. 

The plaintiff urges this court to follow Delange, 183 F.3d

916. In a per curiam opinion, the court there held that the

plaintiff raised a triable issue of fact as to his status as a seaman and remanded the case for further proceedings. Id. at

919. The plaintiff was hired as a carpenter on a piledriving

crew engaged in the construction of a navigation aid. Id. at

918. The plaintiff rode to the construction site on a barge that

was used as a work platform. Id. at 918. While attempting to

anchor the barge to the construction site, the plaintiff severely

injured his hand. Id. at 918-19. In reversing the district court’s

grant of summary judgment, we distinguished the plaintiff in

that case from the plaintiff in Cabral by examining the specific activities or duties of the two plaintiffs. Unlike the crane

operator in Cabral, the plaintiff in Delange claimed that

“a big part” of his job was to serve as a lookout,

cargo stower, line handler, and occasional pilot when

the barge was being moved—all of which are clearly

seaman’s duties—and only devoted 10% of his time

SCHEURING v. TRAYLOR BROTHERS 1857
to carpentry. He also stated that more than 80% of

his time was spent onboard the barge where “most”

of the work involved crewman and deckhand duties.

Id. at 920. Although Delange was hired as a carpenter, his

duties were more appropriately characterized as sea-based

duties. 

[4] As the district court noted here, Scheuring’s employment as a crane operator is in many ways similar to the plaintiff’s employment in Cabral. Scheuring v. Traylor Bros., No.

CV 03-06613-RZ, slip op. at 6 (C.D. Cal. Aug. 25, 2004).

However, there are important distinctions between the two

cases, which warrant reversal of the district court’s grant of

summary judgment. The condition of the William F was sufficiently different from that of the Barge 538 (in Cabral) to distinguish the plaintiff’s status in Cabral from the present case.

The plaintiff in Cabral did not make any showing of exposure

to vessel-movement or other characteristic seamen’s risks.

Here, Scheuring alleges that the boat was subject to sea

swells, wind waves, vessel wakes and tidal currents. He further alleges that the barge fleeted on her anchor lines on a

daily basis. And, most importantly, on at least three occasions, the plaintiff was aboard the barge as it was unmoored

and moved by a tugboat. The plaintiff contends that during

those movements, he performed duties that could be characterized as “sea-based” duties, such as handling lines, weighing

and dropping anchors, standing lookout, monitoring the

marine band radio and splicing wire and rope. These claims

show the existence of a factual dispute whether the plaintiff’s

employment was land-based or sea-based. See Sw. Marine,

Inc. v. Gizoni, 502 U.S. 81, 84, 92 (1991) (holding that genuine issues of material fact existed as to the plaintiff’s seaman

status where the plaintiff rode on floating platforms as they

were towed into place, occasionally served as a lookout and

gave maneuvering signals to the tugboat operator and

received lines passed to the platforms by the ships’ crews to

secure the platforms). The district court incorrectly described

1858 SCHEURING v. TRAYLOR BROTHERS
the William F as stationary. But its movements, although perhaps relatively minor and infrequent, are sufficient to distinguish the present case from Cabral and warrant reversal. See

also Delange, 183 F.3d at 920 (noting that the barge moved

only four times during the relevant period of time). 

[5] The plaintiff urges this court to rely solely on the plaintiff’s account of surges, tides and swells to classify him as a

seaman. We reject this approach as it would render the second

requirement — that the employee have a substantial connection to the vessel both in terms of duration and nature —

meaningless. By analyzing only the vessel’s movements, the

activities and duties of the employee would become inconsequential — a result which conflicts with Supreme Court and

Ninth Circuit precedent. See Papai, 520 U.S. at 555; Chandris, 515 U.S. at 368; Cabral, 128 F.3d at 1293. Therefore,

we examine the vessel’s movements in light of the plaintiff’s

duties in order to assess whether the plaintiff has presented

evidence that would allow a jury to find a substantial connection to the vessel both in terms of duration and nature. See

Papai, 520 U.S. at 555 (stating that courts should “concentrate on whether the employee’s duties take him to sea”). 

