                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-1996

Serbin v. Bora Corp Ltd
Precedential or Non-Precedential:

Docket 95-1806




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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                            NO. 95-1806

                            JOHN SERBIN,

                                  Appellant

                                  v.

                          BORA CORP., LTD.

                                       Appellee

             _____________________________________

        On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                  (D.C. Civ. No. 94-cv-03030)
             _____________________________________

                        Argued: April 25, 1996

      Before: BECKER, NYGAARD, and LEWIS, Circuit Judges.

                  (Filed September 13, 1996)


CHARLES SOVEL, ESQUIRE (ARGUED)
Freedman and Lorry, P.C.
Continental Building, Suite 900
400 Market Street
Philadelphia, PA 19106

Attorneys for Appellant

CARL D. BUCHHOLZ, III, ESQUIRE (ARGUED)
MICHAEL P. ZIPFEL, ESQUIRE
Rawle & Henderson
The Widener Building
One South Penn Square
Philadelphia, PA 19107

Attorney for Appellee


                        ____________________

                        OPINION OF THE COURT
                        ____________________

BECKER, Circuit Judge.
         The appeal in this longshoreman's personal injury case requires
us to consider
once again the contours of the "active" operations duty, as developed in
the caselaw flowing
from the landmark case Scindia Steam Navigation Co. v. De Los Santos, 451
U.S. 156
(1981), and to apply it to the facts of a stevedoring accident. The
plaintiff is John Serbin,
who, as the sun was rising on December 28, 1992, struggled to move a stuck
piece of
equipment — known as a "snatch block" — on the ship he was helping to
unload. Unable to
complete the job, Serbin attempted, with a coworker, to set it down, but
he was thrown from
the crates he was standing on to the deck seven feet below, breaking his
knee in the fall.
Serbin sued in the District Court for the Eastern District of Pennsylvania
under section 5(b) of
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905 (b),
alleging
negligence of the vessel's crew that was attributable to the defendant
ship. The district court
granted summary judgment for the ship. Because there is a genuine issue
of material fact as to
whether the ship breached the active operations duty, we reverse and
remand for further
proceedings.

                 I. FACTS AND PROCEDURAL HISTORY
         Serbin was a longshoreman employed by Independent Pier Company, a
stevedore operating in the Port of Philadelphia.         Beginning at
about midnight on
December 28, 1992, Serbin's longshore gang began unloading fruit from the
M/V Atlantic
Universal, a vessel owned by defendant Bora Corp. LTD (the "ship"). The
ship's cargo hold,
where the fruit was located, is divided into hatches and decks. Each
hatch, like a silo, runs
vertically through the ship; each hatch is also split horizontally into
five decks about seven feet
high. Cargo, in this case fruit, is bundled into units approximately
seven feet high so that
each unit can fit into a deck. Separating the decks are movable hatch
covers, like double
doors, that form the floor and ceiling of the decks.
         The ship's crew opens and closes these hatch covers with a block
and pulley
system. Using a crane, the crew pulls a cable that runs through four
snatch blocks — one in
each corner — and then attaches to the hatch cover. After the
longshoremen remove the unit
of cargo from the highest deck, the crew uses the block and pulley system
to fold open the
next hatch cover, exposing the unit of cargo in the deck below. The
snatch blocks, the
moveable pulley part of the system, can pivot up (vertical position) and
down (horizontal
position) around hinges that attach them to the sides of the hatch covers.
In order to open the
hatch covers, the snatch blocks must be in the down (horizontal) position.
After the hatch
covers have been opened, the blocks must be returned to the up (vertical)
position in order to
allow the removal of the cargo below. The crew then ties the blocks to
hold them in the up
position. Each block weighs approximately one-hundred pounds. Unlike
most snatch blocks,
which are portable, the blocks on the M/V Atlantic Universal were fixed to
the hatches and
had metal projections extending from their hinges that served as stoppers.
As with the hatch
covers themselves, moving the snatch blocks is the responsibility of the
crew.

