IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

RONALD JONES, 

 Plaintiff, 

 v. 

SANKO STEAMSHIP CO., LTD, S.K. 

SHIPPING CO., LTD, GRANDSLAM 

ENTERPRISE CORP., HARMONY 

STEVEDORING SERVICES, and 

HYUNDAE SHIP’S SUPPLY CO., 

 Defendants. 

 

HONORABLE JEROME B. SIMANDLE 

Civil Action 

No. 10-6787 (JBS/KMW) 

OPINION

 

APPEARANCES: 

Scott A. Portner, Esq. 

Stanley B. Gruber, Esq. 

FREEDMAN & LORRY, P.C. 

1601 Market Street, Suite 1500 

Philadelphia, PA 19103 

 Attorneys for Plaintiff 

Charles P. Neely, Esq. 

Richard Q. Whelan, Esq. (pro hac vice) 

PALMER BIEZUP & HENDERSON LLP 

330 Market Street 

Camden, NJ 08102 

Attorney for Defendant Grandslam Enterprise Corp. 

Jeffrey S. Moller, Esq. 

James J. Quinlan, Esq. 

BLANK ROME LLP 

One Logan Square 

130 North 18th Street 

Philadelphia, PA 19103 

 Attorneys for Defendant S.K. Shipping Co. Ltd. 

SIMANDLE, Chief Judge: 

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Table of Contents 

INTRODUCTION.............................................. 2

FACTUAL AND PROCEDURAL BACKGROUND......................... 7

A. SK’s Shipping Contract with LWI and Charter of the SANKO 7

B. SK’s Malaysian Loading Operations of the SANKO .......... 9

C. SK’s Camden Discharging Operations of the SANKO ........ 12

1. The “cut” sling and Plaintiff’s Injuries .............. 16

STANDARD OF REVIEW ..................................... 19

DISCUSSION............................................... 20

A. Section 905(b) Duties under the LHWCA, Generally ....... 21

1. Turnover Duty of Grandslam, the “bareboat charterer” .. 25

a. Plaintiff cannot establish a prima facie breach of 

Grandslam’s turnover duty................................ 28

b. No contract, positive law, or custom supplants the 

application of the general duties under Scindia.......... 32

2. Turnover duty of SK, the “time charterer” ............. 36

a. Genuine issues of fact preclude the entry of summary 

judgment in favor of SK.................................. 37

b. Genuine issues of fact preclude a finding that the 

“cut” sling was “open and obvious”....................... 41

CONCLUSION............................................... 43

INTRODUCTION 

 While working as a longshoreman on Camden, New Jersey’s 

Pier No. 1 during cargo operations conducted by his employer, 

the Delaware River Stevedores, Inc. (hereinafter, “DRS”), on M/V 

SANKO SUMMIT (hereinafter, “SANKO”), Plaintiff Ronald Jones 

(hereinafter, “Plaintiff”) suffered serious injuries when a 

“cut” sling parted, and caused a pre-slung plywood bundle to 

fall on his legs. There is no dispute that the sling, which is 

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made of rope of almost one inch in diameter, contained a cut 

that had penetrated about 80% of the thickness near the loops in 

the sling that were used to hoist the cargo from the hold to the 

dock, where Plaintiff awaited. 

 As a result of these injuries, Plaintiff brings claims 

under the Longshore and Harbor Workers’ Compensation Act, 33 

U.S.C. § 905(b) (hereinafter, the “LHWCA”), against a bevy of 

entities,1 including the owner of the SANKO, Defendant Sanko 

Steamship Co. Ltd (hereinafter, “Sanko Steamship”),2 the bareboat 

charterer/owner pro hac vice of the SANKO, Defendant GrandSlam 

Enterprise Corp. (hereinafter, “Grandslam”),3 the “time 

charterer” of the SANKO and owner of the rope sling at issue in 

this litigation, Defendant SK Shipping Co., Ltd. (hereinafter, 

 

1 Plaintiff could not, however, sue his employer DRS, because the 

LHWCA obligated DRS to compensate him and provide reimbursement 

for his medical costs and expenses, but otherwise immunized it 

from suit. See 33 U.S.C. §§ 903, 904. 905(a), 907. 

2 As a result of Sanko Steamship Co. Ltd.’s August 8, 2012 

bankruptcy petition, the Court stayed this case as against Sanko 

Steamship on September 12, 2012. [See Docket Item 57.] As 

explained later, however, Grandslam in essence stands in the 

shoes of Sanko Steamship for purposes of this litigation, and 

its absence therefore has no impact on the disposition of the 

pending motions. 

3 In simple terms, a bareboat charterer (commonly referred to as 

a demise charterer) assumes control of a vessel in “bare” 

condition and must provide a crew to navigate and maintain it in 

seaworthy condition. Dougherty v. Navigazione San Paolo, S.P.A. 

Medafrica Line, 622 F. Supp. 1, 1 (E.D. Pa. 1984). In that way, 

the bareboat charterer becomes the owner pro hac vice, and 

succeeds to responsibilities and obligations equivalent to that 

of the vessel owner. See id. As a result, the Court will use 

the term vessel owner, bareboat charterer, and owner pro hac 

vice interchangeably. 

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“SK” or “SK Shipping”),4 the Korean contractor that maintained 

SK’s rope slings prior to their application to the plywood 

cargo,5 Defendant Hyundae Ship Supply Co. (hereinafter, “Hyundae 

Supply”), and the stevedoring company that loaded the plywood in 

the Malaysian port of Tanjung Manis, Defendant Harmony 

Stevedoring Services (hereinafter, “Harmony Stevedoring”).6

 Following years of discovery, Grandslam and SK now 

separately move for summary judgment, based upon their belief 

that the undisputed record demonstrates, as a matter of law, 

that they breached none of the duties owed to Plaintiff under 

section 905(b) of the LHWCA or general maritime law. Grandslam, 

as the bareboat charterer/owner pro hac vice of the SANKO, 

specifically argues that it cannot, as a matter of law, be found 

 

4 In contrast to a bareboat charterer, a time charterer obtains 

use of a vessel’s carrying capacity for a fixed charter period, 

while the vessel owner (bareboat charterer or owner pro hac 

vice) retains control of the vessel’s management and navigation. 

See Dougherty, 622 F. Supp. at 1. 

5 Plaintiff additionally brought claims against the owner of the 

cargo of pre-slung bundled plywood being discharged by DRS at 

the time of his injuries, Defendant Liberty Woods International 

(hereinafter, “LWI” or “Liberty Woods”). On May 27, 2015, 

however, Plaintiff voluntarily dismissed his claims against LWI 

with prejudice. [See Docket Item 123.] 

6 Despite service pursuant to international convention [see 

Docket Items 58 & 61], neither Harmony (a Malaysian entity) nor 

Hyundae (a South Korean entity) have ever responded to the 

claims asserted against them in this litigation. As a result, 

the Clerk of Court entered default (but not default judgment) 

against Harmony on October 15, 2012 [see Docket Item 60], and 

against Hyundae on March 27, 2013. [See Docket Item 64.] 

Plaintiff shall notify the Court of his intentions vis-à-vis 

these Defendants within seven (7) days from entry of this 

Court’s Opinion and Order. 

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in breach of its duties under section 905(b) of the LHWCA, 

because the disputed sling came aboard the SANKO after the 

vessel had been turned over to the independent stevedore hired 

by SK, and because it had no part in the use of the rope slings, 

nor any involvement in the loading of the plywood cargo. (See 

generally Grandslam’s Br. at 21-38; Grandslam’s Reply at 3-10.) 

As a result, Grandslam claims that it had no duty to inspect or 

supervise the Malaysian stevedore’s use of rope slings in 

connection with the plywood shipment, and cannot be charged with 

any negligence based upon the condition of the disputed rope 

sling. (See generally Grandslam’s Br. at 21-38; Grandslam’s 

Reply at 3-10.) SK, as time charterer of the SANKO, similarly 

argues that it breached no duties in relation to Plaintiff’s 

injuries, because no evidence reflects that SK had 

responsibility for, knew of, or should have known of the deep 

“cut” on its rope sling, and because maritime law entitled SK to 

rely upon the expertise of the independent stevedores (here and 

abroad). (See generally SK’s Br. at 21-38; SK’s Reply at 3-10.) 

Indeed, given the nature of the damage to the rope sling—being 

“cut” rather than “frayed or worn” from use—SK submits that 

Plaintiff “cannot prove that [it] failed to act reasonably.” 

(SK’s Reply at 1-3.) 

 Plaintiff, by contrast, takes the position that factual 

issues relative to Grandslam’s and SK’s discharge of their 

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duties preclude the entry of summary judgment in either parties’ 

favor. (See generally Pl.’s Grandslam Opp’n at 22-37; Pl.’s SK 

Opp’n at 23-48.) Plaintiff points, in particular, to evidence 

that Grandslam failed to inspect the cargo slings or to 

otherwise ensure the condition of the slings prior to the 

commencement of cargo operations in Camden (see Pl.’s Grandslam 

Opp’n at 26-38); and to evidence that SK separately failed to 

discover, remedy, prevent, and/or disclose the dangerous 

condition of the rope slings. (See Pl.’s SK’s Opp’n at 32-48.) 

