[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-10533

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D.C. Docket No. 1:18-cv-21586-UU

ANTHONY TROUTMAN, 

 Plaintiff-Appellant,

versus

SEABOARD ATLANTIC LTD.,

a foreign corporation,

SEABOARD MARINE, LTD., INC.,

a foreign corporation, and

M/V SEABOARD ATLANTIC,

One 456’ freight ship (IMO #9395563; Call Sign D5DC5),

in rem,

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 13, 2020)

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Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.

MARTIN, Circuit Judge:

Anthony Troutman was injured when he fell from a walkway on the upper 

deck of the ship where he was working as a longshoreman. He sued the ship and 

its owners (collectively, “Seaboard”), seeking to hold them liable under the 

Longshore and Harbor Workers’ Compensation Act (the “LHWCA”), 33 U.S.C. 

§ 901 et seq. Seaboard moved for summary judgment, arguing that the LHWCA 

does not permit Mr. Troutman’s negligence claim. The District Court granted 

Seaboard’s motion. It held that Mr. Troutman’s suit was barred because, among 

other reasons, the hazardous condition that led to his injury was open and obvious.

With the benefit of oral argument, we affirm.

I.

A. FACTUAL BACKGROUND

On April 22, 2016, Mr. Troutman was working for a stevedoring company 

named Eller ITO to secure containers being loaded onto the M/V Seaboard 

Atlantic (the “Vessel”). The Vessel is owned and chartered by Defendants 

Seaboard Atlantic Ltd. and Seaboard Marine Ltd. Prior to the incident, Mr. 

Troutman had been employed as a longshoreman for over 19 years.

This case centers around the cargo-loading process for two of the Vessel’s 

bays, Bay 28 and Bay 32. Bay 28 is raised above Bay 32. An elevated walkway 

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runs along the bottom of Bay 28, above Bay 32. Usually, cargo is loaded into the 

lower Bay 32 before Bay 28. When this happens, the cargo fills Bay 32 and the 

tops of the containers are higher than the walkway above. This alleviates the risk 

of falling off the walkway, since the person on the walkway is even with the tops 

of the cargo in Bay 32. However, when Bay 32 is empty, there is a six-to-eightfoot drop from the walkway to the deck.

Before April 22, 2016, Mr. Troutman had worked on the Vessel over 20

times. Sometimes when Mr. Troutman worked on the Vessel, the elevated 

walkway was protected by a rope fence. Other times, Mr. Troutman and other 

longshoremen had to ask Seaboard to put up the rope fence. When he worked on 

the Vessel, including on the day in question, Mr. Troutman worked as a lasher. A 

lasher works to secure, and to release securing mechanisms for, cargo being loaded 

onto the ship.

On the day of the incident, the superintendent of Eller ITO, Gilberto Perez, 

decided to load Bay 28 first because of a delay in readying the containers that were 

to be loaded into Bay 32. There was no rope fence protecting the walkway that 

day. Mr. Troutman and Mr. Perez both knew that the walkway was unsafe without 

the rope fence. Mr. Troutman also knew that he was not obligated to put himself 

in danger to perform his job, and that if a dangerous condition was present he was 

not required to work through it. Mr. Troutman did not ask Seaboard to put up the 

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rope fence that day. No party disputes that the walkway, in its exposed state, was 

an open and obvious hazard.

While Mr. Perez did direct that Bay 28 be loaded first, he did not instruct 

Mr. Troutman to start lashing the cargo on Bay 28. Had Mr. Troutman asked, Mr. 

Perez would have told him not to start lashing the cargo on Bay 28 until Bay 32 

was loaded. Mr. Perez also testified that Eller ITO would have provided Mr. 

Troutman with safety equipment to prevent him from falling if he asked for it.

Nevertheless, Mr. Troutman began to lash the cargo loaded into Bay 28 

before cargo had been loaded into Bay 32. While walking on the elevated 

walkway, he tripped on loose lashing materials left there by another longshoreman. 

He lost his balance and fell to the deck below. He was seriously injured and had to 

undergo surgery.

B. PROCEDURAL HISTORY

Mr. Troutman sued Seaboard, alleging it was negligent in breach of (1) the

duty to turn over a safe vessel to the stevedore company; (2) the duty to intervene; 

and (3) the duty to exercise ordinary care to keep the vessel in reasonably safe 

condition. Seaboard answered the complaint and the parties proceeded to 

discovery. Following discovery, Seaboard moved for summary judgment.

The District Court granted summary judgment for Seaboard on all of Mr. 

Troutman’s claims. Relevant to this appeal, the court held that Mr. Troutman 

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could not succeed on his first claim—breach of what is known as the LHWCA’s 

“turnover duty”—because the walkway was an open and obvious hazard which he 

could have avoided. Mr. Troutman timely appealed. His appeal challenges the 

grant of summary judgment on this basis alone.

II.

“We review de novo the district court’s grant of summary judgment, 

considering all of the evidence in the light most favorable to the nonmoving party.” 