         At around 7:00 in the morning on December 28, Serbin returned
from a
"dinner" break to resume unloading the No. 3 hatch of the M/V Atlantic
Universal, which had
been loaded by another stevedore in Chile. Serbin, a forklift driver, was
responsible for
moving the fruit to the middle of the hatch, where a crane could lift the
cargo out of the ship.
As he descended to one of the lower "tween" decks, Serbin noticed that
most of the cargo in
the middle of the exposed deck had been unloaded, but that some units
remained in the
"wings." He also noticed that one of the snatch blocks improperly
remained in the down
position, resting on top of one of the cargo units. Serbin concluded that
the unit of cargo
underneath the block could not be removed while the block was in a down
position, at least
without damaging the top box of fruit. Serbin also believed that the
block was unsafe where it
was because "that's where the hookup man would normally stand in the wing.
If anything was
to fall he had no place to run." App. 39A. Therefore, he decided to move
the block back to
the up position.
         Serbin decided that he should move the block himself instead of
waiting for the
crew to do it, he testified, for two reasons. First, "the fruit system
has gotten very
competitive on the East Coast. With that in [the] way we wouldn't be able
to send any fruit
out and we would have had to wait for the crew to come down and move it
and that would
have been a waste of time, so I figured I can save time by moving it."
Second, he had moved
blocks in the past without difficulty, albeit sometimes with the help of a
fellow longshoreman,
and saw no reason why he should have any problem in this case.
         When Serbin tried to move the block, he found that he could not
do so by
himself. He asked another longshoreman, John McGonigle, who was working
in the hold
below, to help him raise it. McGonigle, incidentally, had notified a crew
member when he too
had noticed the problem. See infra p. 24. At all events, using a 4" x 4"
piece of wood that
was lying on the deck, McGonigle attempted to push the block from below,
while Serbin,
standing with one foot on top of the unit, tried to lift the block from
above. They discovered
that together they could still move the block only a little bit. As they
attempted to set the
block down, McGonigle lost control of the 4" x 4", the block snapped back
down on top of the
unit, and Serbin was catapulted off the top of the unit onto the deck
below. Serbin suffered a
severe knee injury in the fall — a tibial plateau fracture — that has
permanently disabled him
from working as a longshoreman.
         In addition to his and McGonigle's testimony, Serbin offered the
affidavits of
two maritime experts: George Mara, a naval architect and marine surveyor;
and James
Muldowney, an experienced stevedore ship boss. These experts opined that
the block had
become stuck on the underlying unit when the ship's crew failed to ensure
that the block path
was unobstructed before closing the hatch covers after the fruit was
loaded in Chile. It was
also the opinion of these experts that the crew should have discovered
this condition both at
the time it closed the hatch covers and the time it opened them in the
Philadelphia port where
Serbin worked. In his complaint, under section 5(b) of the Longshore and
Harbor Workers'
Compensation Act, 33 U.S.C. § 905(b), Serbin alleged negligence on the
part of the ship's
crew in failing to discover and correct the stuck block. Defendant, the
ship owner, moved for
summary judgment on the ground that Serbin could not establish a breach of
any duty.
         The district court granted the motion. Serbin v. Bora Corp., No.
94-3030, slip
op. at 1 (E.D. Pa. Aug. 17, 1995). It first reasoned that an issue of
material fact precluded
deciding whether the "active operations" or the "turnover" duty of the
Longshore Act
governed in this case. Id. at 9. Proceeding on the assumption that the
active operations duty
applied, the court reasoned that Serbin had failed to establish three of
the four elements
necessary to a prima facie case. According to the district court, Serbin
failed to show (1) that
"a stuck block generally creates a hazard"; (2) that the condition of the
block was not
"obvious"; and (3) that the ship failed to take reasonable precautions
because "[t]he vessel had
established a mechanism for addressing problems with the blocks" and
"[Serbin] attempted to
fix the problem himself before the crew had a chance to remedy the
problem." Id. at 9-12.
The district court concluded:
         Plaintiff has not presented any evidence to establish that the
         obstructed condition of the block presented a hazard that either
         was known or should have been known to the crew.   As a result,
         plaintiff cannot establish a breach of either the active
operations
         duty or the turnover duty.
Id. at 14. Serbin appeals. The standard of review for summary judgment
motions is well
known and hence we relegate it to the margin.