 The parties are in agreement (1) that the rope sling at 

issue came aboard the SANKO while in port at Tanjung Manis; (2) 

that the exact source of the “cut” cannot be scientifically 

determined (or drawn out through the robust discovery in this 

action); and (3) that that the single “cut” could have occurred 

at any time prior to Plaintiff’s incident. Against this 

backdrop, this case calls upon the Court to consider the duties, 

if any, owed to stevedoring longshoremen by “bareboat” and “time 

charterers” under section 905(b) of the LHWCA, Scindia Steam 

Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), Howlett v. 

Birkdale Shipping Co., S.A., 512 U.S. 92 (1994), and general 

maritime law. More specifically, the Court must determine the 

nature of the independent duties, if any, owed by Grandslam and 

SK to Plaintiff as an off-loading longshoremen, and must then 

consider whether genuine issues of fact exist on whether each 

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entity acted in compliance with those duties in relation to the 

“cut” rope sling. 

 For the reasons that follow, Grandslam’s motion for summary 

judgment will be granted, and SK’s motion for summary judgment 

will be denied.7

FACTUAL AND PROCEDURAL BACKGROUND 

A. SK’s Shipping Contract with LWI and Charter of the SANKO8

 SK Shipping, a company headquartered in Seoul, Korea, 

specializes in providing shipping services for owners of various 

commodities.9 (See SK’s SMF at ¶ 1; Pl.’s SMF at ¶ 1.) In early 

 

7 The Court heard oral argument upon both motions on November 24, 

2015. 

8 Although SK and Grandslam moved separately for summary 

judgment, each motion substantively relies upon the same factual 

record, and references the same deposition transcripts, 

agreements, and graphics. (Compare Grandslam’s SMF, with SK’s 

SMF.) For that reason, the Court will discuss the factual 

background relative to the pending motions together. 

9 The Court derives the undisputed facts stated herein from the 

parties’ various statements of material facts, affidavits, and 

exhibits, unless otherwise indicated, and recounts them in the 

manner most favorable to Plaintiff. However, the Court 

disregards, at it must, those portions of the parties’ 

statements of material facts that either lack citation to 

relevant record evidence and/or contain legal argument or 

conclusions. See generally L. CIV. R. 56.1(a). As a result, 

many aspects of SK’s and Plaintiff’s lengthy statements of 

material facts have been disregarded (at least in part) as 

plainly improper under Local Civil Rule 56.1(a), on account of 

their inclusion of legal argument, factual statements without 

accompanying record citations, and/or for otherwise reciting 

factual irrelevancies. (See, e.g., SK’s SMF at ¶¶ 23-24, 42, 

75, 91 (making legal arguments concerning the inferences and/or 

conclusions to be drawn from various pieces of evidence); Pl.’s 

Grandslam SMF at ¶¶ 17, 32, 43-47, 50, 79, 89-90 (setting forth 

“disputed facts” without accompanying record citations), ¶¶ 55, 

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2010, Liberty Woods contracted with SK to transport a ship-load 

of “plywood in bundles” from manufacturers in various ports in 

Malaysia and Indonesia to the United States. (See SK’s SMF at ¶ 

1; Pl.’s SMF at ¶ 1.) 

 In order to ship Liberty Woods’ plywood, SK Shipping 

entered into a “Time Charter” agreement with Sanko Steamship on 

October 2, 2010, in which it “time chartered” the SANKO, a bulk 

carrier made up of eight (8) discrete open-hatch cargo holds. 

(See Ex. C to SK’s SMF; Pl.’s SK SMF at ¶¶ 2-4; Grandslam’s SMF 

at ¶ 23; SK’s SMF at ¶ 53.) SK then separately arranged for 

“[a]t least 22,400 rope slings”10 to be delivered to the vessel 

by Hyundae Supply, the Korean entity that long-maintained SK 

Shipping’s inventory of “previously used slings.”11 (SK’s SMF at 

 

118-123 (making various legal arguments concerning Grandslam’s 

various duties); Pl.’s SK SMF at ¶¶ 90-95 (making various legal 

arguments, based upon “disputed facts” without accompanying 

record citations).)

10 In its reply briefing and at oral argument, SK made much of 

certain “shipment records” that indicate “that only 22,400 of 

the 24,945 slings (or 90%) of the slings” came from “SK’s 

inventory at Hyundae.” (SK’s Reply at 14.) SK, in turn, argues 

(without any citation to record evidence) that this discrepancy 

creates an inference that some portion of the rope slings used 

on the SANKO must have been new. (See id.) SK, however, 

simultaneous concedes (intentionally or otherwise) that the rope 

sling at issue here came from the 22,400 used slings provided by 

Hyundae. (See, e.g., SK’s SMF at ¶¶ 7, 38.) Nevertheless, 

because the parties do not genuinely dispute that the “cut” 

occurred from some factor other than prior use, SK’s claimed 

discrepancy has little impact on the pending motion. 

11 Plaintiff acknowledges that Hydunae’s services to SK 

ordinarily included sorting, inspecting, and testing SK’s 

inventory of previously used slings, but disputes the nature of 

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¶¶ 7, 12-13; see also Lee Dep. at 18:20-19:18; Ex. 20 to Pl.’s 

SK SMF (stating that Hyundae sorted only “used slings” for use 

on the SANKO).) These slings consisted of 22mm (7/8 inch) threestrand polypropylene rope, with a minimum rated breaking 

strength of 15,225 lbs.12 (See Att. C to Flory Rep.; SK’s SMF at 

¶ 9; Ex. 33 to Pl.’s Grandslam SMF (Bill of Lading relative to 

Hyundae’s shipment of rope slings).) 

B. SK’s Malaysian Loading Operations of the SANKO 

 In advance of shipping, the plywood manufacturer readied 

the plywood for shipment by stacking, banding, and covering 

sheets of plywood to create a rectangular bundle, which measured 

four feet in width, two feet in height, and eight feet in 

length, and weighed approximately 2,000 lbs. (See Att. C to 

Flory Rep.; SK’s SMF at ¶ 31; Pl.’s SK SMF at ¶ 31.) 

Independent foreign stevedores then loaded and stowed the 

SANKO’s hold with bundles of plywood (among other goods) in five 

 

the testing performed by Hyundae relative to the sling at issue 

here (see, e.g., Pl.’s Grandslam SMF at ¶ 41; Pl.’s SK SMF at ¶ 

36), because Hyundae itself stated that it only “sorted used 

slings per [its] strict standard” and then conducted (through 

another entity) a “sample [strength] test” of only a select few. 

(Exs. 20 & 24 to Pl.’s Grandslam SMF.) 

12 No party disputes the ordinary adequacy of these rope slings 

for purposes of the plywood bundles at issue here. (See SK’s 

SMF at ¶ 10; Pl.’s SK SMF at ¶ 10.) 

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ports throughout Malaysia and Indonesia.13 (See SK’s SMF at ¶ 

26; Grandslam’s SMF at ¶ 27; Pl.’s SK SMF at ¶ 26.) 

 As relevant here, cargo operations in Tanjung Manis, 

Malaysia took place from March 20, 2010 to March 25, 2010, under 

the supervision of SK’s Malaysian Port Captain Jeong Hyun Kim.14 

(See Grandslam’s SMF at ¶ 28; Pl.’s Grandslam SMF at ¶ 28; Kim 

Dep. at 104:8-113:19 (describing SK’s loading port captain 

duties relative to cargo operations).) Indeed, on the first day 

of cargo operations, Port Captain Kim performed a “visual” 

inspection of the rope slings, and then held a “pre-loading 

meeting” at which time he instructed cargo workers (including 

the Malaysian stevedores) to separate and discard any damaged 

slings.15 (Kim Dep. at 35:1-17, 45:22-46:2, 113:10-19; Ex. 22 to 

Pl.’s SK SMF (Kim Statement of Facts regarding cargo operations 

in Malaysia).) 

 Harmony Stevedoring then positioned barges alongside the 

SANKO and lifted, loaded, and stowed 10,176 plywood bundles—

 

13 These ports specifically included (1) Tawau, Malaysia; (2) 

Sandaken, Malaysia; (3) Samarinda, Indonesia; (4) Tanjung Manis, 

Malaysia; and (5) Bintulu, Malaysia. 

14 The focus of the discovery in this action, and the Court’s 

factual recitation, centers upon Tanjung Manis, because the 

parties agree that the pre-slung plywood bundle at issue in this 

litigation came aboard the SANKO in port at Tanjung Manis. 

(See, e.g., SK’s SMF at ¶ 27; Pl.’s SK SMF at ¶ 27.) 

15 Nevertheless, SK never received any reports of broken or 

problematic cargo pre-slings during loading operations in 

Tanjung Manis, nor at any other Malaysian port. (Grandslam’s 

SMF at ¶ 48; Pl.’s Grandslam SMF at ¶ 48.) 