Nesbitt v. Candler County, 945 F.3d 1355, 1357 (11th Cir. 2020). “Summary 

judgment is proper ‘if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56(a)).

III.

This appeal requires us to address a question of first impression in this 

circuit: when, if ever, a negligence claim for breach of the shipowner’s duty to turn 

over a vessel in safe condition properly lies where the plaintiff was injured by an 

open and obvious hazard. We conclude that, generally, a shipowner does not 

breach this duty when the injurious hazard was open and obvious and could have 

been avoided by a reasonably competent stevedore. Although this rule is not 

absolute, Mr. Troutman cannot show any exception to the rule that would deprive 

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Seaboard of an open-and-obvious defense here. We therefore affirm the District 

Court’s order granting summary judgment in favor of Seaboard.

A.

The LHWCA “establishes a comprehensive federal workers’ compensation 

program that provides longshoremen and their families with medical, disability, 

and survivor benefits for work-related injuries and death.” Howlett v. Birkdale 

Shipping Co., S.A., 512 U.S. 92, 96, 114 S. Ct. 2057, 2062 (1994). The statute

was amended in 1972 to permit a longshoreman to “seek damages in a third-party 

negligence action against the owner of the vessel on which he was injured.” Id.; 

see Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 

1972, Pub. L. No. 92-576, § 18(a), 86 Stat. 1251, 1263 (codified as amended at 33 

U.S.C. § 905(b)). It is this section of the LHWCA that governs Mr. Troutman’s 

claim for relief.

Under § 905(b), a shipowner owes the longshoreman three general duties: 

“(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.” Kirksey v. 

Tonghai Mar., 535 F.3d 388, 391 (5th Cir. 2008) (citing, inter alia, Howlett, 512 

U.S. at 98, 114 S. Ct. at 2063); see Scindia Steam Nav. Co. v. De Los Santos, 451 

U.S. 156, 167–68, 101 S. Ct. 1614, 1622–23 (1981). The 1972 amendments to the 

LHWCA also abrogated the shipowner’s common-law defenses of assumption of 

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the risk and contributory negligence. Kirsch v. Plovidba, 971 F.2d 1026, 1031 n.6 

(3d Cir. 1992) (citing Scindia, 451 U.S. at 165 n.13, 101 S. Ct. at 1621 n.13).

A shipowner’s turnover duty consists of two corresponding duties. First,

under the “duty of safe condition,” the shipowner must exercise “ordinary care 

under the circumstances to have the ship and its equipment in such condition that 

an expert and experienced stevedore will be able by the exercise of reasonable care 

to carry on its cargo operations with reasonable safety to persons and property.”1

Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204, 1207 (9th Cir. 1989) 

(quoting Scindia, 451 U.S. at 167, 101 S. Ct. at 1622); see Roach v. M/V Aqua 

Grace, 857 F.2d 1575, 1581 (11th Cir. 1988) (“[A] shipowner must turn over the 

ship and its equipment in a condition that permits a stevedore to do its work with 

reasonable safety . . . .”). Second, the shipowner has a “duty to warn” the 

longshoreman “of any hidden dangers of which [the shipowner] knows or should 

know.” Roach, 857 F.2d at 1581; see Howlett, 512 U.S. at 98–99, 114 S. Ct. at 

2063. The duty to warn is a “corollary” to the duty of safe condition. Howlett, 

512 U.S. at 98, 114 S. Ct. at 2063.

1 Although the turnover duty of safe condition is framed in terms of danger to the 

stevedore—the longshoreman’s employer—“the focus of the factual inquiry is frequently 

directed at [whether] experienced longshore workers” could complete their work with reasonable 

safety. See Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270 n.4 (9th Cir. 1994)

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B.

The District Court granted summary judgment for Seaboard on both aspects 

of the turnover duty. The court held that Seaboard did not breach the duty of safe 

condition because “an expert and experienced stevedore could have loaded the 

Vessel with ‘reasonable safety’ by loading the lower deck first or . . . by staying off 

the walkway until after the lower deck was loaded.” Troutman v. Seaboard Atl. 

Ltd., No. 1:18-cv-21586-UU, 2019 WL 656259, at *4 (S.D. Fla. Jan. 8, 2019). The 

court also held that Seaboard did not breach the duty to warn because “[t]he 

undisputed facts show that the hazard posed by the exposed walkway was open and 

obvious to the stevedore.” Id. On appeal, Mr. Troutman argues the District Court 

erred by granting Seaboard an open-and-obvious defense to its turnover duty of 

safe condition.

Under the LHWCA, the stevedoring company and the longshoreman have 

primary responsibility for avoiding hazards they should have anticipated. The

LHWCA assumes the ability of “an expert and experienced stevedoring contractor, 

mindful of the dangers he should reasonably expect to encounter, . . . to carry on 

cargo operations with reasonable safety to persons and property.” Howlett, 512 

U.S. at 98, 114 S. Ct. at 2063 (quotation marks omitted). The shipowner does not 

have a duty “to turn over an absolutely safe vessel; the shipowner need only 

exercise reasonable care.” 1 Thomas J. Schoenbaum, Admiralty & Maritime Law

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§ 7:14, at 708 (6th ed. 2018). Where a hazard exists, the question of negligence 

boils down to whether “an expert and experienced stevedore”—rather than an 

“unskilled person[]”—could safely avoid the hazard. Bjaranson, 873 F.2d at 1208. 

