IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40616

PATRICK KIRKSEY

Plaintiff-Appellee

V.

TONGHAI MARITIME; COSCO BULK CARRIER COMPANY LTD., DOING

BUSINESS AS COSCO BULK

Defendants-Third Party PlaintiffsAppellants,

V.

PAN OCEAN SHIPPING CO., LTD.; STX PAN OCEAN CO. LTD.,

Third Party DefendantsAppellants.

Appeal from the United States District Court

for the Southern District of Texas

USCA No. 3:05-CV-57

Before HIGGINBOTHAM, DAVIS, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This is an appeal in a 33 U.S.C. § 905(b) action from a judgment in favor

of longshoreman, Patrick Kirksey, against the owner, operator, and charterer of

a vessel, following a bench trial. The district court concluded that the unstable

stow of the cargo made the vessel dangerous to the unloading longshoremen and

United States Court of Appeals

Fifth Circuit

F I L E D

July 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-40616

1 33 U.S.C. § 901 et seq.

2

that the vessel owner failed to exercise reasonable care to turn the ship over to

the stevedore in such condition that a reasonably competent stevedore could

safely unload it. Because the record is uncontradicted that the dangerous

condition in the cargo stow found by the district court was open and obvious to

the stevedore, we reverse and render. 

I.

In the fall of 2004,the M/V TONGHAI left Korea bound for Mexico and the

United States with a load of steel products. The ship encountered heavy seas

while crossing the Pacific Ocean. After calling on two other ports, the vessel

arrived in Houston on December 11, 2004. 

On December 14, 2004, Kirksey was working in a longshoremen gang for

a stevedore, P&O Ports Texas, Inc. (“P&O”), which was under contract with the

vessel charterer to unload the vessel. On that morning, Kirksey reported to

work at City Dock #26, Port of Houston, to continue unloading the M/V

TONGHAI. The vessel was owned by Tonghai Maritime (“Tonghai”), under

charter to Pan Ocean and operated by Cosco Bulk Carrier Co., Ltd. (“Cosco”)

(sometimes referred to collectively as “shipowner”). Kirksey named Tonghai and

Cosco as defendants, and P&O intervened for reimbursement of benefits it paid

Kirksey under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”).1

On the day of the accident, Kirksey was a member of a five man

longshoreman crew discharging coiled steel and other steel products from the

vessel’s No. 5 hold. Four members of the crew were in the hold, and a fifth man

operated the vessel’s crane to hoist the coils out of the hold. 

Pan Ocean and P&O performed a joint survey of the cargo in the No. 5

hold before unloading began. Thomas O’Keefe represented Pan Ocean, and
No. 07-40616

3

James Stemwedel represented P&O. O’Keefe found the steel coils to be safely

stowed. Stemwedel disagreed and found the stow unstable. Neither surveyor

reported any dangerous condition to representatives of either the stevedore or

the vessel owner or the charterer or advised anyone thatthe unloading could not

proceed safely. 

On the afternoon of December 13, the day before the accident, Kirksey’s

gang discharged the top tier of steel coils without incident. On the morning of

December 14, the men began discharging the second tier of coils. Kirksey was

standing on the floor of the No. 5 hold, and Gibson, another member of his crew,

stood on top of the four ton coil to be lifted. They worked together to attach the

lifting straps to the coil, which were to be attached to the crane hook for lifting.

During the process of securing the lifting straps to the coil in question, someone

on the deck called for the band cutter to be sent topside for use in another hold.

One of the men standing on top of the coils, either Valley or Gibson, hooked a

band cutter onto the crane hook rig to be sent up to the deck. The coil to be

unloaded tipped over and fell on Kirksey just as the band cutter was being lifted

out of the hold. Kirksey lost a leg and suffered other serious injuries.

Gibson testified that he believed the end ofthe lifting strap he was holding

became entangled in the hook rig as the band cutter was lifted. The district

court, however, did not credit this testimony but rather credited the testimony

of Colquitt, another crew member, who testified that the crane line was well out

of the way when the coil tipped over and fell. The court found that “the

vibrations caused by the operation ofthe vessel’s crane jarred the already poorly

stowed coil loose, causing it to tip over onto Kirksey.” 