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either by chains or rope slings—into one of SANKO’s eight cargo 

holds.16 (See Grandslam’s SMF at ¶¶ 32, 52; Pl.’s Grandslam SMF 

at ¶¶ 32, 52.) 

 Once loaded within the cargo hold, Harmony’s “loading 

longshoremen” then wrapped rope slings around the bundles and 

oriented the ends (or, eyes) of the slings on top, so that the 

bundles would be “pre-slung” and accessible for easy offloading 

in the port of destination.17 (SK’s SMF at ¶¶ 33-34; Ex. X to 

SK’s SMF (depicting the pre-slung cargo); Pl.’s SK SMF at ¶¶ 33-

34.) As a result of these efforts, all of the crated plywood 

loaded and stowed in port at Tanjung Manis18 ultimately consisted 

of pre-slung bundles.19 (See Grandslam’s SMF at ¶ 32; Pl.’s 

 

16 The Malaysian stevedores placed these plywood bundles on top 

of and covering the previously stowed cargo from prior ports. 

(See, e.g., Grandslam’s SMF at ¶ 56.) Following loading, the 

stevedores covered the plywood (and slings) with a layer of 

“‘Kraft’ paper” to protect it from any seawater that might leak 

through the hatch covers. (SK’s SMF at ¶ 55; see also Ex. X to 

SK’s SMF (depicting the loaded and covered cargo); Pl.’s SK SMF 

at ¶ 55.) 

17 LWI requested this pre-slinging as part of its standard 

practice in connection with crated plywood cargo. (Grandslam’s 

SMF at ¶¶ 37-38; Polatchek Dep. at 301:7-13, 327:15-328:8.) 

18 The cargoes carried aboard the SANKO in prior ports, by 

contrast, did not include any pre-slung cargoes (of the crated 

plywood variety or otherwise). (See Grandslam’s SMF at ¶ 35; Ex. 

19 to Grandslam’s SMF (setting forth the SANKO’s Voyage Memo); 

Pl.’s Grandslam SMF at ¶ 35.) 

19 As explained on the oral argument record of November 24, 2015, 

and in the parties’ various submissions, the Malaysian 

stevedores loaded some of the plywood bundles into the hold with 

the rope pre-slings already attached, while others were applied 

to the bundles after being stowed. (See, e.g., Pl.’s Grandslam 

SMF at ¶ 32.) 

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Grandslam SMF at ¶¶ 3, 32; Ex. S to SK’s SMF (depicting preslung plywood crates during loading in Tanjung Manis).) 

C. SK’s Camden Discharging Operations of the SANKO 

 Following an international voyage, the SANKO arrived at its 

first U.S. port of call, Pier 1 of the Broadway Terminal in 

Camden, on May 4, 2010. (See SK’s SMF at ¶ 40.) In order to 

unload the SANKO at the port, SK engaged DRS, a domestic 

stevedoring company that SK had engaged “on many prior 

occasions,” and one with extensive experience discharging preslung bundles of crated plywood. (SK’s SMF at ¶¶ 41, 67; see 

also Pl.’s SK SMF at ¶ 41, 67; Lee Dep. at 72:10-13.) DRS then 

selected the “‘plywood gear’” necessary to discharge cargo preslung with rope slings,20 a spreader and four yellow DRS nylon 

slings, and attached this gear to the SANKO’s crane hooks. 

(Grandslam’s SMF at ¶¶ 43, 59, 61; Pl.’s Grandslam SMF at ¶ 59; 

Exs. 20 & 21 to Grandslam’s SMF (depicting a crane hook, 

spreader, and four nylon slings, all connected to a pre-slung 

plywood bundle in Camden); SK’s SMF at ¶ 65.) In that way, the 

gear collectively used for the discharge of the plywood cargo 

consisted of various discrete components that DRS connected 

together, including: (1) SANKO’s crane and crane wire, (2) DRS’s 

 

20 In other words, DRS proceeded to cargo operations well aware 

of the pre-slung nature of the cargo within the SANKO’s holds. 

(See, e.g., Grandslam’s SMF at ¶ 66; Exs. 20 & 21 to Grandslam’s 

SMF.) 

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SK SMF at ¶ 43; Exs. 20 & 21 to Grandslam’s SMF.) 

 Prior to the start of discharging operations, however, SK’s 

U.S.-based Port Captain Se Jin Joo conducted a “pre-discharging 

meeting” at which time he instructed cargo workers (including 

DRS) to separate and discard any damaged slings. (Ex. 38 to 

Pl.’s SK SMF; Joo Dep. at 18:21-22:13.) DRS then selected its 

cargo gear, and commenced cargo operations under the supervision 

of five different DRS supervisors, and without significant 

guidance from Captain Joo and/or the SANKO’s officers and crew.22 

(See SK’s SMF at ¶¶ 42-43; Pl.’s SK SMF at ¶¶ 42-43; Grandslam’s 

SMF at ¶ 83.) These operations specifically began on May 5, 

2010, with “three gangs of [DRS] longshoremen” dispersed 

throughout SANKO’s cargo holds 3, 5, and 8, the SANKO’s cranes, 

as well as the terminal dock. (Grandslam’s SMF at ¶¶ 43, 59, 

61; Pl.’s Grandslam SMF at ¶ 59; SK’s SMF at ¶ 65; DiNapoli Rep. 

at ¶¶ 4-6.) 

 During the first day of cargo operations, discharging 

occurred in the following fashion: 

 

spreader bar’s four cargo hooks. (See Grandslam’s SMF at ¶ 82; 

Pl.’s Grandslam SMF at ¶ 82.) 

22 These supervisors (and their years of experience) specifically 

included (1) DRS Manager of Vessel Operations Michael Billups 

(10 years of experience); (2) DRS Stevedore Supervisor John 

Eberle (at least 30 years of experience); (3) DRS Staff 

Consultant Captain James Hassall (17 years of experience); (4) 

DRS Ship Foreman Donald Hankinson (47 years of experience); and 

(5) DRS Gang Foreman John Mulgrew (one of DRS’s “oldest and most 

experienced gang bosses”). (Grandslam’s SMF at ¶¶ 61, 68-76; 

Pl.’s Grandslam SMF at ¶ 61; SK’s SMF at ¶ 48.) 

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1. The DRS crane operator would lower the crane’s 

wire into one of the SANKO’s holds where DRS 

“hold persons” would connect the pre-slings to 

one of the hooks of the spreader bar by weaving a 

DRS nylon strap through the “eye loops” at the 

ends of the rope slings. (DiNapoli Rep. at ¶ 5; 

see also Flory Rep. at 2-6.) 

2. The crane operator would then lift the draft up 

and out of the hold, pivot the crane over the 

SANKO’s side, and slowly begin to lower the cargo 

towards the dock. (DiNapoli Rep. at ¶ 5; see 

also Flory Rep. at 2-6.) 

3. As the load approached the surface of the dock 

(commonly referred to as “the hammer” or 

“doorway”), DRS’s “doorway persons” would turn 

the load to orient it for easy removal by a fork 

lift, and would then disconnect the rope slings 

from the spreader/nylon strap assembly. (See 

DiNapoli Rep. at ¶ 6; see also Flory Rep. at 2-

6.) 

4. Following this, the crane operator would lift the 

spreader/nylon strap assembly back over the 

SANKO’s side and into one of the holds for 

assembly of the next load, while DRS’s “checker” 

would record the contents of the landed draft on 

the pier. (See DiNapoli Rep. at ¶ 6; see also 

Ex. 25 to Grandslam’s SMF (setting forth DRS’s 

tally reports for its cargo operations); see also 

Flory Rep. at 2-6.) 

In that way, only DRS’s “hold persons” within the cargo holds 

had a view of the condition of the rope slings at the time of 

discharge: first, when the “hold persons” connected the rope 

sling to the spreader through the nylon strap (thereby 

potentially exposing the portion of the rope slings nearest to 

the “eyes”); and then again when the load began its ascent out 

of the cargo hold (thereby exposing the portion of the rope 

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slings that covered the bottom of the plywood bundles).23 (See 

Grandslam’s SMF at ¶¶ 87-90; Pl.’s Grandslam SMF at ¶¶ 87-90.) 

 Productive cargo operations unfolded in this fashion until 

late in the evening on May 5, 2010, and then continued on May 6, 

2010 throughout cargo holds 1, 2, 3, 5, and 7. (See, e.g., Ex. 

18 to Grandslam’s SMF (setting forth DRS’s activity reports).) 

Indeed, during these first two days of cargo operations, DRS 

discharged more than 6,400 crates of pre-slung plywood cargo, 

and reported no issues relative to the cargo pre-slings (or 

otherwise).24 (See Grandslam’s SMF at ¶¶ 60, 86, 95, & 100.) 

