Clemons v. Gearbulk, Ltd.

581 So. 2d 462, 1991 A.M.C. 2243, 1991 Ala. LEXIS 396, 1991 WL 88815
CourtSupreme Court of Alabama
DecidedApril 26, 1991
Docket89-1264
StatusPublished

This text of 581 So. 2d 462 (Clemons v. Gearbulk, Ltd.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clemons v. Gearbulk, Ltd., 581 So. 2d 462, 1991 A.M.C. 2243, 1991 Ala. LEXIS 396, 1991 WL 88815 (Ala. 1991).

Opinion

KENNEDY, Justice.

Frank Clemons, a longshoreman employed by Cooper/T. Smith Stevedoring Company, was injured while on board the M/V Sea Tiger when a bale of wood pulp fell from a sling and struck him. The Sea Tiger, a vessel owned and operated by Sitó-nos Shipping Company, had been chartered by Gearbulk, Ltd., and Toty Navigation Company, Ltd. Glafki (Hellas) Maritime Company acted as the shipping agent for the Sea Tiger. South African Stevedores, Ltd., loaded the wood pulp cargo aboard the Sea Tiger before the vessel left the port of Durban, South Africa.

On January 8, 1988, the Sea Tiger arrived in the port of Mobile, Alabama. Sven R. Fjellby, port captain for Gearbulk, Ltd., arranged for Cooper/T. Smith Stevedoring of Mobile to discharge the cargo of the Sea Tiger.

When the vessel arrived in Mobile, the cargo had been damaged. An independent cargo surveyor estimated that approximately half of the bales of wood pulp had damaged or broken baling wires and that [463]*463approximately 20% of the bales themselves were chipped, broken, or loose.

Gearbulk has established two methods for unloading the bales from the vessel. If there is no visible damage to the baling wires or to the bales, hooks attached to a crane are placed under each of the baling wires of a bale, and the crane then lifts the bale from the vessel. If the bales are obviously damaged, they are placed on a tray or pallet attached to the crane before being unloaded from the vessel. A bale of wood pulp being unloaded by the “hook” method fell from the crane and injured Clemons.

Clemons sued Glafki (Hellas) Maritime Company and Sikinos Shipping Company, alleging negligence. Clemons claimed that the method of unloading the wood pulp created a dangerous condition that caused his injuries. Clemons alleged that many of the bales had damaged baling wires that could not be seen on inspection and that when these bales were lifted by the hook method the wires broke, causing the bale to fall from the crane. Clemons’s wife sued for damages for loss of consortium. Toty Navigation Company, Ltd., and Gearbulk, Ltd., were added as defendants. Toty was never served with notice of the suit and is therefore not a party to this action.

The defendants filed a motion for summary judgment on January 27, 1989. The motion was denied on June 30, 1989. The defendants renewed that motion on October 3, 1989, and the court granted it on January 18, 1990. The court made that summary judgment final pursuant to Rule 54(b), A.R.Civ.P. on April 11, 1990.

While the January 27, 1989, motion for summary judgment was pending, Clemons added South African Stevedores, Ltd., as a defendant. Specifically, Clemons alleged that the cargo had not been properly stowed and secured, claiming that there was insufficient dunnage and blockage to prevent the cargo from shifting during transit. Clemons contended that this improper stowage resulted in damaged cargo that in turn caused his injuries. South African Stevedores filed a motion to quash service of process based on lack of personal jurisdiction. The court granted the motion on May 18, 1990.

On appeal, Clemons argues that the court erred in entering the summary judgment as to Gearbulk and Sikinos. The summary judgment as to Glafki, the shipping agent, has not been appealed. Clemons’s second argument is that it was error to dismiss South African Stevedores for lack of in personam jurisdiction.

As to the first issue on appeal, we note that a summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Sadie v. Martin, 468 So.2d 162 (Ala.1985). On review of a summary judgment, this Court.must view the evidence in a light most favorable to the nonmoving party. Tripp v. Humana, Inc., 474 So.2d 88 (Ala.1985).

First, we will review the Clemonses’ claim under the standards of care owed by a shipowner to a longshoreman first set forth in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981).

“Scindia established three varying standards of care governing the relationship between the shipowner and the stevedore. First, prior to the onset of cargo operations, the shipowner owes the stevedore and its longshoreman the duty of exercising due care ‘under the circumstances,’ which includes having the ship and its equipment in reasonably safe condition and warning the stevedore of hidden dangers that are, or should be, known through the exercise of reasonable care. Scindia, 451 U.S. at 168, 101 S.Ct. at 1622. ... Second, once cargo operations are under way, the shipowner may be liable if it ‘actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.’ Id. Third, also once cargo operations have commenced, and absent contractual, [464]*464legal or customary provisions to the contrary, the shipowner has no duty ‘to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore.’ 451 U.S. at 173, 101 S.Ct. at 1624. Scindia made it clear that once an owner has relinquished complete control of the vessel to the stevedore, primary responsibility for the safety of the longshoremen lies with the stevedore. However, if the shipowner learns of an apparently dangerous condition that presents an unreasonable risk or harm to the longshoremen, it has a duty to intervene and remove the hazard.”

Lampkin v. Liberia Athene Transport Co., 823 F.2d 1497, 1501 (11th Cir.1987) (footnote omitted).

Clemons contends that the first standard of care applies in this case to Sikinos, the shipowner, and Gearbulk, the charterer. That is, he contends that a duty is placed on the shipowner that includes having the ship and its equipment in reasonably safe condition at the time the ship is turned over to the stevedore. Clemons argues that the wood pulp cargo had been improperly stowed and loaded aboard the ship. He asserts that it is standard practice and procedure for the ship’s officer to approve the method and manner of stowage before the vessel leaves port. The ship’s officer, who is considered master of the vessel, can refuse to sail and can require the stevedore to correct the problem. Clemons contends that Sikinos and Gearbulk should have required the stevedore in South Africa (South African Stevedores) to stow the wood pulp properly and that Sikinos and Gearbulk did not properly inspect, supervise, or correct stowage and that the ship was unsafe at the time it was turned over to the stevedore in Mobile.

Clemons also argues that the third standard of care is applicable in this case. He contends that Gearbulk learned of an apparently dangerous condition that presented an unreasonable risk or harm to the longshoreman. Once Gearbulk knew of the dangerous condition, Clemons says, it had a duty to intervene and to remove the hazard. Clemons contends that the method of discharge created a dangerous condition.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

World-Wide Volkswagen Corp. v. Woodson
444 U.S. 286 (Supreme Court, 1980)
Scindia Steam Navigation Co. v. De Los Santos
451 U.S. 156 (Supreme Court, 1981)
Duke v. Young
496 So. 2d 37 (Supreme Court of Alabama, 1986)
Mann v. Frank Hrubetz & Co., Inc.
361 So. 2d 1021 (Supreme Court of Alabama, 1978)
Sadie v. Martin
468 So. 2d 162 (Supreme Court of Alabama, 1985)
Tripp v. Humana, Inc.
474 So. 2d 88 (Supreme Court of Alabama, 1985)
MacKinnon v. St. Louis Southwestern Ry. Co.
518 So. 2d 89 (Supreme Court of Alabama, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
581 So. 2d 462, 1991 A.M.C. 2243, 1991 Ala. LEXIS 396, 1991 WL 88815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemons-v-gearbulk-ltd-ala-1991.