filed: February 22, 1994; As Corrected April 11, 1994.
On Appeal From the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 92-00096.
Before: Becker and Stapleton, Circuit Judges, and Restani, Judge, United States Court of International Trade*fn*
This longshore worker's personal injury action arises out of a shipboard slip-and-fall. Plaintiff Richard Davis appeals from the district court's grant of summary judgment in favor of defendant Portline Transportes Maritime Internacional ("Portline"). We will affirm in part, but because we conclude that Portline may have breached one of its duties toward Davis, we will reverse in part and remand for further proceedings.
On the bitter cold and blustery evening of January 7, 1992, Davis was injured while working aboard the Baltasar Alvares, a cargo ship owned by the defendant Portline. Carrying a cargo of bulk and bagged cement, she lay docked at Pier 60 on the Delaware River at Philadelphia for unloading. Davis was in the employ of NorVal Cement Company ("NorVal"), a stevedore and the operator of Pier 60.
NorVal had equipped the pier with a "siwertell," a large device used to remove bulk cement from the hold of a ship. A siwertell is moved on wheels and has a boom that extends over the ship to access its hatches. Attached to the end of the boom is a funnel, at the far end of which is an auger-like spiral that longshore workers maneuver to bore and vacuum cement out of the hold of a ship, ensuring that it constantly remains within a pile of bulk cement. A conveyor belt carries the cement sucked from the hold along the boom to a discharge valve or kettle, from which it is transferred into warehouses on the pier. A longshore worker operates the siwertell while perched on a catwalk alongside the hatch. The operation emits a large amount of cement dust in the vicinity of the worker.
On the night of his injury, January 7, 1990, Davis, who regularly worked the late shift (7:00 p.m. to 7:00 a.m.), was assigned to operate the siwertell from the Baltasar Alvares ' Number 5 hatch. When Davis arrived for work, a malfunctioning (leaking) discharge valve -- which causes an unusually heavy amount of cement dust to spill onto the deck -- had brought the discharge operation to a standstill, and work did not resume until 9:00 p.m. Following the completion of repairs, Davis' co-worker Frank Socha took the first shift, and Davis did not begin operating the siwertell until around 10:00 p.m.
At that time, Davis ascended the gangplank to take up his post. Once on board, he turned right to walk the 25-30 feet along the inshore deck to the Number 5 hatch. He observed several black grease spots along the railway of the ship, each a thin layer about two-three feet in diameter, but walked around them without giving them much thought and continued to his station without stepping into the grease or noticing any other foreign substance on the walkway. There he relieved Socha and climbed onto the catwalk, positioned three feet off the ground, to begin his hour-long rotation.
The source of the spots Davis had encountered is unknown. Davis did not notify the ship's crew or his gang boss Randolph of the spots because he did not consider grease spots on the deck unusual and, as a rule, did not complain about them. Davis testified that the longshore workers would sometimes blanket grease spots with cement dust to eliminate the slippery conditions, but that it was the customary responsibility of the ship's crew to cover or clean them up. On that particular night, however, he did not notice any member of the crew present on the ship cleaning any grease spots or covering them with an absorbent.
When Davis took his position, the surrounding area of the ship was dark, but poor lighting was typical, and Davis did not complain about it. A light on top of the siwertell, which shone through the hatch into the hold so the longshore worker could properly position the funnel, was the sole source of illumination. The dust that night was heavy, as usual, because the discharge operation by its nature emits copious amounts of cement dust around the worker.
While Davis was operating the siwertell, the gang boss Harlington Randolph witnessed a crew member wearing a blue uniform -- the second mate -- hosing down the deck with a large hose, washing cement dust deposited on the deck over the edge of the ship into the Delaware River. He was positioned at the back of the ship, but was spraying the water along its entire length. The temperature was frigid. Randolph recalled he had to wear two hats and sweaters because it was "freezing, cold." But Randolph did not see any crew members apply sawdust or any other absorbent material to the deck afterwards.