[6] The evidence supporting the plaintiff’s Jones Act claim

may be somewhat limited. Nonetheless, the movements of the

vessel, albeit relatively minor, and the sea-based duties of the

plaintiff, although ancillary to his core responsibility as a

crane operator, raise genuine issues of material fact which

warrant jury consideration. Accordingly, we reverse the district court’s grant of summary judgment for the defendant. 

B. Longshore and Harbor Workers’ Compensation Act

Claim

[7] The plaintiff alleges an alternative claim for relief. If he

fails to establish that he is a seaman under the Jones Act, then,

he argues, he is a harbor worker entitled to relief under the

Longshore and Harbor Workers’ Compensation Act

SCHEURING v. TRAYLOR BROTHERS 1859
(LHWCA), 33 U.S.C. §§ 901 et seq. Pursuant to § 905(a), an

employee may not recover in tort for the negligence of his

employer; rather, he is entitled to statutory payments. However, § 905(b) allows an employee to recover for the negligence of a vessel owner: “In the event of injury to a person

covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover

damages by reason thereof, may bring an action against such

vessel . . . .” 33 U.S.C. § 905(b). 

[8] Here, the defendant is both the employer and the vessel

owner, thus a case such as this is commonly referred to as a

“dual-capacity” suit. When the vessel owner and the employer

are the same entity, an employee may recover for negligence

if the negligence was that of the employer acting in its capacity as a vessel owner, not as an employer. Jones & Laughlin

Steel Corp. v. Pfeifer, 462 U.S. 523, 531 n.6, 532 (1983).4 The

question here is whether Traylor Brothers’ alleged negligence

with respect to the ramp-float-skiff system of entry was as

vessel owner or as employer. We conclude that there is a genuine issue of material facts as to whether the duty owed to

Scheuring belonged to Traylor Brothers as the vessel owner.

4

In 1984, Congress amended § 905(b) to bar negligence actions where

the “person was employed to provide shipbuilding, repairing, or breaking

services and such person’s employer was the owner, owner pro hac vice,

agent, operator, or charterer of the vessel.” 33 U.S.C. § 905(b). In Bush v.

Eagle-Picher Indus., Inc., 927 F.2d 445, 449 (9th Cir. 1991), we incorrectly stated in dicta that the amendment barred all dual-capacity suits. We

have already acknowledged this error. See Heise v. Fishing Co. of Alaska,

Inc., 79 F.3d 903, 907 n.2 (9th Cir. 1996) (noting that the statement in

Eagle-Picher that the 1984 amendment barred dual-capacity suits was

incorrect dicta). To the extent any confusion remains, the 1984 change

bars only shipbuilders, ship repairers and ship breakers from bringing a

claim where the employer and the vessel owner are the same entity. See

also Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 608 (1st Cir. 1996)

(en banc); Guilles v. Sea-Land Serv., Inc., 12 F.3d 381, 386 (2d Cir.

1993); Gay v. Barge 266, 915 F.2d 1007, 1010 (5th Cir. 1990). The plaintiff was not hired to provide shipbuilding, repairing or breaking services,

and therefore his claim under the LHWCA is not barred by the 1984

amendment. 

1860 SCHEURING v. TRAYLOR BROTHERS
[9] The Supreme Court has indicated that Congress left to

the courts the task of defining the vessel owner’s duty of care.

See Howlett v. Birkdale Shipping Co., 512 U.S. 92, 97-98

(1994); Scindia Steam Navigation Co. v. De Los Santos, 451

U.S. 156, 165-66 (1981). In Scindia, the Court first considered the duties a vessel owner owed to an injured longshore

worker, which in a subsequent case were divided into three

categories:

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. 

