PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1888

RICHARD BUNN,

Plaintiff - Appellee,

v.

OLDENDORFF CARRIERS GMBH & CO. KG,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William M. Nickerson, Senior District 

Judge. (1:10-cv-00255-WMN)

Argued: May 16, 2013 Decided: July 17, 2013

Before MOTZ, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Davis wrote the majority 

opinion, in which Judge Wynn joined. Judge Motz wrote a 

dissenting opinion.

ARGUED: Geoffrey S. Tobias, OBER, KALER, GRIMES & SHRIVER, 

Baltimore, Maryland, for Appellant. Bernard Jerome Sevel, 

ARNOLD, SEVEL & GAY, P.A., Towson, Maryland, for Appellee. ON 

BRIEF: Jack R. Daley, OBER, KALER, GRIMES & SHRIVER, Baltimore, 

Maryland, for Appellant. Gerald F. Gay, ARNOLD, SEVEL & GAY, 

P.A., Towson, Maryland, for Appellee.
2

DAVIS, Circuit Judge:

Defendant-Appellant Oldendorff Carriers GmbH & Co. KG 

(“Oldendorff”) appeals from a judgment entered on a jury verdict 

under § 5(b) of the Longshore and Harbor Workers’ Compensation 

Act, 33 U.S.C. § 905(b) (the “Act”). The claim arose when the 

longshoreman, Plaintiff-Appellee Richard Bunn, slipped and fell 

on Oldendorff’s ship, the CHRISTOFFER OLDENDORFF (“the ship”), 

during loading operations in the Baltimore port. For the 

following reasons, we reject Oldendorff’s challenges and affirm

the judgment.

I.

Bunn, who worked for the stevedore, CNX Marine Terminals, 

Inc. (“CNX”), slipped on ice and injured himself while loading 

coal onto the ship, a bulk carrier, on February 16, 2007. We set 

forth the facts in the light most favorable to Bunn, the 

prevailing party at trial.

CNX shift supervisor Joseph White boarded the ship around 7 

p.m. on February 15, 2007, to tell chief officer Andriy Fediv 

that CNX employees intended “to start[] loading that night.” 

J.A. 113–14. Although the ship had been docked “a few days,” CNX 

had been “unable to load [the] vessel” because of “some winter 

weather.” Id. at 113. When White boarded the ship, “[he] noticed 

that . . . there was ice covered throughout the ship, with the 

exception of . . . a pathway back from the gangway to the 
3

deckhouse.” Id. at 114. White “instructed” Fediv, “[W]e need a 

clear path to the holds to be able to load this vessel.” Id.

Fediv, who knew “which hatches [the CNX employees] were going to 

be [loading],” responded “[t]hat [the ship’s crew] would salt 

and sand between the holds.” Id. at 115–16.1

Based on this conversation, White told longshoreman 

Christopher Moxey (before the loading operation started) that 

the ship’s crew was “going to treat the ship and make sure it 

was safe” by “[s]alt[ing] it, sand[ing] it, [and] shovel[ing] 

it.” J.A. 86–88. Hours later, when Moxey and Bunn walked onto 

the ship, they found the area between the gangway and the 

deckhouse, and between the starboard rail and hatch number five, 

“[p]erfectly clear” of ice. Id. at 88–89.

Meanwhile, Bunn had arrived at the terminal at 6 p.m. on 

February 15, 2007, and began his 12-hour shift an hour later. 

His job was “to clean the terminal and to spread salt, and to go 

around and make sure all the equipment . . . was . . . . fueled 

and running . . . .” J.A. 223. Sometime between midnight and 1 

a.m. on February 16, 2007, White approached Bunn to discuss 

loading the ship. Id. at 30, 224. Specifically, White instructed 

 1 Fediv, the chief officer, testified that the ship’s deck 

was icy but he denied that he and White discussed using salt and 

sand to treat the ice. Of course, the jury was entitled to 

reject Fediv’s testimony and credit White’s, as it did.
4

Bunn to work onboard the ship during the night to assist Moxey 

in the loading operation. Bunn asked:

well, you want me to go now? [White] said no, take 

your time, finish lunch. He said they’re getting the 

ship ready and we’re still finishing up getting the 

terminal ready.

Id. at 224–25. White told Bunn he would call him or Moxey by 

radio when the ship was safe to load. Id. at 225.

In due course, Bunn and Moxey “had the instruction that it 

was okay to go up on the ship, the ship was ready,” and the two 

boarded the ship around 1:30 a.m. on February 16, 2007. J.A. 

177–78. Bunn testified:

When we first got up on [the] deck, we could see a 

clear path to the number five hatch, and looking 

towards the deckhouse, you could see there was a path 

made to the deckhouse.

Id. at 178. Bunn and Moxey began loading coal into the number 

five hatch. Id. at 178. During the loading process, coal moves 

from a silo to a ship loader, id. at 121, “a giant crane that 

hangs over the ship,” id. at 179.

It has a boom with a conveyor belt on it that carries 

the coal. At the end of the boom, it has a spoon that 

comes down that goes in the hold. It has a spoon that 

rotates, and that directs the coal.

Id. at 179. Bunn’s job was to be on the ship and help guide the 

coal as it was loaded into the holds.

Being that the ship loader operator is up in the air, 

and he sits on one side of the machine, he can’t see 

exactly what we can see when we’re close to the hold. 

So in order to keep everything safe, we have to watch 
5

his equipment, that he doesn’t hit the hatch cover, 

and also direct him on where’s the proper places to 

put the coal . . . . [T]he only way I see it is if I 

lean forward over the hold, I can see down in there 

how the coal is building up. 

Id. at 179–80.

After loading the number five hatch, Bunn told Moxey to 

warm himself in the deckhouse; Bunn walked forward to load the 

number three hatch, “holding onto the hand rail on the side of 

the ship,” J.A. 180–82, whereupon the accident occurred: 

It was nighttime. It’s not much lighting when you get 

further past the beginning of the ship. At the 

beginning of the ship, the deckhouse has lights. But 

as you get down, the lighting is very poor.

* * *

Well, I remember coming off the path, and it felt like 

I stepped up a little bit. I could tell my surface 

changed a little.

I took a couple steps, and the next thing I knew, I 

had slipped and fell right then, boom; but I caught 

myself with my knees and my hands when I fell.

* * *

Well, then I realized that I kind of hurt myself, so I 

took my time. Then I figured well, maybe I’m just on a 

patch of ice that I didn’t see and maybe I need to 

find where this path is.

So I stood up and I said I’m going to slowly walk, 

take little steps toward the hold. I still needed to 

get to the hold . . . . So I started to walk towards 

the hold, and no more than one, two steps and boom. My 

feet came out from underneath of me and I landed on my 

back and my elbow.

Id. at 182–84.
6

After Bunn’s fall, Moxey told chief officer Fediv that “the 

ship was icy forward” and that it needed to be salted. J.A. 90.

Fediv responded that “he only had a limited supply of salt.” Id.

at 91. About a half hour later, Moxey loaded coal into hatch 

number seven. Id. at 92. When he returned to hatch number three, 

he “noticed that it was still icy.” Id.

At the close of Bunn’s case, and again at the conclusion of 

all the evidence, Oldendorff moved for judgment as a matter of 

law.2 The company argued (as it had in seeking summary judgment 

earlier) that it owed no duty under the Act to warn of the open 

and obvious danger posed by the presence of ice in the areas 

where the longshoremen would be working. The district court 

denied the motions, reasoning that “liability can attach to [a] 

ship owner” that “voluntarily and affirmatively undertakes to 

remedy an [otherwise open and obvious] unsafe condition, but 

fails to do so.” Bunn v. Oldendorff Carriers GmbH & Co. K.G., 

No. WMN-10-255, 2012 WL 2681412, at *1 (D. Md. July 5, 2012). 

The court noted that, based on White’s testimony, the jury could 

conclude that the ship--on the unquestioned authority to do so 

 2 See Mot. for J. as a Matter of Law 2, ECF No. 86, Bunn v. 

Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-WMN (D. 

Md. May 10, 2012). The joint appendix includes neither a 

complete trial transcript nor excerpts of the oral motions and 

the district court’s reasons for denying them. Accordingly, we 

infer that information from the court’s memorandum opinion 

denying Oldendorff’s post-trial motion for judgment as a matter 

of law.
7

of the chief officer, Fediv--had “voluntarily assumed the 

responsibility for salting and sanding the ice in the places 

where he knew CNX personnel would be working.” Id. at *2. 

The district court also declined to give the following jury 

instruction, requested by Oldendorff:

In the absence of any agreement, the ship is not 

responsible for any open and obvious condition.