The district court found that the coils and steel pipe were poorly stowed,

which made it difficult to discharge the cargo. The court accepted Capt.

Stemwedel’s testimony on this point, along with Kirksey’s testimony and the

testimony oftwo members of his crew, based on their observation of leaning coils
No. 07-40616

4

and uneven dunnage. The district court concluded that because of negligence of

the loading stevedore or shifting of the cargo in the heavy seas encountered

during the voyage, or both, the stow was unstable, and this created a dangerous

condition. The court also accepted Capt. Stemwedel’s opinion that once the

longshoremen encountered the cargo stowed as it was, they did the best they

could under the circumstances and that their only real choice was to unload the

cargo or leave the job.

Based on these findings,the district court concluded thatthe vessel owner

failed to exercise reasonable care to have the vessel in such condition that an

expert and experienced stevedore could safely unload the vessel. The district

court also faulted the vessel for failing to warn the stevedore that the vessel had

encountered heavy seas on the voyage, which would have alerted the stevedore

to possible shifting of the cargo, creating a danger to the unloading

longshoremen.

In summary, the district court found that the “dangerous condition of the

stow — the leaning coils, the inadequate dunnage, the lack of uniformity in the

stow — was the overwhelming proximate cause of Kirksey’s injuries.” The court

assigned fault 45% to vessel owner/operator, 45% fault to charterer Pan Ocean,

and 10% to Kirksey.

Our review of the record leads us to conclude that the version of the

accident as found by the district court – although hotly contested – is supported

by the record, and those findings are not clearly erroneous.

Although the district court made no explicit finding on whether the

unstable condition of the stow was open and obvious, our review of the record

reveals no dispute about this fact. The district court’s findings on the unstable

nature of the stow are largely based on surveyor Stemwedel’s report of his

survey of the cargo in the # 5 hold before the unloading began. Indeed, the

district court describes the stow as: “improper stowage such as is seen in
No. 07-40616

2 451 U.S. 156, 165 (1981); see also Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92.

98 (1994). 

3 111 F.3d 1239, 1245 (5th Cir. 1997) (quoting Randolph v. Laeisz, 896 F.2d 964, 970

(5th Cir. 1990)). 

4 Howlett, 512 U.S. at 98; see also generally Scindia, 451 U.S. 156. 

5

Stemwedel’s photos attached to this report.” These photographs were taken

before the unloading operations began. 

Based upon the facts as found by the district court, we now turn to the

legal issue of the duty owed by the shipowner under these circumstances and

whether there was a breach of that duty.

II.

The merits of this case turn on Kirksey’s rights under 33 U.S.C. § 905(b)

against the defendants vessel owner and charterer. The Supreme Court, in

Scindia Steam Nav. Co., Ltd. v. De Los Santos, has limited the duties vessel

owners owe under § 905(b).2In Greenwood v. Societe Francaise de, we stated

that “[t]he basic principle which emerges from Scindia is that the primary

responsibility for the safety of the longshoreman rests upon the stevedore.”3

It is now well accepted that shipowners owe three narrow duties to

longshoremen: (1) a turnover duty, (2) a duty to exercise reasonable care in the

areas of the ship under the active control of the vessel, and (3) a duty to

intervene.4 Kirksey’s suit against the vessel owner in this case is predicated

solely upon its breach of the turnover duty. Consequently, the only issue before

us is whether the district court erred in concluding that the shipowner breached

that duty. The turnover duty applies to the shipowner’s obligation before or at

the commencement of the stevedore’s activities. 

This duty places two responsibilities on the vessel owner. First, the owner

owes a duty to exercise ordinary care under the circumstances to turn over the

ship and its equipment in such condition that an expert stevedore can carry on
No. 07-40616

5 See Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416–17

& n.18 (1969). 

6 Howlett, 512 U.S. at 99–100. 

7

Id. at 99–100; 105. 

8

Id. at 100–01. 

