                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 12-1907
                                    ____________

                      JAMES FIOCCA and AMY FIOCCA, H/W

                                          v.

              TRITON SCHIFFAHRTS GMBH and LOMBOK STRAIT
                SCHIFFFAHRTSGESELLSCHAT MBH & CO. KG

                          James and Amy Fiocca, Appellants
                                    ___________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Criminal No. 1-10-cv-00208)
                    District Judge: Honorable Joseph H. Rodriguez
                                      ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                December 20, 2012

    Before:   MCKEE, Chief Judge, SLOVITER, and VANASKIE, Circuit Judges.

                                (Filed: June 27, 2013)
                                     ___________

                                     OPINION
                                    ___________

VANASKIE, Circuit Judge.

       James and Amy Fiocca appeal from the District Court‟s grant of summary

judgment in favor of Triton Schiffahrts GmbH, and Lombok Strait Schifffahrtsgesellschat

mbH & Co. KG, hereinafter Defendants. The Fioccas argue that genuine issues of
material fact preclude adjudication of their personal injury claims brought under the

Longshore and Harbor Workers‟ Compensation Act (“LHWCA”), 33 U.S.C. § 905(b).

For the reasons that follow, we agree with the Fioccas and will vacate the District Court‟s

entry of summary judgment.

                                              I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       On June 25, 2007, the M/V Lombok Strait (“LOMBOK”), owned and operated by

Defendants, was berthed at the Broadway Del Monte Terminal in Camden, New Jersey,

where it arrived on a bi-weekly basis. The LOMBOK is a refrigerated cargo carrier and

was loaded with fruit. James Fiocca, an experienced longshoreman, was employed by the

Delaware River Stevedores and was discharging cargo from Hold No. 1 of the LOMBOK

at the time of the incident.

       Hold No. 1 is a raised hold that is accessed on the inshore side of the vessel via

ladder and on the offshore side of the vessel by way of a shorter ladder and a set of stairs.

Fiocca had boarded the vessel around 3:00 PM via the gangway on the inshore side of the

vessel, and walked to Hold No. 1 where he ascended the ten foot ladder. Fiocca was later

instructed by his supervisor to go ashore and to leave via the offshore side of the vessel of

Hold No. 1 because cargo was hanging over top of the inshore ladder in Hold No. 1,

making departure on the inshore side dangerous.

       Fiocca walked towards the stairs on the offshore side of Hold No. 1, grabbed the

hand railing, and his left foot went out from underneath him. Fiocca fell down the stairs

                                              2
to the bottom of the landing. When he reached the bottom of the stairs, he noticed that

the area was wet. The accident was witnessed by Robert Revak, Fiocca‟s coworker, who

confirmed the presence of the water with a sheen of oil at the top of the stairs.

       The Fioccas instituted a negligence action against Defendants pursuant to the

LHWCA. At deposition, Michael Renzi, the vessel foreman, testified that he observed

the greasy water at the 3:00 PM shift change and notified the vessel‟s crew of the

problem. Renzi observed the greasy water again at 4:40 PM, but failed to notify any of

the crew members about the continuing problem because no crew members were present.

Renzi testified that he was unaware of the root cause of the moisture, but that it was not

unusual for there to be water and oil on the deck of the vessel.

       The vessel‟s Chief Officer, Kirill Vereshchak, testified that the water was

condensation formed because of the refrigerator compartment below the stairs. (App.

148, 16). The difference in temperature between the refrigerated hold and the deck

causes condensate to form once the vessel comes to port.

       Captain Ahlstrom, a forensic expert, opined that “James Fiocca was exposed to an

unsafe condition while working as a stevedore aboard the M/V Lombok Strait and was

caused to fall thereby sustaining injuries.” (App. 247). He concluded that “the vessel

created this unsafe condition and did not correct the condition after being informed of this

condition by Mr. Michael Renzi.” (App. 247). “It is clear that this condition should have

been corrected in compliance with the company‟s own Quality Assurance Documents

which states these areas should be kept dry during cargo loading and discharging.” (App.