J.A. 84. The court instructed the jury as follows:

The plaintiff’s claims in this case are governed by 

the law that is set out in what we know as the 

Longshoreman and Harbor Workers Act. In accord with 

the law, your basic determination in this case is 

going to be to decide whether negligence on the part 

of the operator of the vessel CHRISTOPHER OLDENDORFF 

caused or directly contributed to the plaintiff’s 

accident on or about February 16, 2007, and the 

damages claimed to have resulted from that occurrence 

. . . . 

* * * 

Negligence, simply stated, is the failure to exercise 

reasonable care under the existing circumstances.

But once the loading or the unloading of a ship by a 

stevedoring company has begun, the responsibility for 

safe working conditions is generally the burden of the 

terminal or the stevedoring company, in this case, CNX 

Marine Terminal. A shipowner, Oldendorff Carriers in 

this case, will only be responsible or liable for 

injury resulting directly from an unsafe condition on 

the ship of which it was aware and which it 

voluntarily agreed and undertook to remedy, but failed 

to do so.

Id. at 385–87. 

The jury found Oldendorff negligent and calculated

$1,863,750 in pecuniary and non-pecuniary damages. J.A. 406–07. 
8

The jury further found, however, that Bunn was also negligent, 

and that he was 15 percent at fault for the accident. Id.

Oldendorff renewed its motion for judgment as a matter of 

law and moved alternatively for a new trial, arguing that the 

court had erred in refusing to give an instruction on the “open 

and obvious” defense. Mot. for J. as a Matter of Law 17, Docket 

No. 86, Bunn, No. 1:10-cv-00255-WMN (D. Md. May 10, 2012). The 

court denied the post-trial motions, and this timely appeal 

followed.

II.

Oldendorff raises two principal assignments of error. 

First, Oldendorff argues that the district court erred in 

denying the motions for judgment as a matter of law. Second, 

Oldendorff argues that the district court misinformed the jury 

about the applicable law, and therefore erred in denying the 

motion for new trial. We discern no reversible error.3

 3 Oldendorff also argues that the district court erred in 

denying its motion for summary judgment made at the conclusion 

of discovery because, as a matter of law, the icy condition of 

the ship was open and obvious, and therefore Oldendorff had no 

duty to warn of the danger (the same argument made at and after 

trial). Although neither party has addressed the propriety of 

Oldendorff’s purported appeal of the summary judgment ruling, it 

is well settled that we “‘will not review, under any standard, 

the pretrial denial of a motion for summary judgment after a 

full trial and final judgment on the merits.’” Varghese v. 

Honeywell Int’l, Inc., 424 F.3d 411, 421 (4th Cir. 2005) 

(quoting Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g 

(Continued)
9

A.

Oldendorff first argues that the district court erred in 

denying its motions for judgment as a matter of law because 

“[t]he open and obvious nature of the icy deck was established 

beyond dispute,” and Oldendorff had “a responsibility to warn 

only of hidden dangers.” Opening Br. 8, 17.4 Those assertions are 

correct statements of the law, as far as they go. The problem 

for Oldendorff is that its liability does not depend on the duty 

to warn; rather, as the district court repeatedly (and 

correctly) indicated, this is a simple case of primary 

negligence.

1.

Section 5(b) of the Act permits a longshoreman to “seek 

damages in a third-party negligence action against the owner of 

the vessel on which he was injured.” Howlett v. Birkdale 

 

Corp., 51 F.3d 1229, 1237 (4th Cir. 1995)). There is no reason 

to deviate from that rule here.

4 Our applicable standard of review in these circumstances 

is well-settled:

We review the denial of a Rule 50(b) motion de 

novo, viewing the evidence in the light most favorable 

to the prevailing party, and will affirm the denial of 

such a motion unless the jury lacked a legally 

sufficient evidentiary basis for its verdict. First 

Union Commercial Corp. v. GATX Capital Corp., 411 F.3d 

551, 556 (4th Cir. 2005).

Gregg v. Ham, 678 F.3d 333, 341 (4th Cir. 2012). 
10

Shipping Co., S.A., 512 U.S. 92, 96 (1994). The Act does not, 

however, “specify the acts or omissions of the vessel that . . .

constitute negligence”; rather, “the contours of a vessel’s duty 

to longshoremen [have been] . . . resolved through the 

application of accepted principles of tort law and the ordinary 

process of litigation.” Howlett, 512 U.S. at 97–98 (internal 

quotation marks omitted). In Scindia Steam Navigation Co., Ltd. 

v. De Los Santos (“Scindia”), the Supreme Court “outlined the 

three general duties shipowners owe to longshoremen.” Id. at 98 

(citing Scindia, 451 U.S. 156 (1981)). 

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.

Id. (internal citations omitted) (citing Scindia, 451 U.S. at 

167–78). Here, only the turnover duty is at issue. 

“The turnover duty has two components.” Lincoln v. Reksten 

Mgmt., 354 F.3d 262, 266 (4th Cir. 2003). 

The first involves the shipowner’s duty with respect 

to the ship’s gear, equipment, tools, and work space 

that the stevedore will utilize during its operations. 

The shipowner must “at least [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 
11

reasonable care to carry on its cargo operations with 

reasonable safety to persons and property.” 

Id. (alteration in original) (emphasis added) (quoting Scindia, 

451 U.S. at 166–67). “As a corollary to this initial turnover 

duty,” the shipowner must 

warn the stevedore of any hazards on the ship or 

with respect to its equipment that are known to the 

vessel or should be known to it in the exercise of 

reasonable care, that would likely be encountered by 

the stevedore in the course of his cargo operations

and that are not known by the stevedore and would 

not be obvious to or anticipated by him if 

reasonably competent in the performance of his work.

Id. (emphasis added) (quoting Scindia, 451 U.S. at 167). “The 

duty to warn attaches only to latent hazards,” id. (quoting 

Howlett, 512 U.S. at 99–100); “[i]f a defect is open and obvious 

and the stevedore should be able to conduct its operations 

around it safely, the shipowner does not violate the duty to 

warn,” id.

In denying Oldendorff judgment as a matter of law, the 

district court reasoned that “[t]he validity of [the] [open and 

obvious] rule or its applicability to ice on the deck under 

general circumstances [was] never . . . in dispute.” Bunn, 2012 

WL 2681412, at *2 (emphasis added).

What was in dispute was whether Fediv voluntarily 

assumed the responsibility for salting and sanding the 

ice in the places where he knew CNX personnel would be 

working.
12

Id. The court further reasoned that, “while ice on the deck may 

[have] be[en] open and obvious, it was not obvious that the ship 

owner would promise to take care of the hazard, and then not do 

so.” Id.

[W]hen a ship owner voluntarily and affirmatively 

undertakes to remedy an unsafe condition, but fails to 

do so, liability can attach to the ship owner . . . . 

Thus, there was no question that the central 

determination regarding liability to be reached at 

trial was whether Fediv had promised to clear those 

portions of the deck where those unloading the vessel 

would need to traverse.

Id. at *1. Because the jury could reasonably credit White’s 

testimony that Fediv had promised to treat ice leading to and 

around the cargo holds, the court concluded that the jury could 

reasonably find Oldendorff liable for affirmatively undertaking, 

and failing, to remedy the unsafe condition. Id. at *2 & n.1.

That is, the jury could reasonably find Oldendorff liable for 

simple negligence.

2.

We find no error in the district court’s reasoning. Several 

other circuits have long held that a shipowner may be liable 

under the Act for promising, yet failing, to remedy a dangerous 

condition that injures a longshoreman. See Lieggi v. Maritime 

Co. of the Philippines, 667 F.2d 324, 325–26, 329 (2d Cir. 1981)

(affirming a judgment against a shipowner whose agent had 

“affirmatively undert[aken],” but failed, to remove wire and 
13

grease spots that caused a longshoreman’s injuries because, “by 

making this affirmative undertaking, the owner [had] eliminated 

any possible reasonable basis for relying on the stevedore to 

correct the hazardous condition”); Bueno v. United States, 687 

F.2d 318, 320–21 (9th Cir. 1983) (finding that a shipowner may 

be liable for a longshoreman’s injury aboard the ship when it 

“voluntarily undert[akes] to check the safety of the vessel on a 

regular basis”); Webster v. M/V Moolchand, Sethia Liners, Ltd., 

730 F.2d 1035, 1037–38 (5th Cir. 1984) (affirming a jury’s 

finding of liability against a shipowner because “there was 

evidence that the winch [that injured the longshoreman] was not 

operating properly, that this was brought to the crew’s 

attention, and that their repair efforts failed”).5

Holding a shipowner liable for promising, but failing, to 

remedy a dangerous condition comports with “accepted principles 

of tort law,” which inform a shipowner’s duties under the Act. 