              II. DUTIES UNDER THE LONGSHORE ACT
         The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §
905(b),
establishes a comprehensive workers' compensation program for longshoremen
and their
families. Section 5(b), the provision of the Act relevant for our
purposes, provides
longshoremen a cause of action for injuries resulting from the negligence
of a ship or its
crew. However, the Act neither specifies what acts constitute negligence
nor describes the
duties owed by shipowners to longshore workers. Instead, Congress
intended that the scope of
a shipowner's liability would evolve under general common law principles.
See H.R. Rep.
No. 1441, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4698,
4704 ("Such
issues can only be resolved through the application of accepted principles
of tort law and the
ordinary processes of litigation — just as they are in cases involving
alleged negligence by
land-based third parties.").
         The Supreme Court set forth the basic framework for the Act's
operation in
Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). "This
duty extends,"
the Court explained, "at least to exercising 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 operation with
reasonable safety to
persons and property . . . ." Id. at 166-67.
         As developed in Scindia and subsequent cases, the Longshore Act
imposes three
duties on shipowners: (1) the "turnover" duty; (2) the "active
operations" duty; and (3) the
"intervention" duty. The primary differences between these duties turn on
scope of conditions
or events for which the ship is responsible. Which duty applies, in turn,
depends on the
timing of the cargo operation (i.e., has it begun?) and the control over
the area or
instrumentality in question (i.e., does the ship or the stevedore have
control?). The turnover
duty comprises "both a duty to provide safe conditions and a corollary
duty to warn of known,
nonobvious hazards" in instrumentalities and areas "turned over" to the
stevedore's control.
Kirsch v. Plovidba, 971 F.2d 1026, 1028 (3d Cir. 1992). For areas and
instrumentalities
remaining under the ship's control, the active operations duty includes
the turnover duty, but
also requires the ship, after unloading has begun, not to take negligent
actions in areas under
its control that threaten the longshoremen's safety. See Davis v.
Portline Transportes
Maritime Internacional, 16 F.3d 532, 537 (3d Cir. 1994). Finally, the
intervention duty
requires the ship to take affirmative steps to rectify hazardous
conditions even though it did
not create the danger and even though the danger did not exist at the
point of "turnover," at
least when the ship has actual knowledge and the condition is not obvious.
See Howlett v.
Birkdale Shipping, 114 S. Ct. 2057 (1994).

                          III. DISCUSSION
              A. Which Duty Applies?
         The two arguably relevant duties in this case are the active
operations duty and
the turnover duty. Serbin argues that the primary duty implicated here is
the active operations
duty. The ship insists that it is the turnover duty. The district court
held that disputed issues
of material fact precluded summary judgment on this issue. We agree. In
order for the active
operations duty to apply, Serbin must establish that the area in which the
injury occurred, or
the instrumentality which caused the injury, was under the substantial
control of the vessel.
See Davis, 16 F.3d at 540. Serbin introduced evidence that the hatches
and their snatch
blocks (the instrumentality which allegedly caused his injury) remained at
all times under the
control of the crew. Indeed, the crux of the ship's defense is that
Serbin should have waited
for the crew to take care of the problem.
         With the exception of the "obviousness" inquiry, however,
discussed infra,
which duty controls is not important here: if the block presented a
hazard — whether through
the turnover or the active operations theory — the ship breached its duty
to Serbin. Serbin has
introduced evidence of the stuck block, and the ship has produced nothing
that could support a
conclusion that the block became stuck after Serbin's stevedore began
unloading in
Philadelphia. Moreover, determining that Serbin could prevail on any
theory will be enough
to overcome the summary judgment against him. Therefore, like the
district court, we will
analyze this issue as if the active operations duty applies.

