United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court is Defendant Hyundai Steel Company's
(“Defendant HSC”) “Motion for Summary
Judgment” (Rec. Doc. 49), and Plaintiff Kiara
Kemp's (“Plaintiff”) Response in Opposition
(Rec. Doc. 50). For the reasons outlined below, IT IS
ORDERED that Defendant HSC's motion for summary
judgment is GRANTED and Plaintiff's
claims against Defendant HSC for negligence and/or liability
are hereby DISMISSED with prejudice.
AND PROCEDURAL HISTORY
instant controversy stems from an injury sustained by
Plaintiff while aboard the M/V UNITED TENORIO (the
“Vessel”) while inventorying cargo as a work
clerk for Coastal Cargo Company. Rec. Doc. 50 at 1. The
subject incident occurred on May 25, 2014, when Plaintiff was
assigned the task of inventorying cargo in a particular hold
on the Vessel. Id. The cargo, manufactured and
shipped by Defendant HSC, consisted of individually wrapped
pieces of steel-reinforcing bars, i.e. rebar. Rec. Doc. 49-1
at 3. Defendant HSC sold the cargo to Steelinvest Jersey Ltd.
Id. For shipment, Defendant HSC packaged the
individual pieces of rebar into tight bundles. See
Rec. Doc. 49-2 at 114-24; see also Rec. Doc. 49-3.
Pursuant to respective agreements, an entity named Kyunghan
Company was responsible for stevedoring and placing the
bundles of rebar onto the Vessel using slings and cranes.
Rec. Doc. 49-3. Another company, Hyundai Glovis was
contracted to lash and shore the bundles of rebar with
binding and “dunnage” once the bundles were
placed into onto the Vessel by Kyunghan. Id.
uncontested facts of this case are that on the date of
incident, Plaintiff entered the hold to record certain
information on the bundles of rebar. Rec. Doc. 49-2 at 83.
During the process of recording inventory, Plaintiff jumped
about four bundles down from her position on one of the
bundles of rebar to another. Rec. Doc. 49-2 at 127. Plaintiff
asserted in her deposition testimony that almost immediately
after she landed she heard a loud cracking sound and fell as
a bundle of rebar hit her calf and rolled onto her ankle.
Id. at 131-37. Plaintiff later noted that the loud
cracking sound she heard was the “dunnage”-the
wood provided by Hyuandi Glovis to secure the bundles of
rebar-breaking. Id. at 131.
filed suit in Louisiana state court on April 1, 2015,
originally naming Wilhelmsen Ships Service, Inc., CWT
Commodoties (USA) LLC, and The Board of Commissioners of the
Port of New Orleans (incorrectly referred to as “The
Port of New Orleans”) as defendants. Rec. Doc. 50-2 at
1. The suit was removed to federal district court on November
5, 2015. Rec. Doc. 1. Plaintiff dismissed all claims against
the Port on October 9, 2015. Rec. Doc. 1-6 at 21. This Court
then granted Defendant CWT's motion for summary judgment
of all claims against it on January 20, 2016. Rec. Doc. 12.
filed an amended complaint on May 20, 2016, adding Defendant
HSC as a party to this litigation. Rec. Doc. 15 at 2. After
Defendant Wilhelmsen moved for summary judgment of the claims
(Rec. Doc. 28), Plaintiff filed a motion to dismiss its
claims against Wilhemsen without prejudice on January 4,
2017. Rec. Doc. 30. This Court granted that motion on January
5, 2017. Defendant HSC now files the instant motion for
summary judgment. Rec. Doc. 49.
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The burden is on the moving party to show
that there is no genuine issue as to any material fact.
Id. A court reviewing a motion for summary judgment
must view any inferences drawn from the underlying facts
“in the light most favorable to the party opposing the
motion.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
1356, 89 L.Ed.2d 538 (1986). If, after adequate time for
discovery, the non-moving party has failed to “make a
showing sufficient to establish the existence of an element
essential to that party's case” that they would be
required to prove at trial, then “the plain language of
Rule 56(c) mandates the entry of summary judgment.”
Celotex Corp. v. Catrett, 477 U.S. 317,
HSC did not owe a duty to Plaintiff
analysis of a maritime tort is guided by general principles
of negligence law”, under which an alleged tortfeasor
is only liable to those to whom a duty is owed. Consol.
Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th
Cir. 1987). As Plaintiff states in her opposition to this
motion for summary judgment, the fundamental question to be
addressed is whether Defendant HSC owed a duty to the
shipowner to warn of the hazards that Plaintiff contends
resulted in her injuries. Rec. Doc. 50 at 5. According to
Plaintiff, HSC, as manufacturer and shipper of the steel,
owed a duty to warn those who handled the steel “of the
foreseeable hazards inherent in the cargo of which the master
could not reasonably have been expected to be aware”.
Rec. Doc. 50 at 5. The question before us is whether the
injuries of Plaintiff were foreseeable hazards inherent in
the cargo that the shipowner could not have reasonably been
expected to be aware.
existence of a duty is a question of law that is determined
by examining a number of factors, “including most
notably the foreseeability of the harm suffered by the
complaining party.” Consol. Aluminum, 833 F.2d
at 67. While a shipper and manufacturer of a product does
have a duty to warn a shipowner of the foreseeable hazards of
the product of which he could not reasonably have expected to
be aware, there is no duty to warn “of hazards of which
the shipowner was aware or could reasonably be aware.”
Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d
370, 376 (5th Cir. 2000).
has put forth no evidence to demonstrate that the steel rebar
manufactured by Defendant HSC is inherently dangerous such
that HSC had a duty to provide an additional warning to the
shipowner and stevedores regarding its handling. Steel bars
have no inherently hazardous quality that would create a
latent danger of which a reasonable stevedore would be
unaware. Further, Defendant HSC packaged individual pieces of
steel in bundles before they were further bundled and
packaged by other entities. Rec. Doc. 49-1 at 3. The bundling
of the rebar by HSC was completed properly, ...