 5 Although some scholars view the relevant duty in Lieggi

and Webster as one of active involvement, not turnover, see 1 

Thomas J. Schoenbaum & Jessica L. McClellan, Schoenbaum’s 

Admiralty & Maritime Law § 7-10 (5th ed. 2012); Kenneth G. 

Engerrand & Jonathan A. Tweedy, A Tedious Balance: Third Party 

Claims Under the Longshore and Harbor Workers’ Compensation Act, 

10 Loy. Mar. L.J. 1, 20 (2011), the Supreme Court has found that 

the general principles supporting one duty under the Act may 

apply to other duties, as well, Howlett, 512 U.S. at 102. For 

the reasons given in text, we can discern no good reason to 

limit liability arising from a shipowner’s breach of a promise 

to correct a dangerous condition, even one that is otherwise 

“open and obvious,” to the “active involvement” rubric.
14

Howlett, 512 U.S. at 97–98.6 These principles include the general 

rule that “undertakings can create a duty of care.” Dan B. 

Dobbs, Paul T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts § 

410 (2d ed. 2012) (noting that “one who voluntarily assumes a 

duty must then perform that duty with reasonable care”). “An 

undertaking in this sense is a kind of explicit or implicit 

promise, or at least a commitment, conveyed in words or in 

conduct.” Id. (footnote omitted). 

The general rule is that the defendant is under a duty 

to perform undertakings made for safety purposes and 

is liable for physical harm he causes the plaintiff by 

negligently performing or quitting performance once it 

has begun. 

Id. at § 411. Accord Dalldorf v. Higgerson-Buchanan, Inc., 402 

F.2d 419, 422 (4th Cir. 1968) (“[A]nyone who does an affirmative 

act is under a duty to others to exercise the care of a 

reasonable man to protect them against an unreasonable risk of 

harm to them arising out of the act.”) (internal quotation marks 

omitted). Because the credible evidence showed that Fediv 

promised to treat the ice but failed to do so, the jury 

reasonably concluded that Fediv had failed to exercise due care.

Holding a shipowner liable for promising, yet failing, to 

remedy a hazard also comports with a well-settled principle of

 6 Notably, Bunn’s complaint alleged negligence for both 

failing to warn of the untreated ice, and for promising yet 

failing to treat the ice in the first place. See J.A. 13–14 

(Compl. ¶¶ 10, 12).
15

the turnover duty: the scope of that duty depends on the 

circumstances of each particular case. See Lincoln, 354 F.3d at 

266 (noting that a shipowner must exercise ordinary care “under 

the circumstances to have the ship” in a reasonably safe 

condition) (emphasis added). When the circumstances include a 

promise to remedy a dangerous situation, the shipowner may fail 

to exercise reasonable care if it does not fulfill its promise.7

Here, the evidence viewed in the light most favorable to Bunn 

established that Fediv promised to treat the ice, and failed to 

do so (perhaps because he “had a limited supply of salt,” see

supra, at 6). These circumstances provide a legally sufficient 

evidentiary basis for holding Oldendorff liable for Bunn’s 

injuries.

3.

Apart from the fact that the jury verdict permissibly 

rested on a finding of simple negligence, Oldendorff’s argument

 7 Our colleague in dissent insists that when the 

circumstances include an open and obvious hazard, the shipowner 

“has a diminished turnover duty of safe condition.” Post, at 35

(citing cases from outside the Fourth Circuit). For the reasons 

stated infra in Part II.A.3, however, the untreated ice was 

neither open nor obvious. Moreover, in none of the cases cited 

by the dissent did the shipowner expressly promise, and fail, to 

remedy the hazardous condition. See, e.g., Pimental v. LTD Can. 

Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992) (observing that the 

plaintiff had “offered no proof that the[] [hazardous] 

conditions were reported to the vessel crew”), cited post, at 

35.
16

that the ice was “open and obvious” conveniently overlooks the 

fact that the presence of untreated ice was assuredly not “open 

and obvious,” and betrays the company’s misplaced, narrow view 

of the turnover duty.8 That a shipowner generally need not warn 

of open and obvious dangers does not negate the shipowner’s duty 

to exercise ordinary care under the circumstances to ensure that

the ship is in a reasonably safe condition. Lincoln, 354 F.3d at

266 (quoting Scindia, 451 U.S. at 166–67). After all, the duty 

to warn is a mere corollary to the turnover duty, not the sole 

manner of measuring the reasonableness of a shipowner’s actions 

upon turnover. See id. (quoting Scindia, 451 U.S. at 167). In 

other words, failure to warn of a latent hazard is but one way a 

shipowner may violate its turnover duty; promising, but failing, 

 8 Contrary to our dissenting colleague’s assertion, Bunn did 

not concede that the untreated ice that he encountered near 

hatch number three was open and obvious. See post, at 40. 

Although Bunn asserted in his appellate brief that “the icecovered condition of the deck was open and obvious,” Resp. Br. 

18 (emphasis added), he maintained that, following Fediv’s 

promise, “the lack of treatment with sand and salt of the ice in 

the darkened area where [he] was obliged to work”--i.e., the 

area near hatch number three--“was not open and obvious,” id.

(emphasis added). See also Opp’n to Mot. for Summ. J, Bunn v. 

Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-WMN (D. 

Md. Nov. 18, 2010), ECF No. 27, at 6 (“With the assurance by the

chief officer that he would make the slippery condition safe, 

the slippery condition that continued to exist because of the 

failure on the part of [Oldendorff] to correct same as promised 

was no longer open and obvious . . . . [U]ntil [Bunn] fell, the 

fact that [the slippery condition] had not been made safe was 

neither open nor obvious to [CNX].”).
17

to remedy a dangerous condition may also establish a shipowner’s 

failure to exercise ordinary care. 

In any case, imposing liability on a shipowner that 

promises, but fails, to remedy a dangerous condition, and then 

fails to warn of its own failure, is not inconsistent with our 

prior cases on the open and obvious rule. Although a shipowner 

need not warn of hazards that would be “obvious to or 

anticipated” by a stevedore, Lincoln, 354 F.3d at 266 (quoting 

Scindia, 451 U.S. at 166–67), a reasonably competent stevedore 

has no reason to anticipate a hazard that the shipowner has 

promised to remedy but fails, without warning, to do so.9 Here, 

for instance, the evidence viewed in the light most favorable to 

 9 The dissent asserts that “a shipowner can reasonably rely 

on an expert and experienced stevedore and its expert 

longshoremen to notice and avoid an open and obvious hazard,” 

regardless of the shipowner’s “pre-turnover promise” to remedy 

the hazard. Post, at 38–39. That may well be true when the 

hazard remains open and obvious despite the unfulfilled promise 

to remove it--imagine, for instance, a longshoreman encountering 

a large oil slick in bright sunlight--but that is not the case 

here. Common experience tells us that, unlike a brightly-lit oil 

slick, ice may not be immediately visible, especially in the 

dark. And viewing the evidence in the light most favorable to 

Bunn, the untreated ice he encountered was neither open nor 

obvious. Bunn discovered the ice--at night, in a poorly lit 

area--only after taking the few steps that led to his fall. 

Moreover, because Fediv knew where the CNX employees would be 

working and had promised more than five hours before they 

commenced work to treat the ice with salt and sand, Bunn had no 

reason to anticipate a slippery surface near the number three 

hatch. Thus, the untreated ice was a latent hazard. See, e.g., 

Lincoln, 354 at 266 (describing latent hazards as those that 

“would not be . . . anticipated by” a longshoreman) (emphasis 

added) (quoting Scindia, 451 U.S. at 167). 
18

Bunn established that Fediv promised to treat the ice; 

accordingly, a jury could find that neither CNX (the stevedore) 

nor Bunn (the longshoreman) had reason to anticipate untreated 

ice aboard the ship, even though one might otherwise have 

expected such a hazard following a winter storm.10

We are not persuaded by Oldendorff’s argument that, 

regardless of Fediv’s promise to treat the ice, the untreated 

ice remained an open and obvious condition as a matter of law,

absolving it of liability, even without Fediv communicating the 

presence of the untreated ice to the stevedore.11 

 10 Indeed, several witnesses testified that shipowners 

generally bear responsibility for removing ice. See, e.g., Kevin 

Palmer Test., J.A. 146 (testifying that “[it] would be usual” 

for a ship’s crew to “be scraping the ice off their deck”); 

White Test., J.A. 115 (“It’s [the chief mate’s] responsibility, 

the vessel’s responsibility to clear [the ship], to make it safe 

for stevedores[,] of the ice and the other debris that could be 

up there.”).

