One Expensive Promise: The Fourth Circuit Broadens Shipowner Liability Under the Longshore and Harbor Workers’ Compensation Act in Bunn v. Oldendorff Carriers GmbH & Co. KG

Allison Fish | 38 Tul. Mar. L.J. 695

On a wintry February night in Baltimore, Maryland, Richard Bunn went to work for stevedore CNX Marine Terminals, Inc., which was assigned the job of loading a vessel owned by Oldendorff Carriers GmbH & Co. KG. Before Bunn began his work that night, CNX’s shift supervisor boarded the ice-covered ship to tell its chief officer that CNX employees were going to begin loading, so they would need an ice-free path between the holds. The chief officer said that the vessel’s crew would salt and sand the areas between the holds. A few hours after this conversation, CNX’s shift supervisor instructed Bunn to board the ship and begin loading operations. Once on board the ship, Bunn noticed a clear path to the number five hatch and loaded that hatch first. After completing his work at the number five hatch, Bunn then decided to load the number three hatch, which was further back on the ship in a dimly lit area. Bunn held onto a handrail as he stepped off the cleared path onto a patch of ice, and, after only a few steps, he fell to his hands and knees. After his initial fall, Bunn stood up and attempted to continue forward, but almost immediately fell again, this time landing on his back and elbow.

Bunn filed suit against Oldendorff in federal court under the Longshore and Harbor Workers’ Compensation Act (LHWCA) to recover for his injuries. The district court held that a shipowner may be liable for negligence if it voluntarily and affirmatively assumes the responsibility to fix an otherwise open and obvious hazard but fails to do so and that Oldendorff voluntarily assumed responsibility for treating the ice in the locations where longshoremen would be working. The jury awarded Bunn pecuniary and nonpecuniary damages totaling $1,863,750. After trial, Oldendorff moved for judgment as a matter of law and, in the alternative, for a new trial, arguing that it did not have a duty under the LHWCA to warn of the open and obvious danger posed by the icy patches on the ship’s deck and that the jury should have been instructed on this open and obvious defense. The court denied Oldendorff’s posttrial motions. Oldendorff appealed. The United States Court of Appeals for the Fourth Circuit held that Oldendorff’s liability did not depend on its duty to warn and that it was liable for simple negligence for affirmatively undertaking, but failing, to remedy the ice on the vessel’s deck. Bunn v. Oldendorff Carriers GmbH & Co. KG, 723 F.3d 454, 463, 469, 2013 AMC 1869, 1880, 1890 (4th Cir. 2013).