1. The “cut” sling and Plaintiff’s Injuries 

 Circumstances changed, however, when the DRS crew led by 

DRS Gang Foreman John Mulgrew (hereinafter, “Foreman Mulgrew” 

and his “Mulgrew crew”) resumed discharging pre-slung bundles 

from cargo hold 2 on May 7, 2010. (See SK’s SMF at ¶ 72; Ex. Z 

to SK’s SMF (setting forth DRS’s activity report); Grandslam’s 

SMF at ¶ 93; Pl.’s Grandslam SMF at ¶ 93.) On that day, the 

Mulgrew crew consisted of two “hold over” longshoremen, Daniel 

 

23 As discussed below, the parties genuinely dispute whether the 

location of the “cut” made it more likely than not that the 

“hold persons” would have or should have noticed it. 

24 DRS supervisors expected DRS’s “hold persons” to look at the 

pre-slings and to systematically remove and replace any cut or 

damaged pre-slings. (See Grandslam’s SMF at ¶¶ 97-99; Pl.’s 

Grandslam SMF at ¶¶ 97-99.) Indeed, DRS considered the removal 

of cut or damaged cargo pre-slings part of its normal 

discharging process. (See Grandslam’s SMF at ¶ 99; Pl.’s 

Grandslam SMF at ¶ 99.) 

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Mortorano and Fred McAllister, two “door” longshoremen, George 

Matthews and Plaintiff, and one crane operator, Leo Mullen (see 

Grandslam’s SMF at ¶¶ 100-105; Pl.’s Grandslam SMF at ¶¶ 100-

105; SK’s SMF at ¶¶ 66-68, 76), and discharging proceeded 

largely as usual for much of the morning. Indeed, at 

approximately 9:30 A.M., the DRS “hold over” longshoremen 

approached a plywood draft, looked at and handled the cargo 

slings, and then connected the rope sling to the hook of the 

cargo spreader with DRS’s nylon strap. (See Mortorano Dep. at 

89:12-22; McAllister Dep. at 65:10-24, 68:8-21, 69:7-19; SK’s 

SMF at ¶¶ 79-80; Grandslam’s SMF at ¶¶ 101-103.) 

 DRS crane operator Mullen then lifted the draft from the 

hold in two phases: first, he lifted the draft high enough to 

allow the “hold over” longshoremen to inspect the slings at the 

bottom of the draft; then, he lifted the draft out of cargo hold 

2, swung the draft over towards the pier, and began to lower 

it.25 (See Mullen Dep. at 62:18-70:17; Grandslam’s SMF at ¶ 104; 

Pl.’s Grandslam SMF at ¶ 104.) At that time, Plaintiff, as the 

“doorway” longshoreman, approached the descending draft with his 

arms extended, in order to reach and “spin” the draft into 

 

25 Plaintiff concedes that the SANKO’s crane (and crane 

operation) “had nothing whatsoever to do with [his] accident.” 

(Grandslam’s SMF at ¶ 115; Pl.’s Grandslam SMF at ¶ 115.) 

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position on the pier.26 (Pl.’s Dep. at 170:20-172:4, 192:24-

194:1, 286:3-16.) As the draft came within one to two feet from 

Plaintiff’s grasp, he heard a “‘pop’” and watched the plywood 

draft shift towards him, ultimately striking him on the legs. 

(SK’s SMF at ¶ 83.) 

 Following this incident (and Plaintiff’s removal by 

ambulance), the DRS supervisors examined the “parted sling” in 

the presence of SK Port Captain Joo, and discovered that it had 

somehow been “cut” through 80% of its thickness just below one 

of the “eyes.”27 (Billups Dep. at 131:1-132:3, 144:5-18; see 

also SK’s SMF at ¶¶ 84-85; Pl.’s SK SMF at ¶¶ 84-85; Grandslam’s 

SMF at ¶¶ 105, 108.) Nevertheless, DRS deemed the failed sling 

a “one off” or “fluke” incident, and the DRS supervisors made 

the decision to continue their use of the rope pre-slings in 

connection with the cargo operations. (Grandslam’s SMF at ¶ 

 

26 Despite the fact that Plaintiff testified to routinely 

standing underneath drafts of descending plywood, Plaintiff 

disputes whether Plaintiff stood directly underneath the 

disputed draft in this instance. (Compare SK’s SMF at ¶¶ 68-69, 

with Pl.’s SMF at ¶¶ at 68-69.) This dispute, however, has no 

impact on the disposition of the pending motions, because no 

party advances the position that this entire incident would have 

been avoided by a slight change in Plaintiff’s physical position 

on the pier. 

27 The parties engaged in a protracted period of discovery 

relative to Plaintiff’s initial position that the parted sling 

parted on account of its frayed and worn condition. 

Nevertheless, Plaintiff and his expert ultimately conceded that 

the fibers of the rope sling had been cut, and that the cut 

occurred prior to SANKO’s arrival in port at Camden. (See, 

e.g., Pl.’s SK SMF at ¶¶ 85-86.) The actual source and timing 

of the cut, by contrast, remains unknown. 

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109; Pl.’s Grandslam’s SMF at ¶ 109; SK’s SMF at ¶ 84; Pl.’s SK 

SMF at ¶ 84.) At 2:00 P.M. on the same day, however, a second 

rope pre-sling failed, and DRS Captain Hassall “immediately” 

directed DRS’s crews to cease all discharging.28 (Hassall Dep. 

at 126:1-10.) DRS then made the decision, together with SK Port 

Captain Joo, to use steel chains to discharge the remainder of 

cargo. (See Grandslam’s SMF at ¶¶ 111-12; Pl.’s Grandslam SMF 

at ¶¶ 111-12; Hassall Dep. at 128:8-130:14.) 

 Following this incident, Plaintiff filed this litigation, 

claiming that he suffered an array of orthopedic, neurological, 

and internal injuries,29 on account of the “carelessness and 

negligence” of Grandslam and SK.30 (Second Am. Compl. at ¶¶ 26-

28.) The parties thereafter proceeded to an extended period of 

pretrial discovery, and the pending motions followed. 

STANDARD OF REVIEW 

Summary judgment is appropriate if “there is no genuine 

issue as to any material fact and the moving party is entitled 

to judgment as a matter of law.” Alabama v. North Carolina, 560 

 

28 The parties provide no detail regarding the condition of this 

second “parted” sling. 

29 These injuries allegedly include “crushing injuries to his 

right hip, right ribcage, cervical, thoracic and lumbar spines,” 

and left ankle. (Second Am. Compl. at ¶ 28.) 

30 Grandslam, SK, and the other Defendants, in turn, asserted a 

series of Crossclaims against each other for contribution and/or 

indemnification. [See, e.g., Docket Items 87, 88, & 89.] 

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U.S. 330, 344 (2010) (citations and internal quotation marks 

omitted); see also FED. R. CIV. P. 56(a). 

In evaluating a motion for summary judgment, the Court must 

view the material facts in the light most favorable to the nonmoving party, and make every reasonable inference in that 

party’s favor. See Scott v. Harris, 550 U.S. 372, 378 (2007); 

Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). An 

inference based upon “‘speculation or conjecture,’” however, 

“‘does not create a material factual dispute sufficient to 

defeat summary judgment.’” Halsey, 750 F.3d at 287 (citations 

omitted). Rather, the non-moving party must support each 

essential element with concrete record evidence. See Celotex 

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

“Where the record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party,” the 

Court may grant summary judgment. Matsushita Elec. Indus. Co., 

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

DISCUSSION 

 In simple terms, this action centers upon which entity, if 

any of the present Defendants, bears some legal responsibility 

for the failed rope sling that caused Plaintiff’s injuries. 

This inquiry, in turn, requires a consideration of the various 

duties imposed upon the players most routinely involved in 

maritime shipping—the “bareboat” charterer/owner pro hac vice, 

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the “time charterer,” and the stevedores. For that reason, the 

Court will first introduce the relevant framework, prior to 

turning to the specific contours of the duties owed by Grandslam 

and SK in this instance. 

A. Section 905(b) Duties under the LHWCA, Generally 

 Throughout much of the 1900s, the admiralty doctrine of 

unseaworthiness effectively placed absolute liability upon a 

shipowner (and related entities) for injuries sustained by 

longshoreman and other non-seamen working on board a vessel 

while in port.31 See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 

90-94 (1946) (discussing the doctrine of unseaworthiness); see 

also Marroquin v. Am. Trading Trans. Co., Inc., 711 F. Supp. 

1165 (E.D.N.Y. 1988) (discussing pre-LHWCA admiralty law). 

 The enactment of the 1972 Amendments to the LHWCA, however, 

spelled the “demise” of an injured longshoreman’s right to 

maintain a cause of action for unseaworthiness. Normile v. 

Maritime Co. of Philippines, 643 F.2d 1380, 1380 (9th Cir. 