11 It is readily apparent in its briefs and oral argument 

that Oldendorff feels itself hemmed in by its inability to lay 

much (if not all) of the blame for Bunn’s injury on his 

employer, CNX. There is some force to Oldendorff’s 

understandable chagrin in this regard. Although Fediv promised 

to make the work areas safe for the longshoremen loading the 

coal, White, the CNX shift supervisor, apparently never 

reboarded the ship to confirm that Fediv had done so before 

ordering his workers, Bunn and Moxey, to commence operations. 

But Congress has denied Oldendorff the opportunity it desires. 

See Howlett, 512 U.S. at 97:

Section 5(b) also eliminated the stevedore’s 

obligation, imposed by Ryan Stevedoring Co. v. PanAtlantic S.S. Corp., 350 U.S. 124 (1956), to indemnify 

a shipowner, if held liable to a longshoreman, for 

(Continued)
19

Moreover, a shipowner is absolved of its duty to warn only 

if the condition is both open and obvious and the stevedore’s 

employee is “able to conduct . . . operations around [the 

hazard] safely.” Lincoln, 354 F.3d at 266 (citing Bonds v. 

Mortensen & Lange, 717 F.2d 123, 127-28 (4th Cir. 1983)).12 The 

 

breach of the stevedore’s express or implied warranty 

to conduct cargo operations with reasonable safety.

Furthermore, even assuming that Bunn indicated on deposition or 

otherwise that he expects his employer to furnish a safe place 

to work, such testimony does not absolve the shipowner of the 

consequences of its direct primary negligence.

Of course, a longshoreman’s own negligence, as opposed to 

the negligence of his stevedore employer, may reduce a 

shipowner’s liability. And indeed, as mentioned in text, the 

jury here found Bunn 15 percent at fault for his injuries. 

Although Bunn testified that he “noticed [a] pathway” that had 

been cleared of ice, and “glance[d] around and [saw] ice in 

other areas,” J.A. 226, this testimony does not establish beyond 

dispute that he knew--before he fell and was injured--that the 

ice near the number three hatch remained untreated. Indeed, Bunn 

also testified that he fell almost immediately upon walking 

toward the hold, see id. at 183 (testifying that he took only “a 

couple steps, and the next thing [he] knew, [he] had slipped and 

f[allen] right then, boom”). On this record, therefore, even had 

we been asked to examine the issue (and we have not been asked) 

we can discern no infirmity in the jury’s allocation of fault.

12 In Bonds, we held that the shipowner owed no duty to 

intervene and stop discharging operations despite a gantry 

crane’s malfunctioning bell, which failed to ring “when the 

gantry move[d] forward or backward to warn longshoremen and the 

ship’s crew of the gantry’s motion.” Bonds, 717 F.2d at 124. We 

reasoned that the stevedore and longshoremen “were aware that 

the bell was not functioning properly” and had not complained; 

“the malfunctioning bell and ship’s design being obvious and 

known to all, the shipowner was entitled to rely on [the 

stevedore’s] judgment as to whether discharge operations could 

(Continued)
20

evidence, viewed in the light most favorable to Bunn, showed 

that Oldendorff breached its duty to warn of the ice near the 

number three hatch because it was impossible for Bunn to safely 

navigate around the untreated ice to perform the cargo loading 

operations. See, e.g., J.A. 92 (Moxey’s testimony that the area 

around hatch number three was so “icy” that it was “unsafe” to 

complete operations).13

 

safely be undertaken.” Id. at 124, 127–28 & n.4 (emphasis 

added). The reasoning of Bonds is inapplicable when, as here, 

the shipowner had no reasonable basis for relying on the 

longshoreman’s or stevedore’s judgment; neither CNX nor Bunn had 

reason to expect the untreated ice near hatch number three after 

Fediv promised to treat it, and thus, the ice was not “obvious 

and known to all.” Id. at 127–28.

13 Contrary to our dissenting colleague’s assertion, see

post, at 41 n.7, the rule derived from Bonds and cited in 

Lincoln is not inconsistent with Howlett, which was decided 

nearly a decade before Lincoln. As the dissent recognizes, see

post, at 33, the duty to warn is a corollary to the turnover 

duty of safe condition, Howlett, 512 U.S. at 98. As such, it is 

subject to the same governing principles, including the rule 

that a shipowner’s liability depends on whether the stevedore is 

able “to carry on cargo operations with reasonable safety.” Id.

(internal quotation marks omitted). Indeed, several of our 

sister circuits--in decisions issued after Howlett--have 

recognized that a shipowner may be liable for failure to warn of 

even open and obvious hazards. See, e.g., Hill v. Reederei F. 

Laesz G.M.B.H., Rostock, 435 F.3d 404, 409 (3d Cir. 2006) 

(noting that a shipowner may be liable for not warning of an 

“open and obvious hazard” if “avoiding the hazard would be 

impractical for the longshoreman” or “the ship should have known 

that the longshoremen would confront the hazard”), cited post, 

at 35; Moore v. Angela MV, 353 F.3d 376, 381 (5th Cir. 2003) 

(noting that “a vessel has no duty to warn of dangers that would 

be obvious to a longshoreman of reasonable competence,” unless 

“the longshoreman’s only alternatives to facing the hazard are 

(Continued)
21

(We emphasize that our discussion of the duty to warn is 

merely dictum.)

For all these reasons, we are not persuaded that the “jury 

lacked a legally sufficient evidentiary basis for its verdict,” 

Gregg, 678 F.3d at 341, and, thus, we conclude that the district 

court did not err in its denial of the motions for judgment as a 

matter of law.

4.

Before moving on to consider Oldendorff’s second issue on 

appeal, we feel it appropriate to offer a few respectful 

responses to our good friend in dissent.

Our colleague laments that 

the focus of the parties on the shipowner’s promise, 

rather than the character of the icy conditions, and 

the alternatives Bunn had in facing those conditions, 

left the jury with insufficient evidence to find 

Oldendorff breached its turnover duty.

Post, at 32. But we need not decide whether there was any 

justification for “the [parties’] focus . . . on the shipowner’s 

promise,” id.; there clearly was, as the promise was among the 

circumstances that defined the standard of care. See Lincoln, 

354 F.2d at 266 (noting that shipowners must exercise ordinary 

care “under the circumstances”). Moreover, the parties to a 

 

unduly impracticable or time-consuming or would force him to 

leave the job”).
22

lawsuit are entitled to frame the issues as each deems best.

See, e.g., Greenlaw v. United States, 554 U.S. 237, 243 (2008) 

(“In our adversary system, in both civil and criminal cases, in 

the first instance and on appeal, we follow the principle of 

party presentation. That is, we rely on the parties to frame the 

issues for decision and assign to courts the role of neutral 

arbiter of matters the parties present . . . . [T]he parties 

know what is best for them, and are responsible for advancing 

the facts and arguments entitling them to relief.”) (internal 

quotation marks omitted). The problem for Oldendorff--one from 

which it cannot be rescued at this stage--is that it has elected 

to litigate this case solely on the theory that it did not 

breach the duty to warn, that is, that Oldendorff owed no duty 

to warn of untreated ice after having promised, hours before 

actual turnover of the vessel for loading, to treat the ice and 

thereby render the areas around and abutting the holds safe. 

Although we have offered up plenty of dicta to question the 

legal correctness of that assertion, our affirmance of the 

judgment is based not on the duty to warn but on the more 

general turnover duty of safe condition. That is, we conclude

that the district court did not err in treating the breach of 

Oldendorff’s promise, under the circumstances, as a failure to 

exercise reasonable care in executing Oldendorff’s more general 
23

turnover duty. In short, the evidence supported the jury’s

finding of simple negligence.