Randolph testified that at approximately 11:00 p.m., he communicated with Davis by walkie-talkie to notify Davis he was coming to relieve him. After mounting the gangplank (apparently for the first time that evening), Randolph turned right toward Davis, whistled at him on the catwalk, and bid him to take a break. Davis dropped down from the catwalk and started to walk "maybe a couple feet" toward Randolph when he slipped and fell on "grease and ice [which was] all mixed up . . . because it was frozen." Davis testified that he did not notice the slippery spot on which he fell until he had fallen into it, perhaps because a layer of cement dust covered it. As noted above, the area was poorly lit, and Davis approached the area with the only light, attached to the top of the siwertell, behind him.
The spot where Davis slid was located in the middle of the walkway, which was about five feet wide, and Davis first noticed it after he fell. When questioned as to the source of the spot and wetness, and how long it had been there, Davis stated that he did not know, but opined that it was perhaps caused when some crew member hosed down the deck to remove the cement dust while Davis was working at his station.
Randolph was within ten feet of Davis when the latter fell. He described the slippery patch as "cement frozen up from the water" which looked like chalk; he also noticed that Davis had left skid marks where he had slipped. Randolph helped Davis up and rushed him to the hospital. Davis underwent treatment, but was able to return several hours later to complete his shift. At that time he easily walked past the spot where he had earlier fallen. At dawn, when visibility had improved, Davis noticed that nobody had yet cleaned up the spot where he had slipped.
Davis brought this suit against the vessel under § 5(b) of the Longshore and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C.A. § 905(b) (1986),*fn2 to recover damages for the physical injuries he sustained. The district court had jurisdiction pursuant to 28 U.S.C.A. § 1331 (1993), as the case involves a cause of action arising under federal law, and also under 28 U.S.C.A. § 1332(a)(2) (1993), since the alleged damages exceeded $50,000 and Davis is a citizen of Pennsylvania, whereas Portline is a Portuguese corporation with its principal place of business located outside of the United States. We have jurisdiction pursuant to 28 U.S.C.A. § 1291 (1993).
In reviewing the district court's grant of summary judgment we exercise plenary review, and employ the same standard applicable in the district court. E.g., Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1018 (1991). As to that standard, we apply the now familiar jurisprudence of the Supreme Court's trilogy of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986), which has been so oft cited that we simply set it forth in the margin.*fn3
II. GOVERNING LEGAL PRINCIPLES:
THE DUTIES OF A SHIPOWNER
The seminal case in this area is Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S. Ct. 1614 (1981).*fn4 There the Supreme Court interpreted Congress' 1972 amendment of § 5 of the Act as replacing the old doctrine of seaworthiness, according to which a vessel was generally strictly liable for injuries longshore workers suffered while on board, with a negligence standard that the courts were to develop by applying general land-based doctrines of tort law. The Supreme Court pursued that mission in Scindia.
In Scindia the Court recognized at least three distinct duties that a shipowner owes a stevedore (and its longshore employees) under § 5 of the Act, namely, the "turnover duty""duty to warn," the "active operations duty," and the "duty to intervene." Because the duty on which our decision turns is the active operations duty, we essentially limit our Discussion thereto. We do pause to note, however, why we believe the district court properly granted Portline summary judgment with respect to the other two duties, both of which Davis alleged Portline breached. The turnover duty/duty to warn applies only at the moment the vessel initially turns control of the ship over to the stevedore, see Kirsch v. Plovidba, 971 F.2d 1026, 1029 (3d Cir. 1992), but Davis has not presented any evidence sufficient to show that the hazardous spot on which he fell existed at the time Portline turned the ship over to NorVal (indeed, the evidence strongly suggests the hazard formed only shortly before Davis' slip), or that Portline knew it existed at that point in time.*fn5 With respect to the duty to intervene, Davis proffered no evidence admissible under Federal Rule of Civil Procedure 56, see Celotex, 477 U.S. at 324, 106 S. Ct. at 2553, tending to show that Portline actually knew of the hazard,*fn6 nor did he cite any duty Portline had to inform itself of the hazard, and hence the duty to intervene did not arise, see Scindia, 451 U.S. at 172, 101 S. Ct. at 1624; Kirsch, 971 F.2d at 1029.