1981); see also 33 U.S.C. § 905(b). The LHWCA took away, in 

particular, absolute liability for injured longshoremen, and 

substituted a comprehensive statutory workers’ compensation 

 

31 Although dressed in admiralty terms, the doctrine of 

unseaworthiness constituted merely a species of negligence, 

imposing strict liability upon a vessel owner for failure to 

supply a seaworthy vessel, equipment, and/or crew. See 

Smallwood v. Am. Trading & Transport Co., 839 F. Supp. 1377, 

1379 (N.D. Cal. 1993) (discussing “the tortuous history of 

negligence and unseaworthiness in admiralty law”). 

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scheme that restricts an injured longshoreman’s ability to 

maintain a cause of action against a vessel owner or its agents 

to instances in which one of those entities acted negligently in 

relation to the injury.32 See Hill v. Reederei F. Laeisz 

G.M.B.H., Rostock, 435 F.3d 404, 406 (3d Cir. 2006); see also 33 

U.S.C. § 905(b) 

 Section 905(b) codifies the exclusive remedy for 

longshoremen, and specifically provides in pertinent part: 

In the event of injury to a person covered under this 

chapter caused by the negligence of a vessel, then 

such person, or anyone otherwise entitled to recover 

damages by reason thereof, may bring an action against 

such vessel as a third party in accordance with the 

provisions of section 933 of this title.... The remedy 

provided in this subsection shall be exclusive of all 

other remedies against the vessel except remedies 

available under this chapter. 

33 U.S.C. § 905(b) (emphases added). The LHWCA, in turn, 

defines a “vessel” within the meaning of section 905(b) to 

include “vessel’s owner, owner pro hac vice, agent, operator, 

charter or bare boat charterer, master, officer, or crew 

member.” 33 U.S.C. § 902(21) (emphases added). Although 

several courts have identified certain ambiguity in the 

definition of “vessel” under the LHWCA, extant authority 

reflects that the LHWCA plainly includes “time charterers” and 

 

32 In other words, the 1972 amendments to the LHWCA fundamentally 

changed the nature of third-party negligence actions initiated 

by longshoremen. See Howlett v. Birkdale Shipping Co., 512 U.S. 

92, 97 (1994) (describing the “fundamental changes”). 

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“bareboat charterers,” as here, within its statutory scope.33 

See, e.g., Hudson v. Schlumberger Tech. Corp., 452 F. App’x 528, 

536 (11th Cir. 2011); Becker v. Tidewater, Inc., 586 F.3d 358, 

373 (5th Cir. 2009); Rodriguez v. Bowhead Trans. Co., 270 F.3d 

1283, 1286 (9th Cir. 2001); Hines v. British Steel Corp., 907 

F.2d 726, 729 (7th Cir. 1990); Kerr–McGee v. Ma–Ju Marine 

Servs., Inc., 830 F.2d 1332, 1338–39, 1343 (5th Cir. 1987); 

Migut, 571 F.2d at 356. Nevertheless, relevant precedent 

limits, in different ways, the types of negligence for which 

longshoremen can sue vessel owners, charterers, and the like. 

 In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 

156 (1981) and Howlett v. Birkdale Shipping Co., 512 U.S. 92 

 

33 Differences emerge in how courts rationalize this 

interpretation, with some courts including “time charterers” by 

reference to the LHWCA’s express language, while others include 

“time charterers” by extension of the LHWCA’s intended purpose. 

In Migut v. Hyman-Michaels Co., 571 F.2d 352 (6th Cir. 1978), 

for example, the Court of Appeals for the Sixth Circuit 

determined that the definitional provisions of the LHWCA 

included, in essence, a typographical error, and construed the 

statute as covering time charterers rather than simply a 

“charter.” Id. at 355-56. In Dougherty, by contrast, a judge 

of the Eastern District of Pennsylvania construed the LHWCA to 

include “time charterers” on account of the LHWCA’s manifest 

purpose of enabling longshoremen to sue negligent third parties 

for injuries. 622 F. Supp. at 1. Despite these differences, 

the salient conclusion remains that “time charterers” fall 

within the statutory coverage of liability under section 905(b) 

of the LHWCA. As explained below, however, the sphere of duties 

changes dramatically depending upon the nature of the “vessel”-

based entity sued. For that reason, and as discussed below, 

Grandslam’s duties under section 905(b) as the “bareboat 

charterer” differ from the section 905(b) duties imposed upon SK 

as the “time charterer.” 

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(1994), both landmark cases, the Supreme Court concluded that 

“vessels” within the meaning of section 905(b) owe three general 

duties to longshoremen:34 (1) a “turnover duty,” which relates to 

the condition of the ship upon commencement of stevedoring 

operations and includes a corollary duty to warn; (2) an “active 

operations duty,” which requires that a “vessel” exercise 

reasonable care to prevent injuries to longshoremen in areas 

that remain under the “active control of the vessel;” and (3) a 

“duty to intervene,” which imparts an obligation upon the 

“vessel” to intervene in certain circumstances in areas under 

the principal control of the independent stevedore.35 Howlett, 

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

 

34 These general duties, as explained below, apply absent a 

contractual provision, positive law, or custom to the contrary. 

See Scindia, 451 U.S. at 172. 

35 SK claims that the Scindia duties do not squarely apply to it, 

given the “necessarily different and more limited” capacity of a 

time charterer (as opposed to Grandslam’s more encompassing role 

as “bareboat charterer”). (SK’s Br. at 24-25.) Plaintiff, in 

response, advances inconsistent positions: arguing at great 

length that the Scindia defines the contours of SK’s duties (see 

Pl.’s SK Opp’n at 21-32), and then contrarily stating that the 

general “maritime negligence standard” of reasonable care 

governs SK rather than the Scindia duties. (Id. at 32-33.) The 

Court recognizes that neither Scindia nor Howlett involved a 

time charterer, and that in Kerr-McGee, the Court of Appeals for 

the Fifth Circuit expressed its view that Scindia “does not 

[expressly] set the duty of time-charterers.” 830 F.2d at 1340 

n.8 (“Though the Supreme Court used the word ‘vessel’ throughout 

its opinion, the context of the case, as well as the Court’s 

alternate use of ‘shipowner’ throughout its opinion suggest that 

the duties prescribed in Scindia apply only to true owners.”). 

Nevertheless, in Kerr-McGee, the Court of Appeals for the Fifth 

Circuit went on to determine the time charterer’s duty within 

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 Plaintiff alleges in this instance that Grandslam and SK 

each breached their turnover duty relative to pre-slung plywood 

cargo.36 The nature of this duty, in turn, splinters in relation 

to Grandslam and SK. The Court now turns to the particular 

nuances relative to each moving Defendant, and then to whether 

issues of fact preclude summary judgment in favor of each 

Defendant. 

1. Turnover Duty of Grandslam, the “bareboat charterer” 

 Based upon a “vessel owner’s” or “bareboat charterer’s” 

heightened control over a vessel, in Howlett, the Supreme Court 

explained the relevant turnover duty as follows: 

A vessel must ‘exercise ordinary care under the 

circumstances’ to turn over the ship and its equipment 

and appliances ‘in such condition that an expert and 

experienced stevedoring contractor, mindful of the 

dangers he should reasonably expect to encounter, 

arising from the hazards of the ship’s service or 

otherwise, will be able by the exercise of ordinary 

 

the same analytical framework as the Scindia Court. Id. at 

1341-43. Even more, robust authority following and applying 

Scindia plainly reflects the nuanced duty analysis relative to 

time charterers and owners pro hac vice. See, e.g., Becker, 586 

F.3d at 373 (describing the difference analysis, in light of the 

differences in scope of authority and responsibility). As a 

result, this dispute has little practical value here, because 

the essential analysis relative to SK’s conduct remains the 

same, whether denominated as a Scindia analysis or one under 

more general maritime negligence principles. See Hines, 907 

F.2d at 729 (concluding that the Scindia principles “apply with 

equal force” to a time charterer). 

36 Plaintiff concedes that the “active operations duty” and the 

“duty to intervene” have no application to the facts of this 

litigation. (See Pl.’s SK Opp’n at 2, 28-32; Pl.’s Grandslam 

Opp’n at 2, 26-33.) 

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care’ to carry on cargo operations ‘with reasonable 

safety to person and property.’ 

512 U.S. at 98 (citation omitted and emphasis added). The 

turnover duty thus includes the logical corollary that the 

vessel “warn the stevedore” of any known or knowable hazards on 

the ship or with respect to its equipment, that (1) “would 

likely be encountered by the stevedore in the course of his 

cargo operations,” that (2) “would not necessarily be known by 

the stevedore,” and that (3) “would not [otherwise] be obvious 

to or anticipated by [the stevedore] if reasonably competent in 

the performance of his work.” Id. (citation and internal 

quotations omitted); see also See Serbin v. Bora Corp., 96 F.3d 

66, 70 (3d Cir. 1996) (citation omitted) (“The turnover duty 

comprises ‘both a duty to provide safe conditions and a 

corollary duty to warn of known, non-obvious hazards’ in 

instrumentalities and areas ‘turned over’ to the stevedore’s 

control.”) 