Adopting Oldendorff’s misguided view that the lawsuit 

implicates only the duty to warn, the dissent asserts that “the 

center of [our] disagreement . . . is the question of whether a 

shipowner’s unfulfilled promise to remedy an open and obvious 

hazard affects its turnover duty.” Post, at 32. This 

characterization misses the mark, not only for the reasons 

articulated above but because it wrongly assumes that the hazard 

created by the presence of ice on the deck and around the 

hatches remained precisely the same after Fediv’s promise to 

treat it as it was before he made (and then breached) his 

promise: perfectly open and obvious. See, e.g., post, at 39

(reasoning that “[a]s long as an unremedied hazard remains open 

and obvious, a shipowner’s liability . . . is thus extremely 

limited”) (emphasis added). For the reasons stated above, the 

risk of injury from the untreated ice was decidedly not open and 

obvious after Fediv made and then breached his promise to treat 

it. We agree to disagree on that score.14

 14 To put it another way, Oldendorff should have known--

after Fediv’s promise and failure to treat the ice--that neither 

Bunn nor his stevedore employer would have expected a 

longshoreman to encounter the slippery surface near hatch number 

three. Thus, Oldendorff “should have expected that [Bunn] could 

not or would not avoid the hazard and conduct cargo operations 

reasonably safely.” Kirsch v. Plovidba, 971 F.2d 1026, 1031 (3d 

(Continued)
24

Our dissenting colleague insists that a shipowner’s 

turnover duty is narrow, see, e.g., post, at 32, 34, and that 

stevedores and longshoremen bear the primary burden for ensuring 

safe working conditions for longshoremen, see, e.g., post at 36

(observing that “a shipowner can, ordinarily, reasonably rely on 

the stevedore [and longshoremen] . . . to notice obvious hazards 

and to take steps consistent with [their] expertise to avoid 

those hazards where practical to do so”) (alterations in 

original) (quoting Kirsch v. Plovidba, 971 F.2d 1026, 1030 (3d 

Cir. 1992)). Indeed, the dissent suggests that Bunn could have 

prevented his injury by, inter alia, “clear[ing] the ice 

himself.” Post, at 42–43. But that, of course, would have 

required Bunn to know about the untreated ice, which he

discovered only upon taking a few steps and immediately falling. 

Moreover, the evidence at trial overwhelmingly established (and 

the jury was entitled to find) that the responsibility for

removing ice aboard a ship customarily rests with the shipowner. 

See supra n.10. As the dissent concedes, see post, at 39, 

custom, like any other circumstance surrounding an accident, may 

 

Cir. 1992), cited in post, at 39–40. As such, the jury was 

entitled to find Oldendorff liable based on Fediv’s failure to 

treat the ice as promised. Id.
25

inform a shipowner’s duties to longshoremen.15 And, of course, 

any negligence on the part of a stevedore--here, CNX, acting 

through its agent White--does not absolve a shipowner such as 

Oldendorff of its own duty of care. See, e.g., Woodruff v. 

United States, 710 F.2d 128, 132 n.9 (4th Cir. 1983) (noting 

that a shipowner “will be liable for the full extent of [a] 

[longshoreman’s] injuries notwithstanding proof of concurrent 

negligence contributing to the injury on the part of [the 

stevedore], diminished only by [the longshoreman’s] contributory 

negligence.”) (citing Edmonds v. Compagnie Generale 

Transatlantique, 443 U.S. 256 (1979)). 

For the reasons set forth, we think to say the turnover 

duty is “narrow” is to speak descriptively, not prescriptively; 

we do not believe the Supreme Court has built the kind of 

impenetrable silos of theories cabining shipowner negligence 

with the rigidity that the dissent believes exist. If, indeed, 

that is the import of the rule adopted by the Third, Fifth, and 

Ninth Circuits, as the dissent’s reliance on their precedents 

suggests, we choose a different path. 

 15 The dissent risks oversimplifying the case by suggesting 

that darkness alone was the hazard giving rise to Bunn’s injury. 

See post, at 44–45. As stated above, Oldendorff’s liability 

arose from the totality of the circumstances, which included not 

only the ship’s poor lighting, but Fediv’s promise to treat the 

ice, his failure to do so, and the custom of shipowners taking 

responsibility for removing ice aboard ships. 
26

In any event, distilled to its essence, the dissent’s real 

concern seems to rest on its unstated belief that the jury 

should have found Bunn 100 percent at fault rather than merely 

the 15 percent the jury did find. See post, at 39 (suggesting 

that Bunn “shirk[ed] his duty to act with reasonable care”); but 

see supra n.11. But whether Bunn’s failure to exercise 

reasonable care for his own safety constituted the sole 

proximate cause of his injuries--the crux of the dissent--is not 

presented as an issue in this case. 

Finally, we confess we find somewhat puzzling the dissent’s

assertion that the proper outcome is neither affirmance nor 

judgment for Oldendorff as a matter of law, but rather, “a new 

trial or other proceedings.” Post, at 47. Yet our good friend 

fails to explain what such proceedings would accomplish. 

Oldendorff has not, for example, challenged the sufficiency of 

the verdict on the grounds that the district court allowed the 

jury to consider unreliable, and therefore, inadmissible 

evidence. See, e.g., Weisgram v. Marley Co., 582 U.S. 440, 443 

(2000). Nor has Bunn, as appellee, asked for a new trial if we 

find the district court erred in denying Oldendorff’s motions

for judgment as a matter of law. See Fed. R. Civ. P. 50(e); 

Neely v. Martin K. Elby Constr. Co., 386 U.S. 317, 327 (1967)

(observing that a plaintiff-appellee may be entitled to a new 

trial if “[t]he erroneous exclusion of evidence . . . would have 
27

strengthened his case” or “the trial court itself caused the 

insufficiency in [the] plaintiff-appellee’s case by erroneously 

placing too high a burden of proof on him at trial”), cited 

post, at 47. The task before us, then, is quite simple, and 

requires no further proceedings: we need only decide “whether a 

jury, viewing the evidence in the light most favorable to 

[Bunn], could have properly reached the conclusion reached by 

this jury.” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) 

(internal quotation marks omitted). For the reasons stated 

above, we conclude that the answer is yes, and affirm the denial 

of Oldendorff’s motions for judgment as a matter of law. 

B.

Finally, Oldendorff argues that the district court erred in 

denying its motion for a new trial because the court’s refusal 

to give the company’s requested “open and obvious instruction 

deprived the jury of a full and accurate understanding of the 

law,” and “deprived [Oldendorff] of the opportunity to argue 

effectively the significance of the open and obvious defense.”

Opening Br. 40–41. 

“We review for abuse of discretion a district court’s 

denial of a motion for new trial,” and “will not reverse such a 

decision save in the most exceptional circumstances.” Figg v. 

Schroeder, 312 F.3d 625, 641 (4th Cir. 2002) (internal quotation 
28

marks omitted).16 Similarly, “[w]e review a trial court’s jury 

instructions for abuse of discretion,” keeping in mind that “a 

trial court has broad discretion in framing its instructions to 

a jury.” Volvo Trademark Holding Aktiebolaget v. Clark Mach. 

Co., 510 F.3d 474, 484 (4th Cir. 2007). “Instructions will be 

considered adequate if construed as a whole, and in light of the 

whole record, they adequately informed the jury of the 

controlling legal principles without misleading or confusing the 

jury to the prejudice of the existing party.” King v. McMillan, 

594 F.3d 301, 311 (4th Cir. 2010) (internal quotation marks and 

brackets omitted). “Even if a jury was erroneously instructed,

however, we will not set aside a resulting verdict unless the 

erroneous instruction seriously prejudiced the challenging 

party’s case.” Coll. Loan Corp. v. SLM Corp., 396 F.3d 588, 595

(4th Cir. 2005) (emphasis added) (internal quotation marks 

omitted). 

Preliminarily, we hold that Oldendorff has failed to 

preserve a challenge to the jury instructions, as the company 

has provided no record of an objection to the district court. 

See Fed. R. Civ. P. 51(c)(1) (“A party who objects to an 

instruction or the failure to give an instruction must do so on 

 16 Collapsing all its claims into one, Oldendorff

erroneously contends that our standard of review of the denial 

of its motion for a new trial is de novo. Opening Br. 8-9, 39–

41. It is not.
29

the record, stating distinctly the matter objected to and the 

grounds for the objection”). When challenging instructions on 

appeal, a party must “furnish the court of appeals with so much 

of the record of the proceedings below as is necessary to enable 

informed appellate review.” Faigin v. Kelly, 184 F.3d 67, 87 

(1st Cir. 1999) (finding that appellant’s “fail[ure] to supply a 

transcript of the Rule 51 sidebar conference” gave rise to a 

“presumption that none of his challenges to the jury 

instructions were properly preserved”), cited in Belk, Inc. v. 

Meyer Corp., U.S., 679 F.3d 146, 154 n.6 (4th Cir. 2012) 

(finding that appellant had “waived its challenge to any jury 

instructions” because it had failed, inter alia, “to provide a 

record citation to where it objected to any given or omitted 

jury instruction”). See also Maltby v. Winston, 36 F.3d 548, 560 

(7th Cir. 1994) (finding that the appellant had failed to 

preserve his challenge to jury instructions because “the 

instruction conference in the district court was not 

memorialized in the record,” and the appellant had not otherwise

“ma[d]e a sufficient record”). 