6

stevedoring operations with reasonable safety.5 Second, the owner owes a duty

to warn the stevedore of latent or hidden dangers which are known to the vessel

owner or should have been known to it;6 however, the duty to warn of hidden

dangers is narrow.7It does not include dangers which are either: (l) open and

obvious or (2) dangers a reasonably competent stevedore should anticipate

encountering.8

Kirksey argued, and the district court found, that the shipowner in this

case violated its turnover duty by failing to exercise ordinary care to turn over

the ship in a safe condition so as to allow the stevedore to safely perform its work

and by failing to warn the stevedore that the vessel had encountered rough seas

during the voyage creating a risk of unstable cargo stow. Because it is

uncontested that the stevedore was fully aware of the alleged hazardous

condition of the cargo stow, the narrow question presented by this case is

whether the district court erred in allowing Kirksey to recover from the

shipowner, given the open and obvious nature of the defect in the cargo stow

and the corresponding danger it created.

The Supreme Court’s decision in Howlett v. Birkdale Shipping Co., S.A.,

clearly answers this question in the affirmative with respectto Kirksey’s failure

to warn claim. In Howlett, a longshoreman was working with a stevedoring crew

engaged in unloading a vessel. After partially unloading a portion of a hold, a

sheet of plastic on which the unloaded cargo had rested was exposed. The

plaintiff jumped to the deck, landed on the plastic, and slipped and injured
No. 07-40616

9

Id. at 95. 

10 Id. at 105. 

7

himself. He had expected to land on other less slippery material, such as paper

or plywood. 

Plaintiff argued that the shipowner violated its turnover duty by failing

to warn that plastic, rather than a safer material, had been improperly placed

under the cargo. The shipowner asserted the open and obvious defense. The

district court and the court of appeals held that because the hazard was open

and obvious, the shipowner had no duty to warn.9 On review, the Court

describing the vessel’s duty to warn, stated: 

In sum, the vessel’s turnover duty to warn of latent defects in the

cargo stow and cargo area is a narrow one. The duty attaches only

to latent hazards, defined as hazards that are not known to the

stevedore and that would be neither obvious to nor anticipated by

a skilled stevedore in the competent performance of its work.10

In this case, the district court’s findings make it clear that the stevedore,

through its surveyor, and the longshoremen on the job were well aware of the

condition of the cargo stow. Therefore, under Howlett, the shipowner had no

obligation to warn against this obvious danger. 

Kirksey argues further that the shipowner owed a duty to warn the

stevedore that the ship had encountered particularly heavy seas crossing the

Pacific, thus increasing the risk of an unstable stow. We conclude that Howlett

also forecloses this argument. If the shipowner had no obligation to warn of an

obviously defective stow, it can have no duty to warn of an incident that creates

a risk of shifting cargo and an unstable stow. Knowledge that the vessel

encountered heavy seas and weather would not be helpful to the stevedore in
No. 07-40616

11 See Marino v. Kent Line Int’l, Ltd., 02-4488, 2003 WL 22519449, at *4 (E.D. Pa. Oct.

3, 2003). 

12 See Howlett, 512 U.S. at 99–100. 

13 Id. at 101 (quoting Scindia, 451 U.S. at 172). 

14 Id. at 101–02 (quoting Scindia, 451 U.S. at 168, 172). 

8

assessing the risk its longshoremen would face in unloading the vessel when the

stevedore has actual knowledge of the conditions in the hold.11

Thus, Howlett confirmed the availability of the open and obvious defense

to the turnover duty to warn. The Court, however, made it clear that it did not

definitively decide whether this defense was applicable to the turnover duty to

provide a reasonably safe vessel. Thus, although Howlett is not dispositive on

this issue, the Court’s analysis is helpful to us in resolving this question. 

• In developing the contours of the turnover duty to warn, the Court

emphasized that the turnover duty must be defined in relation to

the role of the stevedore and the shipowner.12

• The shipowner has a right to expect “that the stevedore would

perform with reasonable competence and see to the safety of the

cargo operations.”13

• The Court reiterated its Scindia reasoning that the imposition of a

duty on the vessel to inspect and supervise cargo operations would

“undermine Congress’ intent in §5(b) to terminate the vessel’s

‘automatic faultless responsibility for conditions caused by the

negligence or other defaults of the stevedore,’ and to ‘foreclose

liability based on a theory of unseaworthiness or non-delegable

duty.’”14

• The Howlett Court then stated that:

The foregoing principles, while taken from Scindia Steam’s

examination of the vessel’s duty to intervene, bear as well on
No. 07-40616

15 Id. at 102–03. 

16 Id. at 104 (quoting Scindia, 451 U.S. at 167; Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd., 369 U.S. 355, 366 (1962) (Stewart, dissenting)). 