                 B. Did the Ship Breach Its Duty?
         In order to establish a breach of the active operations duty, a
plaintiff must
show that the defendant "actively involve[d] itself in the cargo
operations and [1] negligently
injure[d] a longshoreman, or [2] [failed] to exercise due care to avoid
exposing longshoremen
to harm from hazards they may encounter in areas, or from equipment, under
the active
control of the vessel during the stevedoring operation." Scindia, 451
U.S. at 167. In Davis,
this Court elaborated on the "due care" requirement in prong 2 of the
active operation duty,
the aspect relevant here. According to Davis, to establish a prima facie
case of breach of the
operations duty, a plaintiff must show:
         (1) that the vessel appreciated, should have appreciated, or with
         the exercise of reasonable care would have appreciated, the
         condition; (2) that the vessel knew, or should have known, that
         the condition posed an unreasonable risk of harm to a longshore
         worker; (3) that a longshore worker foreseeably might fail to (i)
         either discover the condition or apprehend the gravity and
         probability of the harm, or (ii) protect himself or herself from
the
         danger; and (4) that the vessel failed to take reasonable
         precautionary or remedial steps to prevent or eliminate the
         dangerous condition.
16 F.3d at 541.

1. Knowledge
         The first factor Serbin must establish, and thus that we must
evaluate, is
whether "the vessel appreciated, should have appreciated, or with the
exercise of reasonable
care would have appreciated, the condition." Id. The district court
concluded that Serbin had
satisfied this prong of his prima facie test:
         In this case, the plaintiff asserts that the "condition" at issue
was
         that the block was obstructed in such a manner that it could not
         be rotated. Accepting this characterization of the condition, I
         conclude that the plaintiff has presented sufficient evidence
from
         which a jury could conclude that the shipowner — by way of the
         vessel's crew — knew or should have known that the block was
         stuck. As discussed above, there is evidence that the task of
         moving the blocks fell to the crew. Thus, a jury could find that
         the crew in the normal exercise of their duties should have
         discovered that the block was stuck. In addition, in the hatch
         where the accident allegedly occurred, three of the four blocks
         apparently had been turned up; a jury might infer from this fact
         that the crew had attempted to move the fourth block but found
         that it was stuck. It is therefore possible to conclude that the
         crew had actual knowledge of the stuck condition of the block.
Serbin, slip op. at 10. We agree with the district court's reasoning in
this respect. In
addition, Serbin introduced the affidavits of two experts who opined that
the ship's crew
should have discovered the stuck condition of the block both when it
closed the hatches in
Chile and when it opened them in Philadelphia. Therefore, like the
district court, we conclude
that a reasonable fact-finder could determine that the ship's crew
appreciated (or should have
appreciated) the condition of the block.

