We all agree that plaintiff's negligence claim is governed by section 905 (b) of the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 USC § 901 et seq.) and turns on whether defendant breached a duty under Scindia Steam Nav. Co. v De los Santos (451 US 156, 166-167 [1981]). In reversing the grant of summary judgment in defendant's favor dismissing the complaint, the majority finds that issues of fact exist as to whether defendant breached its “turnover duty” or “duty to intervene.” However,

Here, even if defendant's failure to provide a gangway could possibly be considered as a defective or hazardous condition, it was still not a hazard that was “not known by the [plaintiff] and would not be obvious to or anticipated by him if reasonably competent in the performance of his work” (Scindia, 451 US at 167). Plaintiff was not a mere passenger. He was in charge of *8 the return of the port-a-johns to his employer's facility and told the captain where to dock. The record establishes that there was a ladder or gangway at the Weeks Marine yard and that there were no exigent circumstances that required plaintiff to jump the four feet from the bulkhead to the deck. Furthermore, as to the duty to intervene, the boat's captain did not see plaintiff jump and was not involved in plaintiff's decision to do so. Therefore, I respectfully dissent.

The turnover duty requires the owner to exercise “ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety” (Scindia, 451 US at 166-167). Additionally, the owner has a duty to warn the stevedore of latent or hidden dangers which are known or should have been known to the owner (id.). However, an owner has not breached its duty to turn over a safe vessel if the defect *45 that causes injury is open and obvious and one that the stevedore should have seen (see Kirksey v Tonghai Mar., 535 F3d 388, 395 [5th Cir 2008]), unless the stevedore's “only alternatives when facing an open and obvious hazard are unduly impracticable or time-consuming” (Pimental v LTD Can. Pac. Bul, 965 F2d 13, 16 [5th Cir 1992]).

According to plaintiff's deposition testimony, although the height differential between the bulkhead and the deck could be between two and five feet, depending on when one got there, plaintiff never asked the boat's captain to provide him with a ladder, gangway or any other form of aid. Plaintiff also acknowledged that ladders and gangways were available at the yard if he wanted them, that he never asked for either, and that prior to the accident he had disembarked and boarded the boat at the same location in the yard “[m]aybe a dozen times” without incident.

Plaintiff explained that he would disembark by climbing over the bulkhead and that when he had to reboard he would “jump down.” When asked if he thought that was a safe way to board, he replied: “I didn't think there was anything so wrong with it, that was common,” and that just about every Weeks Marine worker did it.

Plaintiff further testified that on the date of the accident, the height differential between the bulkhead and the deck was “[a]bout four feet,” which was not unusual. In accordance with his customary practice, plaintiff climbed up on the bulkhead, face forward, and informed a coworker that he was there and what needed to be done. The pair walked back to the boat together and the coworker boarded first by jumping down. Plaintiff did not ask anyone at Weeks Marine for a gangway or ladder and decided to ask the coworker to stand there for a second so he could put his hand on his shoulder as an anchor and jump down. Plaintiff did not see the boat's captain, who “had no involvement in [his] decision to reboard or jump on the boat.”

Plaintiff leaned forward with his left arm to reach his coworker's shoulder, then jumped. He had never tried to use a coworker to hold onto while he jumped before. When plaintiff landed, his leg “blew out.” Plaintiff laid on his back “until [a Weeks Marine employee] got a gangway out and an ambulance showed up.” If the coworker had not been there, plaintiff would have turned around and climbed down from the bulkhead.

The coworker stated in an affidavit that he had asked a supervisor for a gangway, but decided not to wait for it to board *46 the boat because they “had a lot of work to do that morning.” After he boarded, he saw plaintiff falling towards him, and tried to hold him up. He did not know why plaintiff attempted to board the boat or why he lost his balance.

The boat's captain testified that the location and timing of his trips were decided by Weeks Marine employees. When they approached the Greenville yard, plaintiff would call the facility by cell phone to determine where they should dock. The captain remained in the boat's wheelhouse, monitoring the marine radio and waiting for instructions, and did not see plaintiff disembark or attempt to board the boat. Generally, the boat, which did not have its own gangway, portable stairs or ladder on board, matched up pretty well to the heights of Weeks Marine's barges. *9

Defendant's vice-president of operations testified that the company's policy is to use the gangway provided by the facility where the boat is docking. The boat could not carry its own gangway because vessels of that size do not have the room to carry one long enough for all situations. Defendant's stated policy is that the person disembarking is the one who decides whether it is safe to get on or off the boat. As long as there is ample water under the hull and nothing in the waterway that could harm the vessel, the boat will dock where the client directs.