Howlett, 512 U.S. at 98 (quoting Scindia, 451 U.S. at 167-68)

(citations omitted).5 The present case concerns the turnover

5

In Scindia and Howlett, the vessel owner and the employer were separate entities. The Supreme Court has not yet considered the vessel owner’s

duties in a dual-capacity case. Our sister circuits have grappled with the

question whether the duties outlined in Scindia and Howlett should also

apply to dual-capacity cases. The First and Fifth Circuits have allocated

the same vessel duties of care to dual and single capacity defendants. See

Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 612 (1st Cir. 1996) (en

banc) (holding that “the duties of care described in Scindia should be

applied in dual capacity cases”); Castorina v. Lykes Bros. S.S. Co., 758

F.2d 1025, 1033 (5th Cir. 1985) (holding that “the duty owed by a shipowner to a longshoreman under section 905(b) is that established by

Scindia and its progeny; this duty is neither heightened nor diminished

when the longshoreman is employed directly by the vessel”). The Second

Circuit, in a case preceding Jones & Laughlin Steel Corp. v. Pfeifer, held

that a vessel owner assumes a greater duty of care when there is no independent employer. Fanetti v. Hellenic Lines Ltd., 678 F.2d 424, 428 (2d

Cir. 1982). Since we believe the duty of care defined by the Supreme

Court in Scindia covers the alleged breach by Traylor Brothers as vessel

owner, we do not need to reach this issue. 

SCHEURING v. TRAYLOR BROTHERS 1861
duty, of which there are two discrete duties — the duty of safe

condition and the duty to warn. Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1268 (9th Cir. 1994); Bjaranson v.

Botelho Shipping Corp., Manila, 873 F.2d 1204, 1207 (9th

Cir. 1989). For our purposes, we are most concerned with the

duty of the owner to turn over the vessel in safe condition. 

[10] In order to fulfill this duty: 

A vessel must “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 reasonably 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, 512 U.S. at 98 (quoting Fed. Marine Terminals, Inc.

v. Burnside Shipping Co., 394 U.S. 404, 416-17 n.18 (1969)).6

In light of this duty to turn over the vessel in safe condition,

the present case poses two issues. The first issue is whether

the ramp is part of the William F’s “equipment and appliances.” Howlett, 512 U.S. at 98. The second issue is whether

there is a genuine issue of material fact whether Traylor

Brothers acted reasonably in fulfilling its turnover duty. 

6The Supreme Court has not considered a case involving a nonlongshoring harbor worker, like the plaintiff in the present case. Although

there may be important differences between the two types of workers (see

Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 610 (1st Cir. 1996)), the

basic holding of the Supreme Court and the Ninth Circuit with respect to

the vessel owner’s duties as to longshore workers pursuant to the LHWCA

applies with equal force to that owed to harbor workers. In other words,

the vessel owner owes a standard of care to a harbor worker, “mindful of

the dangers he should reasonably expect to encounter,” as opposed to a

standard of care that might be owed to someone unfamiliar with the dangers of a ship, i.e., a guest of the boat. 

1862 SCHEURING v. TRAYLOR BROTHERS
[11] In rejecting Scheuring’s LHWCA claim, the district

court analogized the ramp to a dock or pier. Scheuring v.

Traylor Bros., No. CV 03-06613-RZ, slip op. at 9 (C.D. Cal.

Aug. 25, 2004). In opposition, the plaintiff asks us to view the

ramp as a gangway. This distinction is critical since a gangway constitutes an appliance of a vessel but a dock or pier

does not. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 207

(1971) (holding that a gangway is the dividing line between

admiralty and state jurisdiction); see also Romero Reyes v.

Marine Enterprises, Inc. 494 F.2d 866, 870 (1st Cir. 1974)

(noting that “the authorities are virtually unanimous that maritime liability encompasses the gangway”). There is a genuine

issue of material fact whether the ramp at issue in the present

case is more like a gangway than a dock or pier. 

[12] In order to board the barge, the plaintiff and the other

individuals working aboard the William F had to use the

ramp. There were no other means of embarking. Some of our

sister circuits have held that a gangway or ramp which is

“necessarily used for embarking and disembarking” becomes

a “basic appurtenance of the vessel.” Sarauw v. Oceanic Navigation Corp., 655 F.2d 526, 528 (3d Cir. 1981); see also

Romero Reyes, 494 F.2d at 869 (holding that the apparatus

which was the “regular means of boarding and leaving the

vessel” was included in the seaworthiness warranty). Even if

the ramp could not be fairly characterized as a gangway, the

turnover duty, at a minimum, requires a vessel to provide a

safe means of access. See Gay v. Barge 266, 915 F.2d 1007,

1012 (5th Cir. 1990); Romero Reyes, 494 F.2d at 869; cf.

