                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2004

Marino v. Kent Line Intl
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4263




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Recommended Citation
"Marino v. Kent Line Intl" (2004). 2004 Decisions. Paper 591.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/591


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                    No. 03-4263


                                 JOSEPH MARINO,

                                               Appellant

                                          v.

                         KENT LINE INTERNATIONAL,
                       d/b/a VOYAGEUR SHIPPING LTD.;
    SLS, INC., d/b/a HOLT OVERSIGHT AND LOGISTICAL TECHNOLOGIES;
           INCHCAPE SHIPPING; M AUREEN LEVY; JOSEPH LEVY;
                   TRANS OCEAN MARITIME SERVICES, INC.
                               _______________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 02-cv-04488)
                     District Judge: Honorable Berle M. Schiller
                                  _______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 28, 2004

               BEFORE: RENDELL and COW EN, Circuit Judges, and
                     SCHWARZER,* Senior District Judge

                            (Opinion Filed: June 17, 2004)



      *
       The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.

                                          1
                               ________________________

                                OPINION OF THE COURT
                               ________________________

SCHW ARZER, Senior District Judge:

               Longshoreman Joseph Marino appeals an order granting summary

judgment on his tort claims against Kent Line International (“Kent Line”), the owner of

the vessel he was hired to unload; Kent Line’s dockside agent, Inchcape Shipping

(“Inchcape”); a stevedoring consulting company, Holt Oversight and Logistical

Technologies (“Holt”); and Holt’s agent, Joseph Levy. The district court had jurisdiction

pursuant to 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We

will affirm.

               Because the parties are familiar with the facts, we do not recite them at

length. On June 22, 2000, the M/V KENT VOYAGEUR, Kent Line’s vessel that was

carrying a cargo of steel beams and other construction equipment, docked in Gloucester,

New Jersey. On the evening of that day, James McLaughlin, a representative of the

stevedoring company Trans Ocean Maritime Services (“Trans Ocean”), 1 inspected the

ship to decide whether Trans Ocean’s longshoremen could commence unloading the

cargo. McLaughlin noted that the beams in hold #3 had been jostled during the voyage

and that they were no longer neatly stacked or tied together in bundles. McLaughlin



       1
      Trans Ocean was a defendant in this action, but Marino does not appeal the grant
of summary judgment in its favor.

                                              2
decided that the disorder would not prevent the longshoremen from starting their work,

and the longshoremen began that evening.

              Marino and other Trans Ocean longshoremen resumed unloading cargo

from holds #1, #2 and #3 the next morning. The cargo in hold #1 was unloaded from

7:00 a.m. until 12:00 Noon. The stevedore’s log reflects that the longshoremen used a

shore-based crane throughout this period, although the ship’s log shows that the

longshoremen ceased using the shore crane at 7:40 a.m. and switched to the ship’s own

crane. Marino was engaged in unloading steel beams from cargo hold #3. At about 8:30

a.m., one of the beams became unbalanced and fell on Marino’s foot, causing serious

injury. Marino claims that the ship listed at the moment of the accident, causing the beam

to fall.

              After Marino filed this action in state court, the defendants removed it to

the federal court. The District Court granted summary judgment as to each defendant and

Marino timely appealed.

              “We . . . exercise plenary review over all . . . issues decided on summary

judgment.” Egervary v. Young, 366 F.3d 238, 245 (3d Cir. 2004). “In so doing, we apply

the same test applied by the District Court. Thus, summary judgment is appropriate if . . .

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Id. at 245-46 (internal quotation marks omitted). We find

that summary judgment was appropriate as to each defendant.



                                              3
                                      DISCUSSION

              Although the 1972 amendments to the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), codified at 33 U.S.C. § 905(b), were designed to “shift

more of the responsibility for compensating injured longshoremen to the party best able to

prevent injuries, the stevedore-employer,” Howlett v. Birkdale Shipping Co., S.A., 512

U.S. 92, 97 (1994), the statute preserves a longshoreman’s right to sue a shipowner for

certain types of negligence. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451

U.S. 156, 165-67 (1981); Howlett, 512 U.S. at 97. The LHWCA leaves shipowners with

three duties to longshoremen. “The first, which courts have come to call the ‘turnover

duty,’ relates to the condition of the ship upon the commencement of stevedoring

operations.” Howlett, 512 U.S. at 98 (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. (citing Scindia, 451 U.S. at 167). “The third duty,

called the ‘duty to intervene,’ concerns the vessel’s obligations with regard to cargo

operations in areas under the principal control of the independent stevedore.” Id. (citing

Scindia, 451 U.S. at 167).