Here, Oldendorff has provided only its requested 

instructions, and those that the court ultimately gave the jury.

“Importantly, the mere tendering of a proposed instruction will 

not preserve error for appeal.” Kevin F. O'Malley, et al., 1 

Fed. Jury Practice & Instructions § 7:4 (5th ed. 2012). See also
30

City of Richmond, Va. v. Madison Mgmt. Grp., Inc., 918 F.2d 438, 

453 (4th Cir. 1990) (“Where . . . a party who has violated Rule 

51 can point to nothing more than the court’s denial of a 

requested instruction, a reading of Rule 51 loose enough to 

permit preservation of the point would effectively delete Rule 

51 insofar as allegations of error in the failure to give an 

instruction are concerned.”).

In any event, even were we to reach the issue, we would 

conclude it is meritless. For the reasons stated above, see

supra Part II.A, the court properly informed the jury that a 

shipowner may be “liable for injury resulting directly from an 

unsafe condition on the ship of which it was aware and which it 

voluntarily agreed and undertook to remedy, but failed to do 

so.” J.A. 387. That a shipowner generally need not warn of an 

open and obvious hazard does not absolve the shipowner of its 

more general duty to exercise ordinary care under the 

circumstances to ensure that the ship is in a reasonably safe 

condition. Lincoln, 354 F.3d at 266 (quoting Scindia, 451 U.S. 

at 166–67). Thus, we cannot see how Oldendorff was prejudiced, 

let alone seriously prejudiced, by the absence of any specific 

instruction on the open and obvious defense. Coll. Loan Corp., 

396 F.3d at 595.

Moreover, Oldendorff’s proposed instruction--“In the 

absence of any agreement, the ship is not responsible for any 
31

open and obvious condition.”--was an incomplete statement of the 

law in any event. J.A. 84. In fact, a shipowner may still be 

liable for failing to warn of an open and obvious hazard if a 

stevedore’s employee would not be able to work around the

hazard. Lincoln, 354 F.3d at 266. Accordingly, we find no abuse 

of discretion in the district court’s denial of the motion for a 

new trial.

III.

Like ships passing in the night, plaintiff Bunn, the 

district court, and the jury, on the one hand, understood this 

case was principally one of simple negligence, whereas on the 

other hand, Oldendorff has insisted, here to the very end, that 

it was solely a failure-to-warn case. For the reasons set forth 

herein, we reject Oldendorff’s assertion and therefore affirm 

the judgment.

AFFIRMED
32

MOTZ, Circuit Judge, dissenting:

With respect, I dissent. In my view, the focus of the 

parties on the shipowner’s promise, rather than the character of 

the icy conditions, and the alternatives Bunn had in facing 

those conditions, left the jury with insufficient evidence to 

find Oldendorff breached its turnover duty.1

I.

At the center of my disagreement with the majority is the 

question of whether a shipowner’s unfulfilled promise to remedy 

an open and obvious hazard affects its turnover duty.

It is well established that § 905(b) of the Longshore and 

Harbor Workers’ Compensation Act imposes upon a shipowner a 

narrow turnover duty. See Scindia Steam Navigation Co. v. De 

Los Santos, 451 U.S. 156, 166-67 (1981); Kirksey v. Tonghai 

Mar., 535 F.3d 388, 391 (5th Cir. 2008). This duty “relates to 

the condition of the ship upon the commencement of stevedoring 

operations” and “has two components.” Lincoln v. Reksten Mgmt., 

354 F.3d 262, 266 (4th Cir. 2003).

 1 I agree, for the reasons well stated by the majority, that 

Oldendorff’s appeals of the district court’s order denying 

summary judgment and its jury instructions are not properly 

before us.
33

First, a 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.” 

Scindia, 451 U.S. at 166-67 (emphasis added). This duty is 

known as the turnover duty of safe condition. See, e.g., Ludwig 

v. Pan Ocean Shipping Co., 941 F.2d 849, 851 (9th Cir. 1991).2

As a corollary to the turnover duty of safe condition, a 

shipowner must also

warn[] the stevedore of any hazards on the ship or 

with respect to its equipment that are known to the 

vessel or should be known to it in the exercise of 

reasonable care, that would likely be encountered by 

the stevedore in the course of his cargo operations 

and that are not known by the stevedore and would not 

be obvious to or anticipated by him if reasonably 

competent in the performance of his work.

 2 “Although the turnover duty of safe condition is usually 

framed in terms of stevedores, it is clear that danger to 

longshore workers is an essential part of the inquiry.” Thomas 

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

(emphasis original). Turning over a ship upon which an expert 

stevedore can complete its operations with reasonable safety 

necessarily requires turning over a ship upon which the 

longshoremen--the stevedore’s expert employees who actually 

perform the operations--can complete their duties with 

reasonable safety. Id.; accord Kirsch v. Plovidba, 971 F.2d 

1026, 1029-30 (3d Cir. 1992). Hence, when determining whether a 

shipowner has breached its turnover duty of safe condition, “the 

focus of the factual inquiry is frequently directed at 

experienced longshore workers”--not just their expert stevedore 

employer. Thomas, 42 F.3d at 1270 n.4; accord Kirksey, 535 F.3d 

at 396; Lincoln, 354 F.3d at 266; Kirsch, 971 F.2d at 1029-30.
34

Scindia, 451 U.S. at 167 (emphasis added). This duty is known 

as the turnover duty to warn. See Howlett v. Birkdale Shipping 

Co., S.A., 512 U.S. 92, 99 (1994).

Thus, § 905(b) imposes on a shipowner duties at turnover 

that are very narrow. See Kirsch v. Plovidba, 971 F.2d 1026, 

1029 (3d Cir. 1992) (“[T]he shipowner’s duty is only to provide 

a workplace where skilled longshore workers can operate 

safely.”); see also Scindia, 451 U.S. at 170. The turnover duty 

of safe condition merely requires that a shipowner exercise 

ordinary care, under the circumstances, to provide an expert and 

experienced stevedore or longshoreman, who exercises reasonable 

care, the ability to carry out its operations with reasonable 

safety. Scindia, 451 U.S. at 166-67. The corollary turnover 

duty to warn requires only that a shipowner exercise ordinary 

care to provide to a reasonably competent stevedore or 

longshoreman notice of non-obvious hazards. Id. at 167.

Indeed, the openness and obviousness of a hazard to a 

stevedore provides a shipowner with a complete defense to a 

turnover duty to warn claim, no matter how unreasonably 

dangerous the hazard. See Kirksey, 535 F.3d at 393. The 

majority errs in asserting that a shipowner has a duty to warn a 

stevedore of even an open and obvious hazard if the stevedore 

“is [un]able to conduct . . . operations around [the hazard] 
35

safely.” Ante at 11, 19-20. In fact, the Supreme Court has 

explicitly rejected this view of the turnover duty to warn:

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.

Howlett, 512 U.S. at 105; see also Ludwig, 941 F.2d at 851 (“The 

shipowner had no duty to warn Ludwig [the longshoreman] of the 

hazard. It was obvious, so its mere presence carried a 

warning.”).

Of course, the openness and obviousness of a hazard does 

not absolve the shipowner of its turnover duty of safe 

condition. See Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 

31, 34 (5th Cir. 1997); Kirsch, 971 F.2d at 1029-30; Ludwig, 941 

F.2d at 851. But when a hazard is open and obvious, the 

shipowner has a diminished turnover duty of safe condition. 

See, e.g., Kirksey, 535 F.3d at 395-96; Hill v. Reederei F. 

Laeisz G.M.B.H., Rostock, 435 F.3d 404, 409 (3d Cir. 2006); 

Keller v. United States, 38 F.3d 16, 24 (1st Cir. 1994); 

Pimental v. LTD Can. Pac. Bul, 965 F.2d 13, 16 (5th Cir. 1992); 

Ludwig, 941 F.2d at 851-52.

As the Third Circuit has explained, “a shipowner may be 

negligent for failing to eliminate an [open and] obvious hazard

that it could have eliminated . . . only when it should have 

expected that an expert stevedore [or longshoreman] could not or 
36

would not avoid the hazard and conduct cargo operations 

reasonably safely.” Kirsch, 971 F.2d at 1031 (emphasis added).