Davis v. Partenreederi M.S. Normannia, 657 F.2d 1048, 1053

(9th Cir. 1981) (holding that the vessel owner had a responsibility to correct the positioning of the gangway).7

 The only

7Although not argued by the plaintiff, Traylor Brothers as vessel owner

might have also breached its duty to intervene by failing to correct the

unsafe condition of the ramp. Sarauw, 655 F.2d at 529 (determining that

a jury could find that the vessel owner “failed in its duty of exercising due

care to discover and correct the unsafe condition of the gangway”); Gay,

SCHEURING v. TRAYLOR BROTHERS 1863
difference between the ramp used by the plaintiff here and a

gangway is that the ramp was not attached to the barge. The

fact that the ramp did not extend to the barge, which presumably would have made it safer, should not preclude Scheuring’s lawsuit. Such logic would allow a barge owner to avoid

liability by providing no means of access and effectively

requiring harbor workers to swim to the barge. Accordingly,

we conclude that there is a genuine issue of material fact

involving the characterization of the ramp at issue here. 

[13] The second issue before us concerns whether Traylor

Brothers discharged its turnover duty by providing the rampfloat-skiff means of access. The vessel owner has only to

exercise ordinary care in light of the fact that the operation

will be conducted by “an expert and experienced stevedoring

contractor, mindful of the dangers he should reasonably

expect to encounter.” Howlett, 512 U.S. at 98. “This implies

that certain dangers that may be hazardous to unskilled persons need not be remedied if an expert and experienced stevedore could safely work around them.” Bjaranson v. Botelho

Shipping Corp., Manila, 873 F.2d 1204, 1208 (9th Cir. 1989).

But, any hazardous condition must not constitute “an unreasonably dangerous work environment to experienced longshoremen exercising reasonable care.” Martinez v. Korea

Shipping Corp., 903 F.2d 606, 610 (9th Cir. 1990). 

We have previously affirmed grants of summary judgment

where the plaintiff failed to act as an “expert and experienced

stevedore.” In Bjaranson, we held that a bare boat charterer

did not breach the duty of safe condition where “an expert and

experienced stevedore could have safely conducted the cargo

915 F.2d at 1012 (“The vessel owner has a duty to intervene in the stevedore’s operations when he has actual knowledge both of a hazardous condition and that the stevedore, in the exercise of ‘obviously improvident’

judgment, intends to continue work in spite of that condition. This court

has previously held this duty applicable even when the vessel owner conducts its own stevedoring operations.”) (footnote omitted). 

1864 SCHEURING v. TRAYLOR BROTHERS
operation.” 873 F.2d at 1208. Similarly, in Ludwig v. Pan

Ocean Shipping Co., 941 F.2d 849, 852 (9th Cir. 1991) (per

curiam), we held that the plaintiff could have avoided the hazardous situation, and therefore, the plaintiff failed to show

that he acted as an expert and experienced stevedore. 

[14] But, the question whether a defendant acted reasonably is ordinarily a question for the trier of fact. Thomas v.

Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994);

Martinez, 903 F.2d at 609. In Thomas, we reversed the district

court’s grant of summary judgment for the defendant vessel

owner, finding a material issue of fact as to the ultimate issue

of “unreasonable dangerousness.” In that case, the plaintiff

fell through a hatch opening which was completely uncovered

and unguarded. 42 F.3d at 1268. Similarly, in Martinez, we

reversed a summary judgment order in favor of the vessel

owner reasoning that whether an unguarded ladder opening on

a lashing platform was unreasonably dangerous to longshore

workers was a question of fact for the jury. 903 F.2d at 609.

[15] Here, Scheuring has established that there are genuine

issues of material fact with respect to the ramp’s status and

Traylor Brothers’ exercise of its turnover duty. Since these

issues should have gone to a jury, we reverse the district

court’s grant of summary judgment as to the LHWCA claim.

REVERSED AND REMANDED. 

SCHEURING v. TRAYLOR BROTHERS 1865