247). Captain Ahlstrom finally concluded that “Fiocca was performing his job as

                                              3
longshoremen on the day of the accident in a safe and competent manner and was in no

way responsible for his injuries.” (App. 247).

       Following discovery, Defendants moved for summary judgment on the ground

that the Fioccas had failed to adduce any evidence that the vessel owner breached any

duty of care owed to the longshoremen working on the LOMBOK. The District Court

granted summary judgment in favor of Defendants. The Fioccas filed this timely appeal.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. § 1332, and we have appellate

jurisdiction under 28 U.S.C. § 1291.

                                            A.

       We exercise plenary review over a District Court‟s grant of summary judgment,

United States v. Allegheny Ludlum Corp., 366 F.3d 164, 171 (3d Cir. 2004) (citing

Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000)), using

the same standard employed by the District Court. Azur v. Chase Bank, USA, Nat’l

Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). Summary judgment is proper if “the pleadings,

depositions, answers to interrogatories, and admissions on file… show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine if supported by evidence such

that a reasonable jury could return a verdict in the nonmoving party‟s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if, under the governing

substantive law, a dispute about the fact might affect the outcome of the suit. Id. The

facts will be viewed in the light most favorable to the nonmoving party and all inferences

                                             4
drawn in that party‟s favor. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d

Cir. 2000).

                                             B.

       A vessel may be liable to a longshore worker under the LHWCA when the vessel,

whether acting jointly with a longshoreman or individually, breached a duty owed to the

injured worker. Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 540

(3d Cir. 1994). The Supreme Court has enumerated three general duties that vessel

owners owe to longshoremen: (1) the turnover duty, (2) the active operations duty, and

(3) the duty to intervene. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S.

156, 167 (1981). Fiocca alleges that both the active operations duty and the duty to

intervene were breached by Defendants.

       The active operations duty requires a vessel owner to exercise reasonable care to

prevent injuries to longshoremen in the areas of the ship over which the vessel remains in

active control after stevedoring operations have begun. Scindia, 451 U.S. at 167-68. The

active operations duty is triggered where the vessel owner substantially controlled or was

in charge of “(i) the area in which the hazard existed, (ii) the instrumentality which

caused the injury, or (iii) the specific activities the stevedore undertook.” Davis,16 F.3d

at 540. The duty to intervene requires the vessel owner to intervene and correct any

dangerous conditions that arise during stevedoring operations when it has “actual

knowledge both of the hazard and that the stevedore, in the exercise of „obviously

improvident‟ judgment, means to work on in the face of it and therefore cannot be relied



                                              5
on to remedy it.” Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir.

1997) (quoting Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th Cir. 1992)).

                                              1.

       In finding insufficient evidence to support a determination that the active

operations duty had been breached, the District Court noted that Fiocca‟s own “gang

boss” was in the area of the purported fall for most of the day and was aware of the

conditions, but failed to “see a need to cease operations.” (App. 10). The District Court

concluded that it did “not appear that the vessel‟s crew was actually exercising control of

the area at the time of Plaintiff‟s fall,” making the active operations duty inapplicable.

(App. 10). The Fioccas argue that the District Court engaged in improper fact finding

when concluding that the location of the accident was not under the active control of the

Defendants.

       We agree. Fiocca was injured outside of the cargo hold area, in an area used by

stevedores to traverse the vessel. The vessel captain testified that the traverse space is not

a “working place” for the stevedores:

              A: “Their duty is to be inside the deckhouse, to control the
              operation of the trolley, of the mechanism itself, to watch for
              whole cargo operations. In case if there are any other
              questions from their side, from stevedore side, they always
              call duty officer. But cleaning or wiping off the condensate,
              water condensate from deck, that is never done, that has never
              been done on the fleet. That‟s normal, just a spot of water. If
              its outside – actually that‟s not a working place, working
              position where the stevedores are going to work.”
              Q: Typically, the stevedore is not working there?
              A: “They do not work there.”



                                              6
(App. 150, 22-23). If the traverse space is not considered a working space for

stevedores, a jury could reasonably find that the vessel remained in active control of that

area at the time of the injury.