This standard recognizes that “a shipowner can, ordinarily, 

reasonably rely on the stevedore [and longshoremen] . . . to 

notice obvious hazards and to take steps consistent with [their]

expertise to avoid those hazards where practical to do so.” Id.

at 1030; see also Howlett, 512 U.S. at 101; Ludwig, 941 F.2d at 

852.3 An expert and experienced longshoreman can avoid open and 

obvious hazards in a number of ways, for example by fixing the 

hazard himself, see Albergo v. Hellenic Lines, Inc., 658 F.2d 

66, 69 (2d Cir. 1981), or completing operations while avoiding 

the hazard, see Bjaranson v. Botelho Shipping Corp., Manila, 873 

F.2d 1204, 1208 (9th Cir. 1989); Morris v. Compagnie Mar. Des 

Chargeurs Reunis, S.A., 832 F.2d 67, 70 (5th Cir. 1987). So 

long as an expert longshoreman has available such an option, a 

shipowner cannot be held liable for a breach of its turnover 

 3 The negligence of a stevedore does not bar an injured 

longshoreman’s recovery from a negligent shipowner. See

Woodruff v. United States, 710 F.2d 128, 131-32 & n.7 (4th Cir. 

1983). However, a shipowner breaches its turnover duty of safe 

condition only when an expert stevedore and its expert 

longshoremen could not through reasonable care carry on

operations with reasonable safety. See Scindia, 451 U.S. at 

166-67; Kirsch, 971 F.2d at 1029. If, through reasonable care, 

operations could have been completed with reasonable safety, the 

inquiry ends there, regardless of how negligent the stevedore 

has been.
37

duty of safe condition. Rather, the shipowner can reasonably 

rely on the longshoreman to exercise an alternative option.

II.

The majority largely ignores the above principles. 

Instead, relying primarily on Lieggi v. Maritime Co. of 

Philippines, 667 F.2d 324 (2d Cir. 1981) and two similar active 

operations duty cases, the majority holds that “a shipowner may 

be liable under the Act for promising, yet failing, to remedy a 

dangerous condition that injures a longshoreman.” Ante at 12.4 

The case at hand, however, does not concern the active 

operations duty. And the logic of the active operations duty 

does not extend to the turnover duty context.

Contrary to the majority’s suggestion, a “stark contrast” 

exists between the turnover duty and the active operations duty. 

See Davis v. Portline Transportes Mar. Internacional, 16 F.3d 

532, 537 (3d Cir. 1994). The turnover duty covers the 

shipowner’s conduct before the stevedore’s cargo operations have 

begun, while the active operations duty covers a shipowner’s 

conduct after cargo operations have begun in those areas 

 4 The active operations duty requires a shipowner after 

turnover “not to take negligent actions in areas under its 

control that threaten the longshoremen's safety.” Serbin v. 

Bora Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996); see also

Scindia, 451 U.S. at 167.
38

remaining under control of the shipowner. See Scindia, 451 U.S. 

at 167; Davis, 16 F.3d at 537.

The active operations duty does not rest on whether an 

expert stevedore and its expert longshoremen could have 

completed operations with reasonable safety. Instead, that duty 

rests on whether a shipowner negligently exposes longshoremen to 

any hazards--even avoidable ones--in areas under the shipowner’s

control during stevedoring operations. See Serbin v. Bora 

Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996). For this reason, 

the obviousness of a hazard does not presumptively bar recovery 

under an active operations duty claim. Id. at 75-76; Pimental, 

965 F.2d at 16.

But the obviousness of a hazard does presumptively bar 

recovery under a turnover duty claim. See Kirksey, 535 F.3d at 

395-96; Kirsch, 971 F.2d at 1031; Pimental, 965 F.2d at 16; 

Ludwig, 941 F.2d at 851-52. And a shipowner’s pre-turnover 

promise to remedy an open and obvious hazard does not itself 

affect the openness and obviousness of the hazard at turnover. 

Rather, a shipowner can reasonably rely on an expert stevedore 

and its expert longshoremen to notice and avoid an open and 
39

obvious hazard. See Kirksey, 535 F.3d at 394; Kirsch, 971 F.2d 

at 1030.5

Moreover, a shipowner’s promise to remedy a hazard does not

create a duty actionable under § 905(b). This is so because in 

the absence of a “contract provision, positive law, or custom to 

the contrary,” all § 905(b) claims must fall under one of the 

duties identified by the Supreme Court in Scindia. See 451 U.S. 

at 172; Kirsch, 971 F.2d at 1031. An expert and experienced 

longshoreman cannot, by the mere virtue of a shipowner’s 

promise, shirk his duty to act with reasonable care in the face 

of an open and obvious hazard. Holding otherwise raises a 

promise to the level of a contract, and impermissibly shifts 

responsibility for longshoreman safety from stevedore (and the 

longshoreman himself) to shipowner.

As long as an unremedied hazard remains open and obvious, a 

shipowner’s liability to an injured longshoreman is thus 

extremely limited. Absent a contract provision, statute, 

regulation, or custom to the contrary, Scindia, 451 U.S. at 172,

the shipowner is liable only to the extent “it should have 

 5 The case at hand only involves a shipowner’s turnover duty 

regarding open and obvious hazards. A shipowner’s promise to 

remedy a hazard that is neither known nor open and obvious may 

affect the manner in which an expert and experienced stevedore 

reasonably performs its operations. In short, if a hazard is

not open and obvious, a stevedore would have reason to rely on a 

shipowner’s representation that the hazard would be removed.
40

expected that an expert stevedore [or longshoreman] could not or 

would not avoid the hazard and conduct cargo operations 

reasonably safely,” Kirsch, 971 F.2d at 1031.

III.

Considering the evidence in the light most favorable to 

Bunn, and with these legal principles in mind, I cannot agree 

with the majority’s disposition of this appeal.

“[I]n many cases the obviousness of a hazard . . . will be 

a jury question,” Kirsch, 971 F.2d at 1033, and if that were the 

situation here, I would join the majority in sustaining the 

jury’s verdict. But, both before this court and in the district 

court, Bunn expressly conceded that “the ice-covered condition 

of the deck was open and obvious.” Resp. Br. at 18; see also

Bunn v. Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-

WMN (D. Md. Nov. 18, 2010), ECF No. 27, at 6. This concession 

took this important question out of the hands of the jury at 

trial, and binds us as we consider the proper application of the 

law on appeal.

Given this concession, the only remaining question is 

whether the evidence permitted a reasonable jury to conclude 

that the shipowner, Oldendorff, violated either component of its 

turnover duty by turning over the ship with open and obvious icy 
41

conditions. It seems to me that the answer to that question is 

certainly no.

The parties focus on the turnover duty to warn,6 and the 

majority extensively discusses that duty, sometimes suggesting 

that Oldendorff violated it. See ante at 15-23. But the 

majority ultimately characterizes this discussion as “plenty of 

dicta,”7 and expressly disavows it as a basis of its holding. 

The majority explains that its “affirmance of the judgment is 

based not on the duty to warn but on the more general turnover 

 6 Contrary to the majority’s suggestion, ante at 15, 30-31, 

Bunn deserves as much blame as Oldendorff for focusing on the 

turnover duty to warn. Both before the district court and on 

appeal, Bunn did little to prioritize or offer evidence in 

support of his turnover duty of safe condition claim.

7 In the course of this dicta, the majority asserts that, 

although the ice on the ship was open and obvious, the “presence 

of untreated ice was assuredly not ‘open and obvious.’” Ante at 

15. Howlett, however, cannot be avoided simply by 

characterizing the ice as “untreated.” This is so because, by 

definition, ice and untreated ice are the same hazard. Just as 

a shipowner’s unfulfilled promise to remedy an open and obvious 

hazard--here icy conditions--does not render the hazard any less 

open and obvious, so too a shipowner’s failure to treat the 

hazard does not render it any less open and obvious. Whether 

one frames the hazard in this case as “ice” or “untreated ice,” 

it remains equally open and obvious, and Howlett forecloses any 

turnover duty to warn claim.

Later in its own dicta, the majority relies on dicta in 

Lincoln contending that a shipowner has a duty to warn a 

stevedore of even open and obvious hazards if the stevedore “is 

[un]able to conduct . . . operations around [the hazard] 

safely.” Ante at 19. But, as noted above, Howlett simply does 

not permit this conclusion. For in Howlett the Supreme Court 

expressly and clearly held that “[t]he duty [to warn] attaches 

only to latent hazards.” 512 U.S. at 105 (emphasis added).
42

duty of safe condition.” Ante at 22 (emphasis original); see

also ante at 9 (“[L]iability does not depend on the duty to 

warn.”). This disavowal seems appropriate and inevitable given 

the clear directive of Howlett--that the duty to warn “attaches 

only to latent [not obvious] hazards.” 512 U.S. at 105 

(emphasis added).