I.   KENT LINE

              A.     Turnover Duty




                                              4
              Generally, “shipowners engage a stevedore for its expertise in cargo

operations and are entitled to assume that a competent stevedore will be able to identify

and cope with defects in the stow.” Howlett, 512 U.S. at 104. Thus, the turnover duty is

limited; it comprises a duty to provide safe conditions and a corollary duty to warn of

known, nonobvious hazards. Scindia, 451 U.S. at 167.

              We reject Marino’s contention that he raised a genuine issue as to whether

Kent Line breached its duty to warn when it failed to issue a “letter of protest” telling the

stevedore that the vessel had encountered stormy weather that caused the steel beams to

become unbalanced. A shipowner’s duty to warn about latent dangers in the cargo stow

“is a narrow one,” extending only to “hazards that are not known to the stevedore and that

would be neither obvious to nor anticipated by a skilled stevedore in the competent

performance of its work.” Howlett, 512 U.S. at 105; see also id. at 104 (“There can be no

recovery . . . for a vessel’s failure to warn of dangers that would be apparent to a

longshoreman of reasonable competence.”). Here, even Marino admitted to observing

that the bundles had broken and the beams “were loose and all over the place.” The

dangers of such a condition would be obvious to any competent stevedore. See Derr v.

Kawasaki Kisen K.K., 835 F.2d 490, 496 (3d Cir. 1987) (affirming finding that a cargo

shift in the hold was apparent to the stevedore, and finding that “no warning the ship

could have given would have added to the knowledge of a competent stevedore”);

Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1259 (9th Cir. 1998) (finding it



                                              5
“incredible” that the stevedore would not be aware of the dangerous condition where steel

pipes in the hold were piled unevenly and at various angles to one another).

              We also reject Marino’s contention that he raised a genuine issue as to

whether Kent Line negligently failed to warn the stevedore to use only the on-shore crane

when unloading cargo hold #1. The importance of the crane used stems only from

Marino’s contention that the switch between the on-shore and on-ship cranes caused the

ship to list. But the ship’s log shows that the switch occurred at 7:40 a.m. Since

Marino’s accident did not occur until 8:30 a.m., there is no evidence that the switch

caused the ship to list at the moment of Marino’s injury. Moreover, Kent Line did warn

Trans Ocean in a memorandum that some cargo in hold #1 was heavy and might require

the use of a shore crane. A competent stevedore would recognize situations in which a

shore crane should be used, especially when warned beforehand. The weight of the cargo

in hold #1 was therefore not a latent hazard. Even if the ship’s crane was used to lift too-

heavy cargo, the mistake was made by Marino’s employer, not Kent Line.

              B.      Active Operations Duty

              The “active operations” duty arises when the shipowner “substantially

control[s] or [is] in charge of (i) the area in which [a] hazard existed, (ii) the

instrumentality which caused the injury, or (iii) the specific activities the stevedore

undertook.” Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 540 (3d

Cir. 1994).



                                               6
              A jury may find that the vessel exercised control or took
              charge over an area either because it never turned exclusive
              control of the area over to the stevedore but retained
              substantial control, or because the vessel substantially
              interfered, by invitation or otherwise, with the stevedore’s
              exercise of exclusive control, such as by actively intervening
              in the area.

Id. at 541.

              Marino asserts that several documents demonstrate such control by Kent

Line, but we conclude that none raise a genuine issue of fact. The various emails and

memoranda show only that Kent Line made pre-arrival arrangements with the stevedore

for unloading the ship, tracked the activities of the longshoremen as they unloaded the

ship, and later complained about delays in the unloading operations. None of the

documents indicates in any way that Kent Line “actively controlled” the longshoring

operations or the hold on the day of Marino’s injury. Cf. Davis, 16 F.3d at 541 (finding a

triable issue of fact on the active operations duty because the shipowner’s employees

remained on board and performed maintenance on a ship’s deck where the longshoremen

were working, including spraying the deck with water—in freezing weather—while the

longshoremen worked).

