1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-1996

Serbin v. Bora Corp Ltd

Precedential or Non-Precedential:

Docket 95-1806

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Serbin v. Bora Corp Ltd" (1996). 1996 Decisions. Paper 72.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/72
 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 factfinder. 

 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.