       The conclusion that a vessel owner may be liable for injuries resulting from oil

spills in traverse areas is supported by the legislative history to the 1972 Amendments to

the LHWCA. The legislative history suggests that a ship owner may be liable in the

following circumstances:

              [W]here a longshoreman slips on an oil spill on a vessel‟s
              deck and is injured, the proposed amendments to Section 5
              would still permit an action against the vessel for negligence.
              To recover he must establish that: 1) the vessel put the foreign
              substance on the deck, or knew that it was there, and willfully
              or negligently failed to remove it; or 2) the foreign substance
              had been on the deck for such a period of time that it should
              have been discovered and removed by the vessel in the
              exercise of reasonable care by the vessel under the
              circumstances.

H.R. Rep. No. 92-1441, at 4704 (1972).

       Similar circumstances existed here. Fiocca‟s “gang boss” testified that he

observed the greasy water at shift change, around 3:00 PM, and informed the vessel crew

of the problem. In accordance with past experience, Renzi testified that after he reported

the problem to the mate, he had the expectation that the crew would clean it up. (App.

162, 10-11). Renzi‟s expectation was supported by Captain Ahlstrom, the Fioccas‟

expert witness, who observed that the vessel‟s quality assurance documents stated that

the vessel would keep the area in question dry during loading and unloading. Viewing

the evidence in the light most favorable to the Fioccas, it is clear that a reasonable jury


                                              7
could have found that the vessel breached its duty of care. Therefore, there exist genuine

issues of fact; i.e., who controlled the traverse area at the time of the accident and, if the

vessel was in active control of the traverse space, whether the vessel failed to exercise

reasonable care to discover any condensate and eliminate any resulting slip hazard.

These issues are material to the vessel owner‟s liability under the active operations

theory. Thus, summary judgment was improper.

                                               2.

       With regard to the “duty to intervene,” the District Court held that the Defendants

“should have been able to rely on the stevedore to avoid or eliminate the alleged hazard

in this case,” because it was not uncommon for condensate to form on the deck above the

refrigerated hold. (App. 11). In reaching this conclusion, the District Court referenced an

Occupational Safety and Health Administration (“OSHA”) longshoring regulation,

codified at 29 C.F.R. § 1918.91(b), and our decision in Kirsch v. Plovidba, 971 F.2d 1026

(3d Cir. 1992).

       The OSHA regulation cited by the District Court provides that a stevedore is only

responsible for “eliminat[ing] conditions causing slippery walking and working surfaces

in immediate areas used by [the stevedores].” As noted above, there is a genuine dispute

of fact as to whether the stairs used by Fiocca to descend from Hold No. 1 remained

under the active control of the vessel. There is evidence that the vessel was made aware

of the hazardous condition by Fiocca‟s supervisor a couple of hours before Fiocca‟s

accident. Under these circumstances, a jury could reasonably conclude that the vessel

was aware of a hazardous condition and, because egress from Hold No. 1 via ladder on

                                               8
the in-shore side of the vessel was obstructed, a stevedore would encounter the slippery

conditions without appreciating the seriousness of the hazard. Accordingly, summary

adjudication of the duty to intervene issue was not warranted.

       Our decision in Kirsch does not compel a contrary result. In Kirsch, we addressed

only the turnover duty in the context of obvious hazards. 971 F.2d at 1029-30. The

turnover duty is not implicated here. Furthermore, whether the wet condition that

purportedly caused Fiocca to fall down the stairs was obvious is a disputed question of

fact to be resolved by the jury. See Davis, 16 F.3d at 540. Even if the hazardous

condition was obvious as a matter of law, Kirsch did not hold that the vessel is

automatically absolved of all responsibility. Instead, Kirsch recognized that there are

circumstances when “a shipowner cannot reasonably rely on longshore workers to avoid

obvious hazards,” id. at 1030, and that “[i]n many cases, this fact intensive question will

be inappropriate to decide on summary judgment….” Id. This is such a case.

                                            III.

       For the foregoing reasons, we will vacate the District Court‟s judgment, and

remand for further proceedings.




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