9

the nature ofthe vessel’s turnover duty, and hence on the case

before us. We consider first Howlett’s view that a vessel must

make reasonable inspections during stevedoring operations to

ensure a proper stow and to detect any hazards or defects

before they become hidden. The beneficiaries of this proposed

duty would be longshoremen who unload or otherwise deal

with the cargo at later ports. But if, as we held in Scindia

Steam, a vessel need not supervise or inspect ongoing cargo

operations for the benefit of longshoremen then on board, it

would make little sense to impose the same obligation for the

benefit of longshoremen at subsequent ports. In practical

effect, then, adopting Howlett’s proposal would impose

inconsistent standards upon shipowners as to different sets of

longshoremen[] and would render much of our holding in

Scindia Steam an empty gesture.15

• The Court also considered the plaintiff’s argument that a vessel

must inspect the stow after stevedoring operations are complete to

discover hazards in the stow: 

There is good reason to doubt that adopting this rule would

have much practical import. Any hazard uncovered by a

shipowner who inspects a completed stow would, as a matter

of course, be discovered in a subsequent port by a stevedore

“reasonably competent in the performance of his work.” As

discussed above, shipowners engage a stevedore for its

expertise in cargo operations and are entitled to assume that

a competent stevedore will be able to identify and cope with

defects in the stow. . . . Once loading operations are complete,

it follows that any dangers arising from an improper stow

would be “at least as apparent to the [stevedore] as to the

[shipowner].”16

Thus, most of the same considerations Howlett gives for permitting the

shipowner to assert an open and obvious defense to a failure to warn claim
No. 07-40616

17 8 F.3d 1442 (9th Cir. 1993). 

18 Id. at 1447. 

19 Id. (citing Martinez v. Korea Shipping Corp., Ltd., 903 F.2d 606, 609–10 (9th Cir.

1990)). 

20 Scindia Steam Nav. Co. v. Riggs, 512 U.S. 1216 (1994). 

10

strongly support making the same defense available to the shipowner defending

against a claim based on the general failure to provide a safe ship based on

defects in the stow. 

Our conclusion is confirmed by a closely analogous case from the Ninth

Circuit, Riggs v. Scindia Steam Navigation Co.17 In that case, the loading

stevedore had improperly stowed the cargo of pipe which was strewn throughout

the hold in an obviously hazardous manner. The longshoreman brought suit

against the vessel owner asserting that the owner and time charterer had

negligently failed to provide him a reasonably safe place to work. The district

court granted summary judgment for the vessel owner, holding that the vessel

had no legal duty to prevent or alleviate the unsafe conditions in the cargo hold

because the dangers were open and obvious to the longshore workers. The Ninth

Circuit Court of Appeals reversed, holding, in effect, that the open and obvious

defense did not absolve the vessel owner of the turnover duty to provide a

reasonably safe vessel.18 Under the Ninth Circuit’s reasoning, an open and

obvious hazard may be unreasonably dangerous and, therefore, constitute a

breach of the turnover duty to provide a reasonably safe vessel.19 The Supreme

Court granted certiorari and vacated the judgment and remanded the case to the

United States Court of Appeals for further consideration in light of Howlett.20

On remand, the Ninth Circuit announced that “consistent with the Howlett

decision, we now affirm the district court’s grant of summary judgment to the
No. 07-40616

21 Riggs v. Scindia Steam Nav. Co., Ltd., aff’d on remand, 35 F.3d 1466 (9th Cir. 1994).

22 See Clay v. Daiichi Shipping, 74 F.Supp.2d 665 (E.D. La. 1999). 

23 237 F.3d 631 (5th Cir. 2000) (“The judgment is AFFIRMED for essentially the

reasons stated by the district court in its Order and Reasons dated November 10, 1999.”). 

