Woldegiorgis v. NYK Ship Management ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 BEREKET WOLDEGIORGIS, Case No. 18-cv-07678-AGT 9 Plaintiff, ORDER DENYING MOTION FOR 10 v. SUMMARY JUDGMENT 11 NYK SHIP MANAGEMENT, Re: Dkt. No. 65 Defendant. 12 13 The record contains conflicting evidence on whether cargo vessels docked in the port of 14 Oakland have a duty to provide adequate lighting to longshoremen who are lashing on their decks. 15 Defendant cites to certain safety standards and regulations in arguing that there’s no such duty. See 16 Tamulski Decl., Ex. J (Pacific Coast Marine Safety Code); 29 C.F.R. § 1918.92 (OSHA safety 17 regulations). Plaintiff, meanwhile, cites to testimony from several experienced longshoremen and 18 from a port employee, who state that in ports on the West Coast the custom and practice is for cargo 19 vessels to provide lighting for longshoremen. See Wilson Decl. ¶¶ 1–3, Dkt. 72; Semenero Decl. 20 ¶¶ 1, 6–8, Dkt. 73; Henriquez Decl. ¶¶ 4–5, Dkt. 75; Diggs Decl. ¶¶ 1–4, Dkt. 76. Custom can give 21 rise to a duty under the governing statute, the Longshore and Harbor Workers’ Compensation Act 22 (LHWCA), 33 U.S.C. § 905(b), as defendant acknowledges. See Mot., Dkt. 65-1 at 17 (“Absent 23 some agreement or custom to the contrary, a vessel has no duty to provide adequate lighting for 24 longshoremen.”) (emphasis added); see also Christensen v. Georgia-Pac. Corp., 279 F.3d 807, 812 25 (9th Cir. 2002) (“In some [LHWCA] cases, custom may be enough to establish a duty.”). 26 The dispute over the scope of a vessel’s duty is material to plaintiff’s case. If defendant’s 27 vessel had a duty to provide plaintiff with adequate lighting when he requested it (and there is 1 Woldegiorgis Decl. {| 5—8, Dkt. 78), then defendant may be liable to plaintiff for negligence. If 2 || there was no such duty, plaintiff likely cannot prevail. 3 The dispute is also one of fact, not law, as it is for the jury to consider the testimony, 4 standards, and regulations at issue in evaluating whether the defendant breached a duty of care. See 5 Davis v. Partenreederei M.S. Normannia, 657 F.2d 1048, 1053 (9th Cir. 1981) (explaining that an 6 OSHA regulation indicating that stevedores, not shipowners, owed a duty to protect longshoremen 7 || from certain dangers was “one of the factors to be properly considered by the jury,” but did “not 8 || require a directed verdict on behalf of the shipowner”). 9 Because there is a genuine dispute as to a material fact, defendant’s motion for summary 10 || judgment is denied. The May 19, 2021, case management order remains in place and will govern 11 further proceedings. 12 IT IS SO ORDERED. 5 13 Dated: August 5, 2021 5 ALEXG.TSE United States Magistrate Judge 16 18 19 20 21 22 23 24 25 26 27 28