Nystrom v. Khana Marine Ltd.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2025
• Docket: 24-2553
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIAS NYSTROM, No. 24-2553 D.C. No. Plaintiff - Appellant, 3:20-cv-00098-JMK v. MEMORANDUM* KHANA MARINE LTD.; NOK CO. LTD. SA, in personam,

Defendants - Appellees.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Argued and Submitted August 13, 2025 Anchorage, Alaska

Before: GRABER, OWENS, and R. NELSON, Circuit Judges.

Elias Nystrom slipped and injured his shoulder while moving frozen cargo

aboard a vessel in Dutch Harbor, Alaska. He brought this maritime negligence

action against the vessel’s owners (Defendants) under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. § 905(b). The district court granted partial

summary judgment to Defendants on Nystrom’s turnover claim and, after a bench

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. trial, entered judgment for Defendants on his active control claim. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court correctly granted partial summary judgment to

Defendants on Nystrom’s turnover claim. “The turnover duty requires the ship

owner to turn over the vessel to the stevedores in a safe condition and to warn them

of any hidden hazards.” Christensen v. Ga.-Pac. Corp., 279 F.3d 807, 812 n.10 (9th

Cir. 2002). The duty is temporally limited: it relates to the “condition of the ship

upon the commencement of stevedoring operations.” Howlett v. Birkdale Shipping

Co., S.A., 512 U.S. 92, 98 (1994). The turnover duty ends (and the active control

duty begins) “once stevedoring operations have begun.” Id.

Assuming that there is a factual dispute about the condition of Defendants’

vessel when stevedoring operations began on the night of April 29, 2017, Nystrom

still failed to present evidence refuting Defendants’ showing that slippery conditions

are not an unreasonable impediment to professional longshoremen in Dutch Harbor.

See Bjaranson v. Botelho Shipping Corp., 873 F.2d 1204, 1208 (9th Cir. 1989)

(“[C]ertain dangers that may be hazardous to unskilled persons need not be remedied

if an expert and experienced stevedore could safely work around them.”). A

declaration from Andrew Murphy, the president of Nystrom’s employer, explained

that the company’s longshoremen “routinely work in icy and slippery conditions.”

Murphy also noted that the company’s longshoremen are “experienced in these

2 24-2553 conditions and trained to work safely around them.” Nystrom offered no expert

declaration or testimony establishing the standard of care, nor did he identify record

evidence casting doubt on this aspect of Murphy’s declaration and conclusions. See

Fed. R. Civ. P. 56(c)(1). Defendants were therefore entitled to partial summary

judgment on Nystrom’s turnover claim. See Nissan Fire & Marine Ins. v. Fritz Cos.,

210 F.3d 1099, 1103 (9th Cir. 2000).

2. The district court did not err in denying Nystrom’s active control claim.

The active control duty “provides that a shipowner must exercise reasonable care to

prevent injuries to longshoremen in areas that remain under the ‘active control of the

vessel.’” Howlett, 512 U.S. at 98 (quoting Scindia Steam Nav. Co. v. De Los Santos,

451 U.S. 156, 167 (1981)). Nystrom argues that the vessel’s crew were negligent in

removing ice from the cargo deck which, in his view, was under the vessel’s active

control during stevedoring operations. The district court, however, found “that the

cargo deck in question was not covered in ice and there was no ice or slick condition

beyond the usual conditions reasonably expected by [the company’s] longshoremen

in an open freezer hold exposed to the elements.” Nystrom’s contrary testimony was

deemed not credible.

The district court’s factual findings are not “illogical, implausible, or without

support in inferences from the record.” Yu v. Idaho State Univ., 15 F.4th 1236,

1241–42 (9th Cir. 2021) (citation and internal quotation marks omitted). The district

3 24-2553 court found more credible testimony from Joel Gumera, Nystrom’s supervisor, who

contradicted Nystrom’s allegation that the vessel’s crew were breaking ice on the

cargo deck at the time of the incident. See Kirola v. City & County of San Francisco,

860 F.3d 1164, 1182 (9th Cir. 2017) (noting that a district court’s credibility findings

receive “special deference”). And, in any event, the crew’s alleged actions were not

the kind of substantial “control of cargo operations” implicating the active control

duty. See Quevedo v. Trans-Pac. Shipping, Inc., 143 F.3d 1255, 1260 (9th Cir.

1998).

AFFIRMED.

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