On this record, defendant did not violate its Scindia turnover duty. The failure to provide a gangway was open and obvious when Weeks Marine chartered the vessel, and the record reveals no evidence that plaintiff's means to reboard the vessel was limited to jumping down onto the deck or that requesting a safer alternative to board would have been unduly impractical or time-consuming. As the motion court found, plaintiff does not present any evidence that the distance between the pier and the deck was a condition that an experienced stevedore would not expect to encounter or that such condition would prevent the stevedore from carrying out its cargo operations with reasonable safety. Accordingly, defendant was entitled to rely on plaintiff's experience working at his employer's facility, his familiarity with the conditions there and the process of boarding from a pier to the vessel.

The majority disagrees, holding that issues of fact exist as to whether defendant's stated policy of not providing a gangway or other device to permit safe disembarkation from its vessel, and leaving it up to its passengers to decide whether embarkation *47 was safe, violated its turnover duty. Stating that the turnover duty at a minimum requires a vessel to provide a safe means of access and that the obviousness of the defect does not absolve the owner of its duty to turn over the vessel in a condition under which an experienced stevedore can operate, the majority finds that there are issues of fact as to whether plaintiff really had the option of obtaining a gangway or insisting that one be provided.

However, unlike the cases cited by the majority, such as Scheuring v Traylor Bros., Inc. (476 F3d 781 [9th Cir 2007]) and Gay v Barge 266 (915 F2d 1007 [5th Cir 1990]), which dealt with injuries caused by defective ramps or gangways, we are dealing with the failure to provide a gangway. “There is no duty to turn over an absolutely safe vessel” (Sinagra v Atlantic Ocean Shipping, Ltd., 182 F Supp 2d 294, 300 [ED NY 2001]), and the failure to provide a gangway is not negligence per se. Defendant's vice-president of operations testified that the boat was not designed to carry a gangway suitable for all docks at all Weeks Marine facilities and plaintiff's expert acknowledged that the inspection regulations applicable to the boat did not specifically require a gangway or other means to board or disembark from the vessel. Furthermore, the absence of a gangway or other device for boarding or disembarking and the distance of approximately four feet between the bulkhead and the deck of the boat were immediately noticeable and any hazard posed thereby was an open and obvious condition. Plaintiff did not present any evidence that the condition was one that an experienced stevedore would not expect to encounter or that the condition would prevent the stevedore from carrying out its cargo operations with reasonable safety. Nor did plaintiff produce any evidence that requesting a safer alternative to board would have been unduly impractical or time-consuming.

Indeed, plaintiff admits that on prior occasions he had boarded the boat at the same location by jumping down from the bulkhead, that he never requested any form of assistance from any source to board the boat, even though he was aware that Weeks Marine kept gangways or ladders available for his use at its facility where the boat docked, and that he had no intention to make such a request. Significantly, plaintiff was not faced with exigent circumstances that required him to jump from the bulkhead to the deck, and he acknowledges that he did not notify the captain when he was reboarding and that he decided to jump down to the deck only because he believed he could lean on the worker in front of him for support.

*48 Nor is there an issue of fact as to whether defendant breached its duty to intervene.

The majority finds that there are issues of fact as to whether defendant breached its duty to intervene because the captain was aware of the dangerous distance between the pier and the deck, and that plaintiff would have to disembark and eventually reboard at some point. The majority further finds that because plaintiff testified that he had reboarded by jumping on 12 or so prior occasions, the captain should have been aware of the dangerous method of accessing the boat.

However, as the majority acknowledges, the captain did not see plaintiff embark. There is no evidence that he had actual knowledge of what plaintiff intended to do and “ ‘should-have-known’ constructive knowledge is insufficient to meet the actual knowledge requirement” (Gravatt v City of New York, 226 F3d 108, 127 n 17 [2d Cir 2000], cert denied sub nom. Gravatt v Simpson & Brown, Inc., 532 US 957 [2001]). In any event, the majority's theory is speculative (see Park v Kovachevich, 116 AD3d 182, 191, 192 [1st Dept 2014], lv denied 23 NY3d 906 [2014]). While a gangway and ladders were available at the Weeks Marine yard, plaintiff did not ask for one and decided to put his hand on a coworker's shoulder and jump down, a method he had not used before. Indeed, plaintiff testified that if his coworker had not been there, he would have turned around and climbed down from the bulkhead. Furthermore, even if Weeks Marine's employees regularly boarded by jumping, there is no evidence that the captain ever observed them jumping from a distance of four feet. Nor is there any proof that proceeding with Weeks Marine's operations under the circumstances was “obviously improvident” (Scindia, 451 US at 175).

Accordingly, the order granting defendant summary judgment should be affirmed.

Mazzarelli, Feinman and Webber, JJ., concur with Acosta, J.P.; Andrias, J., dissents in a separate opinion.

Order, Supreme Court, New York County, entered June 2, 2016, reversed, on the law, without costs, and the motion denied.