Generally, shipowners have “a rightful expectation” that a stevedoring company 

will “perform [its] task properly without supervision by the ship” and that the

stevedore will “avoid exposing the longshoremen to unreasonable hazards.” 

Scindia, 451 U.S. at 170, 101 S. Ct. at 1623–24; see id. at 180 (Powell, J., 

concurring) (stating that, under the majority opinion in Scindia, the “primary 

burden . . . for avoiding injuries caused by obvious hazards” is placed “on the 

stevedore”).

We read this precedent to establish a general rule that the open-and-obvious 

defense applies to breach of the turnover duty of safe condition. This squares with 

the Supreme Court’s pronouncements in Scindia and Howlett. A longshoreman 

can only be said to have carried out his work with “reasonable competence” if he 

“identif[ied] and cope[d] with defects” of which he was aware.2

 Howlett, 512 U.S. 

at 104, 114 S. Ct. at 2066; Scindia, 451 U.S. at 172, 101 S. Ct. at 1624. Although 

2 To the extent that our pre-Howlett case law—in particular, Lemon v. Bank Lines, Ltd., 

656 F.2d 110 (5th Cir. Sept. 1981)—suggests that a shipowner breaches the duty of safe 

condition by turning over a ship with an open and obvious hazard, we agree with the current-day 

Fifth Circuit that these cases have been “undermine[d]” by Howlett. See Kirksey, 535 F.3d at 

395–96; see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) 

(adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the 

close of business on September 30, 1981).

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the Supreme Court’s articulation of what it means to act as a reasonable 

longshoreman came in the context of the duty to warn, see Howlett, 512 U.S. at 

99–100, 101 S. Ct. at 2064, this reasoning applies with equal force to the 

shipowner’s defense “against a claim based on the general failure to provide a safe 

ship based on defects in the stow.” See Kirksey, 535 F.3d at 393–94; see also

Howlett, 512 U.S. at 102, 114 S. Ct. at 2065 (applying principles “taken from 

[Scindia’s] examination of the . . . duty to intervene” to analysis of the turnover 

duty). In contrast, Mr. Troutman’s preferred rule—that a shipowner violates the 

duty of safe condition by turning over a ship with any hazard, no matter how 

obvious or avoidable—would violate several principles established in this area of 

law. For example, shipowners could no longer rely on the expertise and 

experience of the stevedoring company or longshoremen to deal with hazards that 

may arise. In addition, Mr. Troutman’s rule would effectively require shipowners 

to turn over an absolutely safe vessel, a duty which the LHWCA does not impose. 

We thus conclude that the open and obvious nature of the exposed walkway is 

relevant to whether Seaboard violated its turnover duty of safe condition.

Mr. Troutman says the defense does not apply in this case because the 

walkway was inherently unsafe, comparing it to a hypothetical situation in which 

Seaboard allowed tigers to prowl the Vessel’s deck. See Oral Argument Recording 

at 5:45–6:03. Mr. Troutman’s analogy misses the mark because it would hardly be 

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reasonable for Seaboard to expect him to carry out his duties with safety if 

dangerous animals were roaming the ship. Here, by contrast, it is undisputed that 

Mr. Troutman could have waited to use the walkway until after Bay 32 was loaded 

with cargo, thereby avoiding the hazard. As a result, the general rule applies in 

this case.

Finally, Mr. Troutman says that affirming the District Court in his case 

cannot be squared with Congress’s abrogation of the shipowner’s defenses of 

assumption of the risk and contributory negligence. This argument misunderstands

whose negligence is at issue in this appeal. We do not hold that Mr. Troutman is 

barred from recovery because he acted negligently by crossing the walkway. 

Rather, we hold that, based on the undisputed facts of this case, Seaboard did not 

act negligently. As we have explained, Seaboard was entitled to rely on the

“expertise in cargo operations” of Mr. Troutman and his employer. See Kirsch, 

971 F.2d at 1031 n.6. Because “an ‘expert and experienced stevedore’ acting with 

‘reasonable care’” would have been able to avoid the walkway, Seaboard was not 

negligent in allowing the walkway to exist in its exposed state. See Morris v. 

Compagnie Mar. Des Chargeurs Reunis, S.A., 832 F.2d 67, 71 (5th Cir. 1987) 

(quoting Scindia, 451 U.S. at 168, 101 S. Ct. at 1622).

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IV.

The exposed walkway was an open and obvious hazard that Mr. Troutman 

could have avoided with the exercise of reasonable care. For this reason, the 

District Court properly dismissed Mr. Troutman’s claim for negligence under the 

LHWCA.

AFFIRMED.

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