24 74 F.Supp.2d at 672. 

11

vessel.”21 We are persuaded that the Ninth Circuit correctly concluded that the

reasoning, if not the letter of the Howlett opinion, compelled this result.

In an unpublished opinion, Clay v. Daichi ChhuoShipping (America), Inc.,

we affirmed a judgment from the Eastern District of Louisiana,22 which reached

the same conclusion.23 In Clay,the vessel departed Japan loaded with steel coils

and steel pipe. The cargo was discharged from the forward end of Hold No. 1 in

Houston, without incident. The ship arrived in New Orleans and was inspected

and accepted by the stevedore for discharge. While discharging loose pipe

stowed against the ship’s bulkhead, the pipe hook slipped out of the end of the

pipe, and the pipe rolled over Clay. Clay maintained that stowage of the pipe

against the bulkhead, requiring the longshoremen to break outthe pipe, created

an unreasonably dangerous condition. The longshoremen had been unloading

the pipe stowed against the bulkhead for more than two hours before the

accident, and the district court found that the alleged dangerous condition was

obvious to them.24

The Court first concluded that under Howlett, the duty to warn did not

include the duty to warn of open and obvious dangers or something a reasonably

competent stevedore should anticipate encountering. The court then turned to

the question of whether the open and obvious defense was available to the

shipowner’s more general obligation to turn over a reasonably safe vessel. After

discussing Howlett and Riggs, the court concluded:

A fair reading of these opinions compels the conclusion that the

open and obvious defense is applicable to the turnover duty to
No. 07-40616

25 Id. at 671 (citing Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1258 (9th

Cir. 1998)). See also Greenwood v. Societe Francaise De, 111 F.3d 1239, 1248 (5th Cir. 1997).

26 See Samuel A. Keesal, Jr. et al., Shipowners’ Liability for Longshoremen Personal

Injuries: The Supreme Court Blocks the “Importation” of Unseaworthiness, 7 U.S.F. Mar. L.J.

67, 106–08 (1994). 

27 656 F.2d 110 (5th Cir. 1981). 

28 730 F.2d 296 (5th Cir. 1984). 

29 873 F.2d 842 (5th Cir. 1989). 

12

provide a safe vessel and that a vessel owner has no legal duty to

prevent or alleviate an unsafe condition in the cargo hold resulting

from an improper stow when the condition is open and obvious to

the longshore workers. While this result seems harsh, it is

motivated by the conviction that a contrary result would put all

costs on the party who is least able to avoid the accident: the vessel.

More importantly, it is believed thatimposing liability on the vessel

owner would completely remove the incentive to act with caution

from the party who is in the best position to avoid accidents: the

stevedore.25

We agree with this analysis. Given the Howlett Court’s clear language strictly

limiting the vessel’s turnover duty to warn to latent defects and dangers, it

makes no sense to say that the vessel is nevertheless liable to the longshoremen

for breach of the duty to turnover a safe ship based on an obvious defect against

which it had no duty to warn.26

Kirksey relies on three cases decided by this Court before the Supreme

Court decided Howlett: Lemon v. Bank Lines, Ltd.;27 Harris v. Flota Mercante

Grancolombiana, S.A.;

28 and Woods v. Sammissa Co., Ltd.29

In Lemon, which was decided shortly after the Supreme Court decided

Scindia but before Howlett was decided, a longshoreman was injured while

attempting to walk around defectively stowed cargo. A panel of this Court

reversed the district court’s direction of a verdict in favor of the shipowner, even
No. 07-40616

30 Lemon, 656 F.2d at 116. 

31 See Harris, 730 F.2d at 299–300. 

32 Woods, 873 F.2d at 852. 

13

though the defect was open and obvious. It is clear to us that Howlett

undermines the Court’s reasoning. For example, the Court stated: 

The Court[in Scindia] specifically imposed a duty on the shipowner

to at least warn the stevedore of any dangerous condition, existing

at the outset of the stevedoring operations, of which the shipowner

should have been aware through the exercise of reasonable care.30

In Harris, also decided before Howlett, we reversed a judgment based on

a directed verdict when the longshoreman unloading the vessel was injured

because of a defective cargo stow. Harris is based in part on the shipowner’s

active negligence in deciding not to use adequate dunnage to stabilize the cargo.