However, affirmance on the basis of the turnover duty of 

safe condition--the sole basis for the majority’s holding--is 

not possible because no evidence at trial established a 

violation of this duty. That is, the jury had insufficient 

evidence to find that the shipowner, Oldendorff, “should have 

expected that an expert [longshoreman] could not or would not 

avoid the hazard [here, icy conditions near hold three] and 

conduct cargo operations reasonably safely.” Kirsch, 971 F.2d 

at 1031.8

Indeed, the only relevant evidence presented to the jury on 

this critical point suggests that an expert longshoreman, in 

Bunn’s position, might have avoided this open and obvious hazard 

in several ways. He might have avoided the icy condition near 

 8 The majority, focusing solely on the unfulfilled promise

of the shipowner (by Fediv), effectively ignores this most 

fundamental inquiry into whether an expert longshoreman could 

have “by the exercise of reasonable care . . . carr[ied] on 

[his] cargo operations with reasonable safety to persons and 

property.” Scindia, 451 U.S. at 166-67.
43

hold three altogether by loading another hold or undertaking 

another task. Cf. Burchett v. Cargill, Inc., 48 F.3d 173, 179 

(5th Cir. 1995); Bjaranson, 873 F.2d at 1208. Alternatively, he 

might have cleared the ice himself, see Pimental, 965 F.2d at 

16; Albergo, 658 F.2d at 69, or enlisted a crew member to do so, 

see Kirsch, 971 F.2d at 1034. Of course, these options and 

others may have been unavailable to Bunn, but the record 

provides no evidence to this effect.

Nor does the record contain any evidence that Bunn was 

required to finish the job quickly, making him unable to avoid 

the hazard. See Teply v. Mobil Oil Corp., 859 F.2d 375, 378 

(5th Cir. 1988). To the contrary, Bunn’s shift supervisor 

provided unrebutted testimony that if a longshoreman encounters 

a hazardous condition on a ship “[h]e is empowered to shut the 

operation down.” JA 133. And another longshoreman, Moxey, did 

shut down operations when the icy conditions around hold three 

remained hazardous several hours after Bunn’s fall. JA 92.9

 9 Bunn does not argue that a “contract provision, positive 

law, or custom” forms the basis of his § 905(b) claim. See

Scindia, 451 U.S. at 172. Indeed, by regulation, it is the duty 

of the stevedore to “eliminate conditions causing slippery 

walking and working surfaces in immediate areas used by 

employees.” 29 C.F.R. § 1918.91. Thus, the general principle 

that a shipowner can reasonably rely on an expert stevedore and 

its expert longshoremen to notice and avoid an open and obvious 

hazard applies with full force to this case. See Kirsch, 971 

F.2d at 1030; Ludwig, 941 F.2d at 852.
44

Implicit in the majority’s holding may be the view that an 

expert and experienced longshoreman would be unable to 

distinguish between treated and untreated ice and so have no 

reason to pursue another option. This may be so, but the record 

contains no evidence on this point either.

Of course, as the majority notes, Bunn argues in his briefs

that “the lack of treatment with sand and salt in the area where 

[he] was obliged to work was not open and obvious.” See, e.g., 

Resp. Br. at 18. No evidence, however, supports this argument. 

Rather, at trial, Bunn himself testified that in well-lit areas 

of the ship he could distinguish between treated and untreated 

portions of the deck. JA 178, 226-27. Only in the dark, “very 

poor[ly]” lit area around hold three was Bunn unable to tell 

whether the ice had been treated. JA 182-83. Bunn’s own 

testimony therefore supports just one conclusion: that his 

failure to notice the icy conditions was solely because it was 

dark, not because treated and untreated ice are 

indistinguishable. See Resp. Br. at 19 (conceding that “Mr. 

Bunn . . . had testified . . . that the darkness in the area 

around No. 3 hatch prevented [him] from discovering that the ice 

in that area had not been treated.”).

But to the extent that darkness constitutes a hazard, it is 

assuredly obvious, and easily remedied by an expert longshoreman

(or indeed anyone with a flashlight). See, e.g., Harris v. 
45

Pac.-Gulf Marine, Inc., 967 F. Supp. 158, 164-65 (E.D. Va. 

1997); Chapman v. Bizet Shipping, S.A., 936 F. Supp. 982, 986 

(S.D. Ga. 1996); Landsem v. Isuzu Motors, Ltd., 534 F. Supp. 

448, 451 (D. Or. 1982), aff’d, 711 F.2d 1064 (9th Cir. 1983)

(table). Therefore, darkness provides no basis for a 

shipowner’s liability under its turnover duties. Nor can 

darkness render an obvious hazard latent. Cf. Harris, 967 F. 

Supp. at 164; Chapman, 936 F. Supp. at 986. Otherwise the scope 

of a shipowner’s turnover duties on identically hazardous ships 

could differ depending solely on the time of day when the 

turnover occurred.10

In response to this record evidence and these legal 

principles, the majority is left to contend that not just poor 

lighting but also the unfulfilled promise and a purported custom 

of shipowners removing onboard ice constitute the “totality of 

the circumstances” that renders Oldendorff liable. Ante at 24 

n.15 (emphasis in original). But, as explained above, like poor 

 10 The regulatory scheme governing stevedoring operations 

supports the conclusion that natural darkness cannot contribute 

to the latency of a hazardous condition; for it is the 

stevedore’s--not shipowner’s--duty to provide an illuminated 

workspace for cargo operations, and to provide longshoremen with 

flashlights or other portable lights. See 29 C.F.R. § 1918.2, 

.92; see also Scindia, 451 U.S. at 176 (“The statutory duty of 

the stevedore under [33 U.S.C.] § 941 to provide a safe place to 

work has been implemented by the Safety and Health Regulations 

for Longshoring. 29 CFR § 1918.1 et seq.”).
46

lighting, an unfulfilled promise does not render an otherwise 

obvious hazard latent. See ante at 39. And Bunn has never even 

argued that custom (rather than the turnover duty) forms the 

basis for his claim. See ante at 43 n.9. Thus, the record 

provides no support for the view that the totality of these 

circumstances barred Oldendorff from reasonably relying on an 

expert longshoreman in Bunn’s position to notice and avoid the 

obvious icy conditions. See Kirksey, 535 F.3d at 394; Kirsch, 

971 F.2d at 1030.11

In sum, the record is bereft of evidence that Oldendorff 

“should have expected that an expert [longshoreman] could not or 

would not avoid the hazard [here, icy conditions] and conduct 

cargo operations reasonably safely,” Kirsch, 971 F.2d at 1031, 

and contains considerable evidence suggesting the contrary. 

Accordingly, the jury lacked an evidentiary basis to find that 

Oldendorff breached its turnover duty of safe condition.

 11 For, as we explained long ago, a shipowner is “entitled 

to rely on [a stevedore’s] judgment as to whether discharge 

operations could safely be undertaken.” Bonds v. Mortensen & 

Lange, 717 F.2d 123, 127-28 (4th Cir. 1983). There, we reversed 

a verdict for a longshoreman killed by a crane with a 

malfunctioning bell on the ground that the hazard was “known to 

all” and was avoidable. Id. We explained that this is “not a 

situation . . . in which the longshoremen were precluded from 

performing their tasks except by a means which was inherently 

dangerous.” Id. at 127-28 & n.5. That logic would seem to 

require, at the very least, that in this case we vacate the 

verdict and remand the case for further proceedings, as I 

propose.
47

IV.

This is a complex case, made only more so by the parties’ 

failure to develop facts concerning the character of the icy 

conditions and the alternatives Bunn had in facing those 

conditions. On the one hand, the record does not provide a 

legally sufficient evidentiary basis from which a jury could 

find that Oldendorff breached its turnover duty. On the other 

hand, the record does not clearly foreclose Oldendorff’s 

possible liability for violating its turnover duty. Rather, the 

record is simply inadequate to allow a jury to resolve--one way 

or the other--the dispositive legal question in the case: 

whether “an expert [longshoreman] could not or would not avoid 

the hazard and conduct cargo operations reasonably safely.” 

Kirsch, 971 F.2d at 1031.

The Supreme Court has recognized that in limited 

circumstances “where the court of appeals sets aside the jury’s 

verdict because the evidence was insufficient to send the case 

to the jury,” as I believe it was here, “it is not so clear that 

the litigation should be terminated.” Neely v. Martin K. Eby 

Const. Co., 386 U.S. 317, 327 (1967). In my view, this is such 

a case. Accordingly, I would vacate the judgment of the 

district court and remand the case for a new trial or other 

proceedings consistent with this opinion. See Fed. R. Civ. P. 
48

50(b); Weisgram v. Marley Co., 528 U.S. 440, 451-52 (2000); 

Neely, 386 U.S. at 327-330.