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Serbin v. Bora Corp.

September 13, 1996

JOHN SERBIN,

APPELLANT

v.

BORA CORP., LTD.

APPELLEE



On Appeal From the United States District Court For the Easter District of Pennsylvania

(D.C. Civ. No. 94-cv-03030)

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

BECKER, Circuit Judge.

Argued: April 25, 1996

Filed September 13, 1996)

OPINION OF THE COURT

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. Section(s) 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. *fn1 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. Section(s) 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. *fn2

II. DUTIES UNDER THE LONGSHORE ACT

The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section(s) 905(b), establishes a comprehensive workers' compensation program for longshoremen and their families. *fn3 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. *fn4 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 ...


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