As to the active operations duty, Scindia explained that "the 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 in areas, or from equipment, under the active control of the vessel during the stevedoring operation." 451 U.S. at 167, 101 S. Ct. at 1622. This formulation lies in stark contrast to the rule applicable when the vessel does not actively involve itself in the cargo operations, in which event the vessel may rely and depend on the experience and expertise of the stevedore. Thus, for example, under the other two duties the vessel need not supervise or inspect the stevedoring operation to discover and correct dangerous conditions which develop within the cargo areas as a result of those operations. See id. at 168-69, 101 S. Ct. at 1622-23.
The active operations duty applies to those areas under the vessel's active control, even if the stevedore shares control with the vessel or if at some earlier time the area was under the stevedore's exclusive control. See Moore v. M.P. Howlett, Inc., 704 F.2d 39, 40-41 (2d Cir. 1983) (upholding a jury verdict in favor of a longshore worker who slipped on an obviously greasy, icy deck of a barge-crane which the vessel and stevedore jointly controlled and operated). The duty incorporates general principles of land-based negligence law, Hodges v. Evisea Maritime Co., S.A., 801 F.2d 678, 684 (4th Cir. 1986), cert. denied, 480 U.S. 933, 107 S. Ct. 1572 (1987); see Scindia, 451 U.S. at 165 n.13, 167, 101 S. Ct. at 1621 n. 13, 1622, and we will repeatedly refer to these principles in the ensuing Discussion.
III. THE DISTRICT COURT'S OPINION
The district court granted summary judgment for Portline, finding in substance that it had breached none of the Scindia duties. In concluding that Portline had not breached its turnover duty, the court reasoned:
Regardless of whether the slippery area on the deck was ice or grease or a combination of both and what created the condition, the area did not constitute the type of unavoidable hazard that would render the shipowner liable to plaintiff. Plaintiff testified that he noticed the slippery area and avoided it when he walked to his post at the start of his shift. Such a condition does not expose the shipowner to liability. See Kirsch, 971 F.2d at 1030; cf. Moore v. M.P. Howlett, Inc., 704 F.2d 39, 41 (2d Cir. 1983) (reversing trial court that granted shipowner judgment notwithstanding the verdict in case in which "the entire deck . . . had been covered for at least three days with ice, water and grease"); Celestine v. Lykes Bros. S.S. Co., 729 F. Supp. 691, 692 (N.D. Cal. 1989) (granting shipowner's motion for summary judgment in case brought by plaintiff who tripped over a coil of wire that "he had passed . . . many times without incident prior to the accident").
Davis v. Portline Transportes Maritime Internacional, No. 92-0096, mem. op. at 9-10 (E.D. Pa. Apr. 7, 1993). This excerpt clearly reveals that the district court hinged its Conclusion on the assumption that the place Davis slipped was the same place that he had passed on his way to the Number 5 hatch. Accordingly, the district court must have surmised the place where Davis slipped was "obvious," known to Davis to be slippery, as well as readily avoidable.
The court next addressed Davis' argument that Portline breached its active operations duty by hosing down the deck and thereby creating a slippery condition during the stevedoring operation. Davis argued that this act exposed him to an unreasonable risk of harm and that, alternatively, by not warning him of the danger, Portline breached its duty to intervene. The court rejected Davis' arguments:
It does not matter which duty applies because the slippery spots on the deck did not constitute the type of hazardous condition for which the shipowner would be liable. First, . . . plaintiff could avoid the slippery spots while walking along the deck. Moreover, neither plaintiff nor Randolph testified that the slippery spots constituted a hazardous condition for an experienced longshoreman.
Because the slippery spots on the deck were both obvious and avoidable, they did not constitute the type of hazardous condition for longshoremen that would expose a shipowner to liability.
Id. Mem. op. at 10-11. Again, besides its explicit determination that the "slippery spots [on which Davis fell] were both obvious and avoidable," the district court impliedly assumed the spot where Davis slipped was obvious: it applied the analysis the Supreme Court in Scindia and this Court in Kirsch forged for obvious dangers in an area under the stevedore's control, namely, whether an experienced stevedore and its experienced longshore worker employees could, with the exercise of ...