2. Unreasonable risk of harm
         The second issue we must confront is whether Serbin presented
evidence that
could establish "that the vessel knew, or should have known, that the
condition posed an
unreasonable risk of harm to a longshore worker." Davis, 16 F.3d at 541.
The district court
reasoned as follows:
         Based on the record that has been presented, . . . a jury could
not
         conclude that the vessel should have known that the stuck block
         presented an unreasonable risk of harm to longshore workers.
         Plaintiff has not come forward with any evidence that suggests
         that a stuck block generally creates a hazard and that this
hazard
         should have been known to the crew. The only evidence I can
         find in the record that an obstructed block is hazardous is the
fact
         that in this case the plaintiff was injured attempting to move
it.
         In order to establish that the condition was hazardous, however,
         the plaintiff must show more than the mere fact that an accident
         occurred. On the record before the court, the situation
         encountered by the plaintiff was hazardous not because the block
         was stuck but because it was stuck in conjunction with the fact
         much of the cargo on the deck had been removed, creating a hole
         into which a longshore worker could fall. In order for the crew
         to appreciate that the obstructed block would present this risk
of
         harm, they would have had to anticipate that a longshore worker
         would attempt to move the block after removing much of the
         cargo. No evidence in the record would support imputing this
         knowledge to the crew.
Serbin, slip op. at 10-11. We disagree with this analysis in two major
respects.
         First, while a plaintiff certainly cannot rely on the mere fact
that an accident
happened to establish the existence of a hazard, the district court's
discussion seems to suggest
that a plaintiff must introduce specific evidence beyond the dangerous
condition to show that
that condition is generally hazardous. We disagree. This evidence might
be helpful to a
plaintiff's case, but it is not necessary. For instance, a plaintiff
could not rely on the mere fact
that he fell on a staircase to prevail in a negligence suit against the
owner. But, if the plaintiff
can show that the staircase was in disrepair, the jury is entitled to draw
from that evidence the
reasonable inference that the staircase presented a generally hazardous
condition. So too in
this case. Serbin need not introduce evidence about stuck blocks
generally — but instead could
rely on his evidence about this particular stuck block — if a fact-finder
could draw the
reasonable inference that the stuck block was a general hazard.
         This brings us to our second point of disagreement with the
district court's
analysis: whether a reasonable fact-finder could draw the inference that
the hazard posed an
unreasonable risk of harm. Because Serbin must show that the block posed
a general hazard,
he is entitled to the inferences flowing from the many (i.e., general)
ways a stuck block could
injure someone. See Kleinknecht v. Gettysburg College, 989 F.2d 1360,
1369 (3d Cir. 1993)
("The type of foreseeability that determines a duty of care . . . is not
dependent on the
foreseeability of a specific event."); Suchomajcz v. Hummel Chem. Co., 524
F.2d 19, 28 n.8
(3d Cir. 1975) ("The concept of foreseeability means the likelihood of the
occurrence of a
general type of risk rather than the likelihood of the occurrence of the
precise chain of events
leading to the injury."); Restatement (Second) of Torts § 435(1) ("[T]hat
the actor neither
foresaw nor should have foreseen the . . . manner in which [the harm]
occurred does not
prevent him from being liable.").
         It was not necessary, therefore, that the crew anticipate that "a
longshore
worker would attempt to move the block after removing much of the cargo."
A stuck block
could conceivably have injured someone in any number of ways. For
instance, to name just a
few of the scenarios that could have occurred in Serbin's situation alone,
the block could have
(1) suddenly dislodged and sent him sprawling to the ground, causing
serious injury even if the
ground was not seven feet below; (2) snapped back and crushed his fingers
underneath; or (3)
having never budged despite Serbin's and McGonigle's efforts, seriously
injured Serbin's back
from the strain. Thus, recognizing that the stuck block presented a
general hazard would not
require clairvoyance on the part of the crew that a longshoreman would
hurt himself in this
particular way. A fact-finder could reasonably conclude that the crew
should have recognized
the general danger the stuck block posed.
3. Foreseeable failure of longshoreman to protect against harm
         The third question is whether Serbin introduced evidence that
could support a
fact finding that "a longshore worker foreseeably might fail to (i) either
discover the condition
or apprehend the gravity and probability of the harm, or (ii) protect
himself or herself from the
danger." Davis, 16 F.3d at 541. The district court explained:
         For similar reasons, a jury could not find that a longshore
worker
         would foreseeably fail to (1) discover the condition, (2)
         apprehend its gravity, or (3) protect himself or herself from the
         danger. Once having attempted without success to move the
         block, a longshore worker could be expected to realize that the
         block was obstructed. In fact, the plaintiff acknowledges that
         prior to the accident, he discovered that the block was stuck.
He
         attempted to move it by himself but, finding that he could not,
he
         called on his co-worker McGonigle for assistance. The plaintiff
         has thus presented no evidence that it was foreseeable that a
         longshore worker would fail to discover the obstructed condition
         of the block. Similarly, the plaintiff has not produced evidence
         that it was foreseeable that a longshore worker would fail to
         appreciate the gravity of the block's stuck condition. As
         discussed above, the evidence that has been presented suggests
         that the hazard associated with the stuck block existed only in
         conjunction with the removal of the cargo below. A longshore
         worker attempting to move a stuck block while standing atop a
         seven-foot stack of fruit boxes can be expected to appreciate the
         danger of falling. It is not foreseeable that such a longshore
         worker would fail to protect himself from this danger.
Serbin, slip op. at 11-12. As this passage reveals, the district court's
analysis of this prong of
Davis essentially boils down to a test of "obviousness." We agree with
this characterization.
See Davis, 16 F.3d at 543-44 (discussing this prong in terms of
"obviousness"). But we
disagree with the district court's conclusion for a number of reasons.
         To begin with, this Court has consistently stated that
obviousness is generally a
question for the jury, not often appropriate for resolution by the court
on summary judgment.
See, e.g., id. at 540; Kirsch, 971 F.2d at 1030. We think that reasonable
minds could differ
on whether an "obstructed" block presented an obvious danger under these
circumstances, and
that it is for the fact-finder, therefore, to decide the obviousness issue
in this case.
         Second, we believe that the record in this case does not
establish, especially at
the summary judgment stage, that Serbin knew the block was "obstructed."
Serbin testified:
         Q.   Did you start to move the block? Because you mentioned that
sometimesyou can move the block with just one person.