To the extent Harris follows the reasoning of Lemon,31 it is also undermined by

Howlett. 

In Woods, a longshoreman was injured due to an obviously defective cargo

stow. The panel, relying on Harris and Lemon in this pre-Howlett case, held

that the jury was entitled to find that the shipowner violated its general

turnover duty to provide a safe ship. The following summary of its holding

demonstrated that the court’s reasoning is also undermined by Howlett. 

All that is required [to impose liability on the vessel] is that the

injury that results from the failure to exercise due care be

reasonably foreseeable . . . and in this case a reasonable

owner/operator and time charterer would have perceived the

dangers presented by the overlapping condition of the cargo.32

Some time was required after the 1972 amendment to the LHWCA for the

law to develop with respect to the duty the shipowner owes the longshoreman

under § 905(b). The Supreme Court’s decision in Howlett was a major step in

that development. We are satisfied that our pre-Howlett decisions discussed
No. 07-40616

33 See, e.g., Moore v. M/V ANGELA, 353 F.3d 376, 380-81 (5th Cir. 2003) (imposing

liability under “no alternative” exceptionwhere longshoreman was killed due to malfunctioning

ship’s crane, where vessel owner had actual knowledge that the crane had been seriously

malfunctioning and where there was no practical alternative); Burchette v. Cargill, Inc., 48

F.3d 173, 178 (5th Cir. 1995) (imposing no liability under “no alternative” exception where

longshoreman was not required to climb on hatch with hazardous condition); Pimental v. LTD

Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992) (imposing no liability under “no

alternative” exception where oil and grease on deck could have been easily remedied by

longshoreman); Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 166-67 (5th Cir.

1990) (imposing liability under “no alternative” exception for slippery condition on main deck

where longshoreman had no alternative route); Harris, 730 F.2d at 299 (imposing liability

under “no alternative” exception where owner knew of and contributed to dangerous stow

condition by not ordering dunnage); Pluyer v. Mitsui O.S.K. Lines, Ltd., 664 F.2d 1243, 1244-

47 (5th Cir. 1982) (imposing liability under “no alternative” exception where plaintiff was

injured while using unsafe ship’s ladder furnished by the vessel); Martinez v. Korea Shipping

Corp., Ltd., 903 F.2d 606, 610-11 (9th Cir. 1990)(finding fact question existed as to whether

open and obvious unguarded ladder opening on lashing platform created unreasonably

dangerous condition). 

34 See Harris, 730 F.2d at 299. 

35 See also Clay, 74 F.Supp.2d 665, aff’d, 237 F.3d 631. 

14

above are undermined by the Supreme Court’s 1994 decision in Howlett and that

they do not control this case. 

Finally, Kirksey argues that he had no alternative but to unload the coils

or to leave the job. This is a narrow exception, which has no application here.

We have generally applied this exception where the dangerous condition existed

in the ship’s equipment or was otherwise created by the shipowner through its

negligence.33

The only case in which we have applied the “no alternative” exception to

a stow (rather than a defect in the ship’s equipment) is where the shipowner

controlled the manner and method of the stow and created the dangerous

condition.34 However, here, there is no evidence that the shipowner negligently

created the dangerous condition in the stow, and the exception, therefore, is

inapplicable.35 Imposing liability without fault on the shipowner under these

circumstances is inconsistent with the Congressional objectives of § 905(b) to 
No. 07-40616

36 Howlett, 512 U.S. at 101–02 (quoting Scindia, 451 U.S. at 172). 

15

“foreclose [the vessel’s] liability ‘based on a theory of unseaworthiness or nondelegable duty.’”36

III.

Because the defect in the cargo stow found by the district court was open

and obvious to the stevedore, the vessel had no turnover duty to warn against

the defect or to correct the unsafe condition. Consequently, the vessel has no

liability for breach of either the turnover duty to warn or to furnish a reasonably

safe ship. We therefore reverse the judgment in favor of the plaintiff and render

judgment in favor of defendants. 

REVERSED and RENDERED.