                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 11-4172
                                  _____________

                               CARLOS CAJEIRA;
                               CRISTINA CAJEIRA,
                                          Appellants

                                          v.

                  SKRUNDA NAVIGATION, c/o LSC; SIA
        LSC SHIP MANAGEMENT; LATVIAN SHIPPING COMPANY;
      MT. PILTENE, its, engines, boilers, tackle and appurtenances, etc., in rem
                                 _____________

                  On Appeal from the United States District Court
                           for the District of New Jersey
                             (D.C. No. 2-09-cv-04905)
                     District Judge: Hon. Susan D. Wigenton
                                  _____________

                           Argued on September 25, 2012

   BEFORE: McKEE, Chief Judge, and JORDAN and VANASKIE, Circuit Judges

                           (Opinion Filed: April 23, 2013)

DARIO A. CHINIGO, ESQ.
PAUL T. HOFMANN, ESQ. (Argued)
HOFFMAN & ASSOCIATES
Suite 1506
360 West 31st Street
New York, NY 10001
Attorney(s) for Appellants

JOHN J. WALSH, ESQ. (Argued)
DANIEL J. FITZGERALD, ESQ
FREEHILL, HOGAN & MAHAR
80 Pine Street
New York, NY 10005
Attorney(s) for Appellees
                                        OPINION

McKEE, Chief Judge.

      Appellants Carlos and Cristina Cajeira appeal the District Court’s grant of

summary judgment. The District Court awarded judgment as a matter of law to the

defendant based upon the court’s conclusion that Appellants could not establish an active

control duty. For the reasons that follow, we will affirm.

                         I. FACTS AND PROCEDURAL HISTORY

      As we write only for the parties who are familiar with the facts and procedural

history of this case, we need only briefly summarize the background of this dispute.

      The M/V PILTENE (“PILTENE”), owned and operated by Skrunda Navigation,

c/o LSC, SIA LSC Ship Management and the Latvian Shipping Company (“Skrunda”),

was docked in Carteret, New Jersey, on April 12, 2009 to deliver petroleum to Kinder

Morgan, Inc. (“KMI”). Carlos Cajeira, along with two other KMI employees

(collectively, the “Hose Crew”), was asked to help “stow” the petroleum hoses.

      The Hose Crew worked jointly with crew members of the PILTENE, including

Seamen Armands Graudins and Bosun Joseph Parfens, in discharging a cargo of

petroleum at KMI’s dock. Once the petroleum was offloaded, the hoses were

disconnected and lowered by crane onto the dock where the Hose Crew manually

positioned the hoses on the pier while the crew of the PILTENE assisted using the ship’s

crane. The Hose Crew would signal Graudins, who signaled Parfens to let him know


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when the hoses were ready to be lowered. While the last hose was being lowered, the

crane line suddenly jerked upwards, lifting the attached hose and knocking Cajeira into

the water. There were no reports of any miscommunications or problems in signaling

between the KMI employees and the crew of the PILTENE, nor were there any

allegations that the crane was in disrepair or malfunctioning.

       Cajeira filed an action under the Longshore and Harbor Workers’ Compensation

Act (“LHWCA”), 33 U.S.C. § 905(b), seeking damages from Skrunda for injuries

sustained from this incident. Finding no genuine issue of material fact as to whether

Skrunda owed a duty of care under section 905(b) of the LHWCA, the District Court

granted Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56. This

appeal followed.1

                                             II.

       In Scindia Steam Navigation v. De Los Santos, 451 U.S. 156, 167-178 (1981), the

Supreme Court described three general categories of duties that vessel owners owe to

stevedores: the turnover duty; the duty to intervene, and the active control duty. As

Cajeira’s argument centers on whether or not the PILTENE crew retained active control

of the crane, we limit our discussion to the active control duty.

1
  We exercise plenary review over a grant of summary judgment. Fed. Home Loan
Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). In reviewing the
District Court’s decision, we utilize the same summary judgment standard that guides the
district courts. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). To
prevail on a motion for summary judgment, the moving party must show 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). As a summary disposition, we “view the facts
in the light most favorable to the nonmoving party and draw all inferences in that party’s
favor.” Farrell, 206 F.3d at 278.
                                              3
         Cajeira contends that because Parfens retained operational control of the crane at

the time of the incident, it is a question of fact as to whether the vessel crew was

negligent in causing the crane line to jerk. Because Parfens retained operational control

of the crane, Cajeira argues there is a question of fact as to whether the instrumentality

was under the active control of the vessel. Cajeira further argues that by putting its least

experienced crewmember in charge of operations, the vessel actively created a dangerous

condition for which Skrunda should be held liable.

         Although Parfens retained physical control of the crane, the PILTENE crew

operated the crane under the direction of the Hose Crew. Apart from Parfens’ physical

control of the crane, there is no allegation that the PILTENE crew executed any orders

contrary to those given by the Hose Crew. In the absence of such evidence, the District

Court concluded the allegation that the vessel retained active control of the crane is

conclusory. Cajeira v. Skrunda Navigation, 2011 WL 5080301, *3 (D.N.J. 2011). For

the same reason, the allegation that Parfens acted negligently is conclusory. Id. We

agree.

         Scindia and its progeny make clear that a vessel’s liability under the LHWCA

requires the existence of a duty. Without some evidence showing that the PILTENE

crew failed or was otherwise negligent in carrying out the orders given by the Hose Crew,

Cajeira fails to meet his burden of establishing a genuine issue of material fact as to the

existence of an active control duty.

         For substantially the same reasons as the District Court, we agree that Cajeira

failed to show a genuine issue of material fact as to whether the PILTENE crew retained

                                               4
substantial control over the crane. Since no duty is established, there is no need to

determine if any such duty was breached.

                                                 III.

       Accordingly, we will affirm the order of the District Court.




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