 For that reason, the turnover duty proves narrow when the 

alleged defect occurs in the cargo stow or cargo area (an area 

typically within the purview of the stevedores) rather than in 

the ship’s gear, equipment, tools, or work space (an area 

typically under the control of the vessel owner or owner pro hac 

vice). Indeed, binding case law from the Supreme Court and 

Court of Appeals for the Third Circuit articulates three 

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guideposts critically relevant to the disposition of Grandslam’s 

motion. 

 First, the vessel owner/owner pro hac vice “has no general 

duty” to supervise, inspect, or discover dangerous conditions 

“that develop within the confines of the cargo operations,” a 

task routinely “assigned to the stevedore.” Scindia, 451 U.S. 

at 172. Second, “the shipowner has no duty to supervise or 

inspect cargo loaded or unloaded by stevedores and therefore may 

not be held liable for injuries arising out of the stevedore’s 

[own] failure” to properly perform its function. Derr v. 

Kawasaki Kisen K.K., 835 F.2d 490, 493 (3d Cir. 1987). Third, 

the turnover duty relative to defects in cargo operations 

“attaches only to latent hazards,” i.e., not known, obvious, or 

anticipated conditions, and “encompasses only those hazards” 

that the vessel owner/owner pro hac vice knew of or should have 

known of “in the exercise of reasonable care.” Howlett, 512 

U.S. at 105. 

 Stated differently, in order to succeed on a claim against 

Grandslam for breach of the turnover duty, Plaintiff must show: 

(1) that a defect in the vessel, its equipment, or a latent 

defect in the cargo area caused the accident; (2) that the 

vessel owner/owner pro hac vice knew about the hazard or should 

have discovered it before turning over the vessel to the 

stevedore; (3) that the known or knowable hazard constituted one 

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of the type that the stevedoring company would likely or 

ordinarily have encountered in the course of cargo operations; 

and (4) that the hazard would not have been obvious to or 

anticipated by a reasonably competent stevedore. See Mullen v. 

Alicante Carrier Shipping Corp., No. 02-6722, 2004 WL 1737493 

(E.D. Pa. Aug. 3, 2004) (citing Hill v. NSB Niederelbe 

Schiffahrtsges. MBH & Co., No. 02-2713, 2003 WL 23162396, at *3 

(E.D. Pa. Dec. 30, 2003)). 

a. Plaintiff cannot establish a prima facie breach 

of Grandslam’s turnover duty 

 Plaintiff’s claim relative to Grandslam hinges, in its 

entirety, upon his position that (1) Grandslam had an obligation 

under Scindia (and its progeny) to inspect the rope slings as 

part of the SANKO’s equipment, and that (2) certain safety and 

operations procedures imparted an obligation upon Grandslam to 

supervise the stevedores’ cargo operations. (See Pl.’s 

Grandslam Opp’n at 26-31, 37-38.) Nevertheless, neither of 

Plaintiff’s positions find support in law or in the evidence 

proffered in this case, and so neither aspect presents an issue 

to be resolved by the factfinder at trial. 

 The Court notes, at the outset, that the damaged rope sling 

came aboard the SANKO after the vessel had been turned over to 

SK and the independent stevedores hired by SK, and during cargo 

operations in which Grandslam played no role (as a supervisor or 

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29 

otherwise). (See Grandslam’s SMF at ¶¶ 49-51, 116; Pl.’s 

Grandslam SMF at ¶¶ 49-51, 116.) Grandslam had turned the 

vessel over to SK before the plywood and slings were onloaded in 

Malaysia. (See Grandslam’s SMF at ¶¶ 49-51, 116; Pl.’s 

Grandslam SMF at ¶¶ 49-51, 116.) Indeed, it is undisputed that 

Grandslam had no access to or control over the cargo rope slings 

that came aboard the vessel for the first time during the 

loading operations of Malaysian stevedores. (See Grandslam’s 

RSMF at ¶ 118; Pl.’s Grandslam SMF at ¶ 33.) As a result, 

Plaintiff has not, and cannot, demonstrate that a hazard known 

or knowable to Grandslam existed on the SANKO prior to turnover. 

Rather, the undisputed record evidence plainly reflects that the 

hazardous condition (e.g., the “cut” rope sling) was introduced 

into the vessel after turnover, and in relation to an implement 

unconnected to the vessel, its equipment, or the cargo area.37

 

37 The Court finds no support for Plaintiff’s position that the 

rope slings constituted part of the SANKO’s equipment rather 

than part of the cargo. (See Pl.’s Grandslam Opp’n at 26-29.) 

Indeed, Plaintiff concedes that only SK owned, selected, 

purchased, and provided the rope slings for use by the Malaysian 

stevedores, and that these slings came onboard the SANKO for the 

first time during cargo operations. (See Pl.’s Grandslam SMF at 

¶¶ 33, 36, 50.) The Captain of the SANKO, its Chief Officer, 

and the DRS Captain then all consistently testified that the 

rope slings were not part of SANKO’s equipment, and instead came 

aboard the SANKO as part of the cargo and solely for the purpose 

of discharging the cargo. (Valencia Dep. at 35:24-36:12, 

Purificacion Dep. at 24:6-14; Hassall Dep. at 197:8-15.) 

Plaintiff mounts no genuine challenge to this version of events, 

nor proffers any fact to suggest any involvement by Grandslam in 

the Malaysian cargo operations (or in any other way relevant to 

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 Even more critically, in Howlett, the Supreme Court 

expressly rejected the notion that a vessel owner’s turnover 

duty required it “to supervise the ongoing operations of the 

loading stevedore (or other stevedores who handle the cargo 

before its arrival in port) or inspect the completed stow.” 512 

U.S. at 105. Plaintiff’s argument, by contrast, invites the 

 

the rope slings). (See generally Pl.’s Grandslam SMF.) Rather, 

Plaintiff relies upon certain case and regulatory support—

Prinski v. Blue Star Line Marine Ltd., 341 F. Supp. 2d 511 (E.D. 

Pa. 2004), Revak v. Interforest Terminal UMEA AB, No. 03-4822, 

2009 WL 1362554 (E.D. Pa. May 14, 2009), and the Safety and 

Health Regulations for Longshoring, 29 C.F.R. § 1981, et seq. 

(hereinafter, the “OSHA regulations”)–that does not advance his 

position. (See Pl.’s Grandslam Opp’n at 26-28.) Indeed, Prinski 

involved a defect in permanent parts of the vessel’s physical 

structure (specifically steel archways on the main deck), 341 F. 

Supp. 2d at 514, and not cargo slings that came aboard only as a 

result of independent cargo operations (as here). In Revak, by 

comparison, the parties presented evidence that the “vessel 

leased the [broken] sling,” “provided the [broken] sling to the 

stevedores,” and “had the most direct access to and control over 

the [broken] sling.” 2009 WL 1362554, at *7. As a result, the 

Revak court found an issue of fact on whether the broken sling 

constituted equipment. Id. Here, by contrast, Plaintiff 

concedes that none of the facts present in Revak exist here, 

except that Revak also involved a parted sling. (See Pl.’s 

Grandslam SMF at ¶¶ 33, 36, 50.) Finally, in relation to the 

OSHA regulations, the Court need only briefly mention that those 

regulations imposed obligations upon DRS as the stevedore 

employer and not Grandslam. See, e.g., 33 C.F.R. § 

1918.62(d)(1)-(3). Beyond these plainly distinguishing 

features, defining the SANKO’s equipment to include the rope 

slings at issue here would contravene the allocation of fault 

embodied by the LHWCA, because the injury here occurred outside 

Grandslam’s traditional sphere of operation (the cargo area) and 

because of an instrument (a rope sling) to which it had no 

access or control. See Howlett, 512 U.S. at 101-05 (explaining 

that the LHWCA attempts to place liability for injuries upon the 

party that most controls the areas and instrumentalities 

involved in the injuries). 

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Court to reach the opposite conclusion, and specifically to 

conclude that Grandslam’s turnover duty required it to 

continuously supervise the Malaysian stevedore and to inspect 

the cargo pre-slings that came aboard the SANKO for the first 

time during cargo loading operations. (See generally Pl.’s 

Grandslam Opp’n at 26-31, 37-38.) Such a requirement, however, 

would require vessels “to exercise scrutiny over a cargo loading 

operation” and “to inject themselves into matters beyond their 

ordinary province.” Howlett, 512 U.S. at 103. Indeed, 

attributing a supervisory duty under these facts would “saddle 

[Grandslam] with precisely the sort of nondelegable duty that 

Congress sought to eliminate” through enactment of the LHWCA. 