          A.   Myself?

          Q.   Yes.

          A.   No.    That's why Johnny had to help me.   I couldn't move it
myself.

          Q.   Did you try to move it yourself first?

          A.   Yes, and I couldn't do it.

App. 54A-55A (emphases added).

         John McGonigle, who helped Serbin try to move the block,
testified:
         Q.    [N]ormally — I'm not talking about the day of Mr. Serbin's
accident —
               when you lift a block like this, is it something that one
person can do?

          A.   No, usually two men.

          Q.   When you usually do it, do you use any type of
               equipment or did you just do it by hand?
           . . .

           A.      Yes, we did that a few times, different jobs.

           Q.      Normally, would you use a four-by-four to lift the
                   blocks?

           A.      Well, whatever you could find, a four-by-four, two-by-four.
If there
                   was fruit or anything in the way, you could go over and pick
it up with
                   the chisel (i.e. fork lift) forks.

App. 78A-79A (emphasis added).
         Therefore, Serbin testified only that he could not move the block
by himself.
He did not testify that it was "obstructed" — as opposed to being too
heavy. Moreover, he
answered affirmatively that he could sometimes move a block himself,
providing the
reasonable inference that sometimes he could not move a block himself.
The evidence does
not, then, establish that Serbin knew that the block was "obstructed,"
i.e., stuck by metal
stoppers wedged into the cargo below so that it would not move even with
two men and a
lever. And McGonigle testified that moving a block was usually a two-man
job, presumably
because the blocks are heavy, and that it was not abnormal to use levers
to augment the
strength of the two men. McGonigle's further testimony that other methods
were available
"[i]f there was no fruit or anything in the way" could possibly indicate
that he had experience
with this type of situation, that Serbin presumably shared this
experience, and that the "fruit in
the way" created an obstruction. Or it could just indicate that the fruit
barred one avenue of
access to the block. These questions of inference are for the fact-
finder.
         Granting the reasonable inferences to Serbin, the testimony
establishes that
Serbin simply thought this to be a heavy block that would require
additional assistance —
including both more manpower and a lever — to move. And a fact-finder
could conclude that
Serbin was reasonable in his assumption. If Serbin reasonably did not
apprehend the stuck
condition of the block, he also would have no reason to take steps to
protect himself against it.
A disputed issue of material fact, therefore, precludes summary judgment
on this issue.
         The third reason we disagree with the district court's
conclusions about
foreseeable failure of the longshoreman to protect against harm is that,
if the active operations
duty applies, obviousness is not a complete bar to liability. See Davis,
16 F.3d at 543-45. In
Davis, we held that the potential obviousness of a danger — in that case a
"grease and ice
spot" — would not relieve a shipowner of its active operations duty to
provide reasonably safe
conditions under the Longshore Act, but rather could be taken into account
in apportioning
comparative negligence. Id. at 540. "[E]ven if we shared the district
court's view that a
reasonable jury must conclude that the danger was obvious, known to Davis,
and easily
avoidable," this Court said, "we still would not affirm its order granting
[the defendant]
summary judgment because we cannot conclude as a matter of law that [the
defendant] was 0%
and Davis was 100% at fault." Id. We concluded in Davis that both the
structure and the
legislative history of the Longshore Act demonstrated that Congress, in
enacting the Act,
rejected the common law tort doctrines of contributory negligence and
assumption of risk in
favor of the admiralty concept of comparative negligence. Id. at 544. A
complete bar to
recovery for obvious dangers, we reasoned, would be inconsistent with the
Act because it
would effectively implement these outmoded and congressionally rejected
doctrines. Id.
Rather, a ship could be at fault for failing to correct an unreasonable
danger even if the
longshoreman was also at fault for failing to avoid it: "[I]t is
fundamental that there may be
more than one proximate cause of an injury." Id. (quoting Moore v. M.P.
Howlett, Inc., 704
