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BELLOMO v. UNITED ARAB SHIPPING CO.

September 21, 1994

FILIPPO BELLOMO, Plaintiff,
v.
UNITED ARAB SHIPPING CO. (S.A.G.), Defendant.



The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge,

 Plaintiff Filippo Bellomo brings this action under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 905, seeking relief for injuries allegedly caused by the negligence of Defendant United Arab Shipping Company. Currently before the Court is Defendant's motion for summary judgment. Because the Court finds that there is a genuine issue of material fact as to whether Defendant breached a duty of care to Plaintiff, Defendant's motion for summary judgment is denied.

 BACKGROUND

 On January 21, 1991, Plaintiff Filippo Bellomo was employed as a longshore worker by Universal Maritime Service Corporation (the "stevedore") and was discharging cargo from the M/V ALWATTYAH, a ship owned by United Arab Shipping Company. Plaintiff was assigned to remove lashing pins from cargo containers located on the deck of the vessel. After removing a pin from the top of a container, Plaintiff descended to the snow-covered deck beneath him. (Pl.'s Dep. at 58). Upon stepping down into the snow, Plaintiff claims that he lost his foothold because of an underlying sheet of ice. (Pl.'s Dep. at 58.) As a result of his fall, Plaintiff claims he sustained injuries to his right shoulder and elbow.

 DISCUSSION

 I. Standard for Granting Summary Judgment

 A motion for summary judgment may be granted only when it is shown that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987); Winant v. Carefree Pools, 709 F. Supp. 57, 59 (E.D.N.Y.), aff'd, 891 F.2d 878 (2d Cir. 1989). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; see also Trebor Sportswear Co. Inc. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989); Pariente v. Scott Meredith Literary Agency, Inc., 771 F. Supp. 609, 612 (S.D.N.Y. 1991).

 Once the moving party has come forward with support -- including pleadings, depositions, interrogatory answers, and affidavits -- demonstrating that no genuine issue of material fact remains to be tried, the burden shifts to the non-moving party to provide similar support setting forth specific facts about which a genuine triable issue remains. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir. 1989); Donahue, 834 F.2d at 57. "The mere existence of some alleged factual dispute between parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is there be no genuine issue of material fact." Anderson, 477 U.S. at 57-48. The substantive law governing the case will identify those facts that are material, and "only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

 Moreover, "conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to material facts.'" Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (1991) (quoting Anderson, 477 U.S. at 252, and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); see also Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' or defeat the motion through 'mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Borthwick, 892 F.2d at 181, and Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)). Finally, the court must resolve all reasonable inferences in favor of the non-moving party. Donahue, 834 F.2d at 57. With these principles in mind, the court turns to a discussion of the case at bar.

 II. Shipowner's Duty of Care to Longshore Workers

 The 1972 Amendments to the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 901-50, provide that longshore workers may recover damages from a shipowner for injuries caused by the shipowner's negligence. 33 U.S.C. § 905(b). *fn1" Because Congress did not specify the acts or omissions of the shipowner that would constitute negligence, the contours of a shipowner's duty to longshore workers are left to be resolved through the application of accepted principles of tort law and the ordinary process of litigation. Howlett v. Birkdale Shipping Co., S.A., 129 L. Ed. 2d 78, 114 S. Ct. 2057, 2063 (1994).

 Applying the principles of tort law in the context of stevedoring operations, the Supreme Court has explained that shipowners owe three distinct duties of care to longshore workers. Id.; Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 167, 68 L. Ed. 2d 1, 101 S. Ct. 1614 (1981). The first duty, commonly called the "turnover duty," relates to the condition of the ship upon the commencement of stevedoring operations. Howlett, 114 S. Ct. at 2063 (citing Scindia, 451 U.S. at 167). "The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the 'active control of the vessel.'" Id. (quoting Scindia, 451 U.S. at 167). The third duty, commonly ...


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