Scindia, 451 U.S. at 169. The Supreme Court considered and 

rejected this precise sort of argument in Howlett, under facts 

even more supportive of the longshoremen than present here, and 

Plaintiff’s position would run directly contrary to the Supreme 

Court’s interpretation of the LHWCA.38 

 

38 In Howlett, the Supreme Court found that plastic sheeting 

supplied by the vessel and placed underneath cargo bags 

constituted part of the cargo stow (as opposed to the vessel’s 

equipment). 512 U.S. at 94-105. Despite agreeing that the 

vessel had “no obligation to supervise and inspect cargo loading 

operations” and no constructive knowledge of any hazard, the 

Supreme Court ultimately vacated and remanded the lowers’ courts 

grant and affirmance of summary judgment in favor of the vessel 

owner, on account of the fact that the lower courts did not 

address the fact that crew members testified to observing the 

plastic sheeting during loading operations (thereby creating the 

possible inference of actual knowledge on the part of the vessel 

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 Simply put, Grandslam, after turnover to SK, had no duty to 

oversee the Malaysian stevedores that loaded the shipment of 

pre-slung plywood at issue in this action, and Plaintiff has 

advanced no fact suggesting that Grandslam had actual and/or 

constructive knowledge of the “cut” rope sling (a condition 

that, again, arose in connection with this vessel after the 

SANKO’s turnover). As a result, Plaintiff cannot, as a matter 

of law, demonstrate that Grandslam breached its turnover duty 

under Scindia (and its progeny). 

b. No contract, positive law, or custom supplants 

the application of the general duties under 

Scindia 

 Nor can the Court find that Grandslam’s safety management 

system procedures created an independent custom or contractual 

obligation to supervise the stevedores’ cargo operations. (See 

generally Pl.’s Grandslam Opp’n at 30-31.) 

 In Scindia, the Supreme Court made clear that its duties 

apply “absent contract provision, positive law, or custom to 

contrary.” 451 U.S. at 172. Although Scindia does not define 

the type of custom or contract that could alter Grandslam’s duty 

to longshoremen under section 905(b), no provisions impose such 

a heightened duty in this instance. 

 

owner). Id. at 105-06. Plaintiff has presented no such 

evidence here, and in fact concedes quite the opposite. 

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 Indeed, no contract exists between Grandslam and DRS, nor 

has Plaintiff identified any conduct that suggests a custom of 

enhanced supervision over stevedoring affairs. Rather, 

Plaintiff takes the position that three isolated provisions 

within the SANKO’s internal safety management procedures and 

cargo plans somehow create an expansive duty of care beyond that 

of Scindia and Howlett.39 (See Pl.’s Grandslam Opp’n at 30-31.) 

 

39 On the oral argument record of November 24, 2015 and briefly 

in his opposition, Plaintiff argued that the International 

Safety Management (hereinafter, “ISM”) Code constitutes positive 

law that creates duties in excess of the LHWCA and general 

maritime law. (See Pl.’s Grandslam Opp’n at 30.) On both 

occasions, however, Plaintiff referenced the ISM Code only by 

name, and provided no citation or discussion of any allegedly 

relevant provisions. (See, e.g., Pl.’s Grandslam Opp’n at 30.) 

Congress codified the ISM code by statute, 46 U.S.C. §§ 3201-

3025, and through federal regulations, 33 C.F.R. §§ 96.200-

96.390. Few courts have addressed whether the ISM Code, as 

codified, creates duties running from vessels to longshoremen in 

excess of those set out in the LHWCA. Nevertheless, every 

federal court that has addressed this issue has concluded that 

it does not. See, e.g., See Horton v. Maersk Line, Ltd., 603 F. 

App’x 791, 797 (11th Cir. 2015) (rejecting the ISM Code as a 

basis for a negligence claim in excess of the LHWCA and Scindia, 

and citing supportive cases); Aronson v. Celebrity Cruises, 

Inc., 30 F. Supp. 3d 1379, 1396 (S.D. Fla. 2014) (“[T]he 

International Safety Management Code does not create any duties 

and thus cannot be the basis for a negligence claim against a 

cruise line.”); Rinker v. Carnival Corp., 753 F. Supp. 2d 1237, 

1243 (S.D. Fla. 2010) (“Plaintiff has failed to present any 

authority that establishes that the [Code] creates any duties 

that Carnival owes to Plaintiff.”); Calderon v. Offen, No. 07–

61022, 2009 WL 3429771, at *4 (S.D. Fla. Oct. 20, 2009) 

(“Congress merely desired to participate with other maritime 

nations in achieving safety goals [through the Code], but did 

not intend to change long-established rules of law which govern 

liability and its allocation in general maritime law.”); Johnson 

v. Horizon Lines, LLC, 520 F. Supp. 2d 524, 533 (S.D.N.Y. 2007) 

(finding that the regulations implemented under the ISM Code 

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Plaintiff references, in particular, the language in the 

Management of Safe Operation Rules that states that “the Chief 

Officer shall control and supervise cargo operations” (Ex. 30C 

to Pl.’s Grandslam SMF at § 7.2.1); the provision in the 

Procedure for Bulk Carrier/Cargo Ship Cargo Operations that 

notes that “[t]he Master shall assume overall responsibility for 

supervising the cargo operation in bulk carriers and other cargo 

ships and shall confirm such work result...” (Ex. 31 to Pl.’s 

Grandslam SMF at § 3); and the part of the Cargo Operation Plan 

for Unloading Plywood in Crates that directs “Officers and Crew 

on Duty” to “secure the safety of personnel[] working with the 

cargo” and to ensure “safe operation” of the “equipment[] and 

tools for cargo operation.” (Ex. 32 to Pl.’s Grandslam SMF at § 

JJ (emphasis in original).) 

 Even a cursory inspection of these documents reveals that 

they amount to little more than an instructional guide to 

provide direction to the ship’s officers, and not a contract 

with any other entity nor any effort to modify maritime custom 

relative to cargo discharging operations. (See Exs. 30C, 31, & 

 

were “cast in general terms which restate principles already 

well established by American case law,” and thus should not be 

construed as imposing additional duties). Because Plaintiff has 

not cited any specific portion of the ISM Code that provides 

support for the duty he alleges, nor any precedent that 

recognizes the ISM Code as a basis for a negligence claim, this 

Court joins the weight of authority in finding that the ISM Code 

provides him with no relief. 

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32 to Pl.’s Grandslam SMF.) Indeed, these documents do not 

mention longshoremen, the stevedores, or cargo-oriented tools 

(like, rope slings), and they speak primarily (if not 

exclusively) in terms of the SANKO crews’ responsibility for the 

SANKO equipment used in connection with cargo operations (like, 

the crane, hatch covers, and deck lights). In that way, when 

viewed as a whole, each document reflects an obvious intention 

to remind the SANKO’s officers and crew of the importance of 

conscientiousness in the high-risk world of international 

maritime travel. (See, e.g., Ex. 30C at § 1.) 

 Indeed, because the vessel and its crew cannot remain 

entirely “detached from cargo operations,” vessels routinely 

take “responsibility” for preparing cargo-oriented plans and 

safety procedures. Howlett, 512 U.S. at 103. Nevertheless, 

vessel owners construct these documents with the expectation 

that “the stevedore, the independent contractor hired for its 

expertise in the stowage and handling of cargo,” will be 

“charged with actual implementation” of the various procedures. 

Id. And, because Plaintiff has identified no actions by 

Grandslam in relation to cargo operations, the undisputed record 

supports only that conclusion. 

 For these reasons, the Court finds Plaintiff’s reliance 

upon internal safety guides misplaced as a basis to enhance the 

otherwise-applicable Scindia duties. See Goldsmith v. Swan 

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Reefer A.S., 173 F. App’x 983, 988 (3d Cir. 2006) (declining to 

conclude that a contract between parties other than the 

stevedore, and not enacted for its benefit, expanded a vessel’s 

duty relative to the safety of longshoremen); Mullen v. Alicante 

Carrier Shipping Corp., No. 02-6722, 2004 WL 1737493 (E.D. Pa. 

Aug. 2, 2004) (examining the contract provision exception in 

Scindia, and determining that it only applies if the contract 

provision specifically involves a duty to discover dangerous 

conditions related to longshoremen); Horton, 603 F. App’x at 

796-97 (rejecting a ship’s safety manuals and the ISM Code as a 

basis to modify the standards set forth in section 905(b) and 

Scindia); Celestine v. Lykes Bros. S.S. Co., 729 F. Supp. 691, 

694 (N.D. Cal. 1989) (same). 

 For all of these reasons, Grandslam’s motion for summary 

judgment will be granted.40

2. Turnover duty of SK, the “time charterer” 

 Although the overwhelming weight of authority makes plain 

that “time charterers,” like SK, qualify as a vessel within the 

meaning of section 905(b), equal authority states that the 

duties applicable to a vessel owner differ from the duties 

imparted upon a vessel owner/owner pro hac vice. In general, a 

“time charterer” that has no control over the vessel assumes no 

 

40 Grandslam shall advise the Court of the impact of this 

decision, if any, upon its Crossclaims within seven (7) days. 

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liability for negligence, unless the harm occurs “within the 

charterer’s traditional sphere of control and responsibility or 

has been transferred [to the charterer] by the clear language of 

the charter agreement.” Kerr–McGee, 830 F.2d at 1343; see also 

Mullen v. Hoyu Kaiun Kabushiki Kaisha, No. 88-8311, 1990 WL 

55090 (E.D. Pa. 1990) (same), aff’d, 922 F.2d 832 (3d Cir. 