F.2d 39, 43 (2d Cir. 1983)).
         The ship contends that a subsequent decision of the Supreme
Court, Howlett v.
Birkdale Shipping Co., 114 S. Ct. 2057 (1994), effectively overruled
Davis. We disagree.
Howlett held that obviousness was a bar to liability under a different
aspect of the Act — the
turnover duty. Under this duty, the ship need warn only of "latent
hazards in the cargo stow,"
the Court said, because "[t]o impose a duty upon vessels to exercise
scrutiny over a cargo
loading operation to discover defects that may become hidden when the stow
is complete
would require vessels to inject themselves into matters beyond their
ordinary province." Id. at
2066. The Court made clear that the scope of the turnover duty with
respect to the stow is
"narrow" because "the cargo stow is separate and distinct from other
aspects of the ship." Id.at 2066-67. In contrast, "[t]he vessel's
responsibilities to inspect [the ship itself, and its gear,
equipment and tools] are commensurate with its access and control." Id.
at 2066. "Because
the vessel does not exercise the same degree of operational control over,
and does not have the
same access to, the cargo stow," the Court concluded, "its duties with
respect to the stow are
limited by comparison." Id. at 2067.
         Thus, the Court held that, if the hazard in that case — a sheet
of clear plastic in
the cargo stow — was obvious to a competent stevedore, summary judgment
would be
appropriate for the ship. Moreover, the seminal case in this area,
Scindia, also suggested that
the obviousness bar to liability under the turnover duty did not apply
under the active
operations duty. Compare 451 U.S. at 167 (turnover duty: "[I]f [the
ship] fails at least to
warn the stevedore of hidden danger which would have been known to him in
the exercise of
reasonable care, he has breached his duty . . . ." (emphasis added) with
id. (active operations
duty: "[T]he vessel may be liable if it actively involves itself in the
cargo operations and
negligently injures a longshoreman or if it fails to exercise due care to
avoid exposing
longshoremen to harm from hazards they may encounter . . . ."). By
omitting the modifier
"hidden," the Scindia Court seems to have indicated that the active
operations duty is not
limited to nonobvious dangers. In interpreting the Act as doing away with
an "obviousness"
bar to recovery under the active operations duty in Davis, we
distinguished the narrower scope
of the ship's responsibility under the turnover and intervention duties.
16 F.3d at 537. "This
formulation lies in stark contrast to the rule applicable when the vessel
does not actively
involve itself in the cargo operations," we explained, "in which event the
vessel may rely and
depend on the experience and expertise of the stevedore." Id.
         Indeed, in Davis itself we recognized that this Court had already
decided that
obviousness was a bar to liability under the turnover duty: "The focus on
obviousness in
Kirsch, 971 F.2d at 1031, was linked to the turnover duty and in Derr v.
Kawasaki Kisen
K.K., 835 F.2d 490, 496 (3d Cir. 1987), cert. denied, 486 U.S. 1007
(1988), to the duty to
warn; here, we must come to grips with the active operations duty, a duty
which contrasts
materially from the duties Derr and Kirsch considered." 16 F.3d at 540
(citations omitted).
We explained the different nature of the active operations duty:
         When, however, the hazard occurs due to the vessel's active
         operations, as is plausibly the case here, it no longer is proper
         for the vessel to defer to the stevedore's expertise in handling
         cargo. The problem of apportioning responsibility between the
         vessel and stevedore by manipulating the vessel's standard of
         care to account for both entities disappears, because the vessel
is
         in such events responsible for the injury, and liability, if any,
         should attach to it according to its comparative fault. . . . In
         short, unlike with the turnover duty, which generally applies to
         hidden defects in cargo areas, the vessel cannot rely on the
         stevedore's expertise to protect its workers from the vessel's
         active operations.
Id. at 548 (emphasis added).
         Thus, we conclude that a fact-finder could reasonably determine
that the
obstructed condition was not obvious. We also hold that, if the active
operations duty governs
this case, obviousness will not bar liability, but rather will factor into
a determination of
comparative negligence.