              Marino also contends that Kent Line had active control over the

longshoring operations because it had “substantial control over whether the vessel listed.”

As discussed above, however, Marino’s arguments concerning listing are unavailing; he




                                             7
has failed to connect the alleged listing with any act by Kent Line. The evidence of

record does not suffice to raise a genuine issue of fact.

              C.      Duty to Intervene

              Marino next contends that Kent Line breached its duty to intervene. We

reject Marino’s argument because he failed to raise it below. Union Pac. R.R. Co. v.

Greentree Transp. Trucking Co., 293 F.3d 120, 126 (3d Cir. 2002) (holding that an

appellant may not “advance new theories or raise new issues [on appeal] to secure a

reversal” of a district court’s summary judgment order).

              D.      Marino’s Rule 56(f) Motion

              Marino contends that the district court erred in granting summary judgment

in the face of his pending motion under Federal Rule of Civil Procedure 56(f) for

additional discovery. Marino sought to take the depositions of the captain and two mates

of the KENT VOYAGEUR. He argues that their testimony is relevant to what happened

to the cargo at sea, to the survey and inspection of the cargo, to the failure to issue a letter

of protest, and to the listing of the vessel. “[W]e review a claim that the district court has

prematurely granted summary judgment for abuse of discretion.” Pastore v. Bell Tel. Co.,

24 F.3d 508, 510 (3d Cir. 1994). Here, Marino failed to “specify what particular

information [was] sought; [and] how, if uncovered, it would preclude summary

judgment.” Id. at 511 (internal quotation marks omitted) (quoting Dowling v. City of

Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988)). Moreover, as the foregoing discussion



                                               8
shows, the testimony Marino sought to elicit would not have precluded summary

judgment The district court did not abuse its discretion.

II.    INCHCAPE

              Marino’s contention that Inchcape violated its active operations duty and its

duty to intervene are similarly unavailing.2 His active-operations-duty argument relies on

the same evidence as his argument about Kent Line’s duty: the correspondence between

Kent Line and Inchcape discussing the cargo operations plans. As we held above, that

correspondence contains no evidence that either company was actively involved in the

unloading operation. Also as discussed above, Marino’s duty-to-intervene argument is

waived because he did not raise it in the district court.

III.   HOLT

              We reject M arino’s argument that a Holt employee, Levy, was negligent in

allowing the longshoremen to use the ship’s crane to unload hold #1. As discussed

above, Marino has produced no evidence that the use of the ship’s crane had anything to

do with his accident.

IV.    LEVY

              Finally, the district court did not abuse its discretion in dismissing the

complaint against Levy for failure to perfect service. Federal Rule of Civil Procedure



       2
        The liability standard for a general agent is the same as that for a shipowner under
the LHW CA. See 33 U.S.C. § 902(21) (including both shipowners and agents in the
definition of “vessel”).

                                               9
4(e) allows service of a complaint at a person’s dwelling, or by any method permissible

under the law of “the state in which the district court is located, or in which service is

effected.” Here, Marino attempted to serve Levy by delivering the summons and

complaint to Holt’s offices in New Jersey. Marino conceded that the court lacked

jurisdiction over Levy who lived and worked in New Jersey. Moreover, as the district

court found, “[i]t is undisputed . . . that Levy [no longer worked at Holt] and that

Plaintiff’s counsel was informed of this fact immediately after the summons was

delivered.” Thus, even if Pennsylvania law, which allows service at “any office or usual

place of business of the defendant,” PENNSYLVANIA R. C IV. P RO. 402(a)(2)(iii), applied,

service was not properly effected. Finally, the district court did not abuse its discretion

in refusing to grant an extension of time to perfect service where it had already granted

one extension to enable Marino to serve Levy at his home, and trial was just weeks away.

See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 n.4 (3d Cir. 1996).

                                      CONCLUSION

              For the reasons stated, the judgment of the district court will be

AFFIRMED.




                                              10