1990); Irby v. Tokai Lines, No. 88-6890, 1990 WL 18880 (E.D. Pa. 

1990) (same). In other words, a “time charterer” may be liable 

to a longshoremen only if the “time charterer” acts 

independently negligent or otherwise unreasonably in relation to 

its own charter activities. See Browning v. Safmarine, Inc., 

No. 11-2436, 2012 WL 6089481, at *3 (D.N.J. Dec. 5, 2012); Weeks 

Marine, Inc. v. Hanjin Shipping, No. 04-1703, 2005 WL 1638148, 

at *4 (D.N.J. July 12, 2005). 

 As applied here, in order to prevail on its negligence 

claim against SK, Plaintiff must demonstrate that SK acted with 

independent negligence, or unreasonably under all of the 

existing circumstances, in relation to the cargo pre-slings. 

a. Genuine issues of fact preclude the entry of 

summary judgment in favor of SK 

 In support of its request for summary judgment, SK submits 

that Plaintiff’s claims as against it rely upon little more than 

“bluster and conflation,” because Plaintiff has adduced “no 

evidence [from] which to prove that any actions SK took or 

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38 

failed to take proximately caused [Plaintiff’s] injuries.” 

(SK’s Reply at 1.) 

 The Court, however, finds that SK’s position ignores the 

realities of SK’s involvement relative to the cargo rope slings 

and its general supervision over the stevedores’ cargo 

operations. Indeed, SK’s argument on summary judgment centers 

upon (1) SK’s delegation of its sling management process to an 

independent contractor, (2) the fact that it did not control the 

SANKO during the loading, voyage, or discharge, as well as (3) 

its entitlement to rely upon the expertise of DRS (and its 

related assertion that DRS should be called to answer for its 

own negligence). (See SK’s Br. at 35-42; SK’s Reply at 4-8.) 

 Nevertheless, even if the Court accepted each of these 

positions (which it does not), the Court may not ignore the 

record evidence that reflects (1) that SK selected, owned, and 

supplied all of the pre-slings carried aboard the SANKO, 

including the “cut” rope sling at issue here; (2) that SK did 

not “carefully” inspect the conditions and/or safety of the rope 

slings; (3) that SK’s own conduct, coupled with its internal 

policies, support an inference that it actively supervised the 

cargo operations of its international and domestic stevedores; 

and (4) that the question of whether the “cut” sling proved open 

and obvious cannot be resolved upon the competing evidence 

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adduced here. For purposes of the pending motion, however, the 

Court need only elaborate on the most-striking examples. 

 Critically, at all times relevant to this action, SK 

required its port captains to follow SK’s “Guideline[s] for 

Sling Management” (hereinafter, the “Guidelines”). (See Ex. 21 

to Pl.’s SK SMF.) These Guidelines specifically required the 

“discharging” and “loading” port captains to “carefully check,” 

“inspect,” and “supervise” sling quality, condition, and use 

during cargo operations. 41 (Id.) During loading operations in 

Tanjung Manis, Port Captain Kim, in turn, declared that he 

“instructed and informed” the stevedores “regarding the usage of 

slings,” and then “loaded all cargo[]” without incident and 

under the “control” of SK’s “sling management procedures.” (Ex. 

22 to Pl.’s SK SMF (capitalization omitted).) Indeed, during 

his deposition, Captain Kim reiterated that his role as the 

Malaysian Port Captain required him to “carefully check and 

supervise the condition” and “use” of the slings, to ensure the 

safety of the loading stevedores, and to supervise overall cargo 

operations (during and after loading). (Kim Dep. at 18:3-21, 

 

41 In that way, the Guidelines markedly differ from Grandslam’s 

internal safety procedures which do not require supervision 

and/or inspection of slings (or any other cargo-related 

implements). (Compare Ex. 21 to Pl.’s SK SMF, with Exs. 30C, 

31, & 31 to Pl.’s Grandslam SMF.) Beyond this plainly 

distinguishing feature, SK’s Port Captains actually participated 

in the cargo operations, as explained herein. SK’s role 

relatively to the cargo operations therefore proves contextually 

different from Grandslam’s uninvolved role. 

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44:22-46:2, 59:13-61:6, 104:8-113:19 (emphasis added).) 

Nevertheless, Captain Kim acknowledged that he performed only a 

“visual inspection” of the over 22,000 slings. (Id. at 112:6-

9.) 

 During discharge in Camden, Port Captain Joo similarly 

declared that he “instructed” the stevedores regarding the usage 

of slings and that, despite Plaintiff “accident,” SK kept to its 

“sling management procedure before discharging and during 

discharging for safe[] working.” (Ex. 38 to Pl.’s SK SMF.) 

Indeed, during his deposition, Captain Joo testified to 

significant communications between himself and DRS supervisors 

relative to various aspects of DRS’s discharging operations 

(see, e.g., Joo Dep. at 76:11-82:22), and specifically stated 

that he “checked the conditions of [the] plywood and [the] 

conditions of the slings” with DRS Captain Hassall. (Id. at 85-

307.) 

 Taken together, this evidence, viewed in the light most 

favorable to Plaintiff as the non-moving party, depicts SK as 

intimately involved in the cargo operation of its stevedores 

here and abroad. Indeed, this evidence suggests that SK took 

(through its port captains and the Guidelines) an active role in 

ensuring the usability of the rope slings and in ensuring the 

overall safety of its stevedores. Despite the seemingly 

pervasive involvement, however, this evidence equally suggests 

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that the Port Captains implicated in this instance arguably 

erred in fulfilling the requirements reflected in the Guidelines 

and in their own testimony, particularly those related to 

ensuring the safety of the rope slings. Against that backdrop, 

this Court cannot conclude that SK acted reasonably under all of 

the existing circumstances as a matter of law, because this 

collective evidence, examined in the light most reasonable to 

Plaintiff, creates at least a reasonable inference of 

negligence. 

b. Genuine issues of fact preclude a finding that 

the “cut” sling was “open and obvious” 

 Nor can the Court conclude upon this record that the “cut” 

sling proved so “open and obvious” that it excuses any fault of 

SK relative to the condition of the sling. 

 As relevant here, obviousness turns upon whether “a 

reasonable longshore worker under all the circumstances would 

actually have noticed the hazardous condition” and “would 

actually have appreciated the true significance (probability and 

gravity) of the threatened harm.” Davis v. Portline Transportes 

Maritime Internacional, 16 F.3d 532, (3d Cir. 1994) (citations 

omitted). When confronted with “obvious” hazards, a “time 

charterer” like SK can ordinarily “‘rely on the stevedore (and 

its longshore employees) to notice obvious hazards and to take 

steps consistent with its expertise to avoid those hazards where 

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practical to do so.’” Hill, 435 F.3d at 409 (quoting Kirsch v. 

Prekookeanska Plovidba, 971 F.2d 1026, 1031 (3d Cir. 1992)). As 

a result, a “time charterer” “‘may be liable for failing to 

eliminate an eliminable [or open and obvious] hazard only if it 

should have expected that its expert stevedore would not avoid 

the hazard and conduct cargo operations safely.’” Id. (quoting 

Kirsch, 971 F.3d at 1033). 

 Given the nature of the discharging operations in this 

instance, however, it remains unclear whether DRS’s “hold” 

longshoremen should have immediately recognized the condition of 

the “cut” sling. Specifically, although the “cut” itself rested 

close to the “eyes” of the slings, the record evidence leaves 

some doubt concerning the orientation of the “cut” sling on top 

of the plywood bundle (thereby creating a question on whether 

the “cut” should have been visible on the resting sling) and 

whether the DRS “hold” longshoremen connected the slings to the 

spreader assembly in a way that would have given them a clear 

view of the “cut” (thereby creating a question on whether the 

“cut” became visible once lifted off of the bundle). (See, 

e.g., Mortorano Dep. at 86:18-89:18.) Indeed, one of the “hold” 

longshoremen specifically testified that the rope sling at issue 

here “looked good” from his vantage. (Id. at 89:17-18.) The 

Court cannot resolve this disputed evidence in the context of 

summary judgment. See Davis, 16 F.3d at 538-39 (reversing a 

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district court’s obviousness finding, based upon testimony that 

the longshoremen did not observe the hazardous condition); 

Williams v. Precious Cliffs, Ltd., 2006 WL 2057891, at *4-*7 

(E.D. Pa. July 21, 2006) (denying the “vessel” defendants’ 

motion for summary judgment, in light of factual issues on the 

obviousness of the hazard). 

 For all of these reasons, the Court finds that factual 

disputes preclude the entry of summary judgment in favor of SK. 

See FED. R. CIV. P. 56(a). 

CONCLUSION 

 For the reasons explained above, Grandslam’s motion for 

summary judgment will be granted, and SK’s motion for summary 

judgment will be denied. An accompanying Order will be 

entered. 

December 8, 2015 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge

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