4. Reasonable steps to avoid harm
         The final issue we must evaluate is whether the ship "failed to
take reasonable
precautionary or remedial steps to prevent or eliminate the dangerous
condition." Davis, 16
F.3d at 541. According to the district court:
         [P]laintiff has not shown that defendant "failed to take
reasonable
         precautionary or remedial steps to prevent or eliminate the
         dangerous condition." The vessel had established a mechanism
         for addressing problems with the blocks: as the plaintiff
         acknowledges, it had made it known that the blocks were the
         province of the crew. Indeed, the application of the active
         operations duty proceeds, as discussed above, on the assumption
         that the blocks were the responsibility of the crew. McGonigle
         had already alerted a crew member to the fact that one of the
         blocks was in the down position. Plaintiff, however, attempted
         to fix the problem himself before the crew had a chance to
         remedy the problem. Plaintiff cannot show that defendant
         breached the active operations duty, and this theory must be
         rejected.
Serbin, slip op. at 12. We disagree. Serbin contests that the vessel had
not established a
"mechanism" for dealing with block problems, and we can find nothing in
the record to
support the ship's and the district court's assertion that it did.
Although the active operations
duty does proceed "on the assumption that the blocks were the
responsibility of the crew,"
Serbin introduced evidence that it was customary for longshoremen to
remove hazardous
conditions themselves (including those involving blocks and hatch covers)
so as to unload the
ship quickly and efficiently. If this is true — as we must assume on
summary judgment — the
ship was on notice that a competent longshoreman, perhaps unable to
ascertain that the block
remained "down" because it was stuck, would attempt to move it.
         McGonigle's testimony that he notified a member of the ship's
crew of the
problem is also not dispositive. That another longshoreman notified a
crew member of the
block's incorrect position does nothing to establish that the ship took
reasonable steps to
rectify it. McGonigle testified that he had no idea if the crew member
would take care of the
block — or indeed whether he even spoke English — and the record contains
no evidence that
the ship took any steps toward taking care of the block. And even if the
ship had a system in
place, and had taken steps to move the block (or would have taken steps,
given more time),
these hypothetical factors cannot be enough to establish "reasonably
precautionary or remedial
measures" as long as the ship could reasonably foresee, as we have
concluded that it could,
that, despite such a system, a longshoreman might seek to correct the
problem himself. Under
these circumstances, the ship was left with two options: (1) inspecting
and remedying
dangerous conditions before the stevedore began cargo operations, or (2)
making clear that
longshoremen were not themselves to correct problems on the ship. This
record permits a
reasonable inference that the ship did not do either.
         The ship also argues that it could reasonably rely on Serbin to
stop working
pending the moving of the block because OSHA regulations require him to do
so. These
regulations, the ship contends,
         specifically state that when there is a problem with a hatch
cover
         "that would jeopardize the safety of the [longshoreman, the
         problem] shall be reported at once to the officers in charge of
the
         vessel." 29 C.F.R. § 1918.31(c) (emphasis added).
         Furthermore, the OSHA regulations state that "[p]ending
         replacement or repairs by the vessel, work shall not be performed
         in the section containing the unsafe covers or in adjacent
sections
         unless the flooring is made safe." Id.
         The problem with this argument is that it assumes one of the
ultimate issues in
this litigation: Serbin's knowledge of the condition. Because the
regulations require reporting
of "hatch cover" problems that would "jeopardize the safety" of
longshoremen — rather than
all "hatch cover" problems — Serbin would need to have knowledge of the
block's dangerous
condition in order to comply. Serbin, of course, denies having such
knowledge, and the ship
introduced no evidence to the contrary. Therefore, even assuming that a
regulation governing
"hatch covers" also covers "snatch blocks," this argument is unavailing.
A fact-finder could
reasonably conclude that the ship failed to take reasonable steps to
rectify the block's
condition.

                         III. CONCLUSION
         Serbin has produced evidence from which a reasonable fact-finder
could
conclude that the ship breached its duty to him under section 5(b) of the
Longshore Act. We
will, therefore, reverse the order of the district court granting summary
judgment and remand
for further proceedings consistent with this opinion.
