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. e du/thir dc ir c uit_1996/72UNITED 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 C ourt For the Eastern District of Pennsylvani a (D.C. Civ. No. 94-cv-03030)

_____________________________________
Argued: April 25, 1996

Before: BECKER, NYGAARD, and LEWIS, Circuit J udges.

(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 stevedori ng accident. The plaintiff is John Serbin, who, as the sun was rising on December 28, 1992, st ruggled 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 fee t below, breaking his knee in the fall. Serbin sued in the District Court for the Eastern D istrict 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 attributab le to the defendant ship. The district court granted summary judgment for the ship. Because the re is a genuine issue of material fact as to whether the ship breached the active operations dut y, we reverse and
remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY Serbin was a longshoreman employed by Inde pendent Pier Company, a stevedore operating in the Port of Philadelphia. Beginning at about midnight on December 28, 1992, Serbin's longshore gang began un loading fruit from the M/V Atlantic Universal, a vessel owned by defendant Bora Corp. L TD (the "ship"). The ship's cargo hold, where the fruit was located, is divided into hatche s and decks. Each hatch, like a silo, runs vertically through the ship; each hatch is also spl it horizontally into five decks about seven feet high. Cargo, in this case fruit, is bundled into u nits approximately seven feet high so that each unit can fit into a deck. Separating the deck s are movable hatch covers, like double doors, that form the floor and ceiling of the decks

. The ship's crew opens and closes these hat ch 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 b lock and pulley system to fold open thenext hatch cover, exposing the unit of cargo in the deck below. The

snatch blocks, the moveable pulley part of the system, can pivot up (v ertical position) and down (horizontal position) around hinges that attach them to the sid es 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 returne d to the up (vertical) position in order to allow the removal of the cargo below. The crew the n ties the blocks to hold them in the up position. Each block weighs approximately one-hund red 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 t hat 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, b ut that some units remained in the "wings." He also noticed that one of the snatch bl ocks 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 norm ally stand in the wing. If anything was to fall he had no place to run." App. 39A. Theref ore, he decided to move
the block back to the up position.
Serbin decided that he should move the blo ck himself instead of waiting for the crew to do it, he testified, for two reasons. Firs t, "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 c ome down and move it
and that wouldhave 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 somet imes 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 fo und that he could not do so by himself. He asked another longshoreman, John McGon igle, who was working in the hold below, to help him raise it. McGonigle, incidental ly, 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 f racture — that has permanently disabled him from working as a longshoreman. In addition to his and McGonigle's testimo ny, Serbin offered the affidavits of two maritime experts: George Mara, a naval archite ct and marine surveyor;
and James Muldowney, an experienced stevedore ship boss. The se 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 af ter the fruit was loaded in Chile. It was also the opinion of these experts that the crew sho uld 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 allege d negligence on the part of the ship's crew in failing to discover and correct the stuck b lock. Defendant, the ship owner, moved for summary judgment on the ground that Serbin could no t establish a breach of any duty. The district court granted the motion. Se rbin v. Bora Corp., No. 94-3030, slip op. at 1 (E.D. Pa. Aug. 17, 1995). It first reason ed that an issue of material fact precluded deciding whether the "active operations" or the "tu rnover" duty of the Longshore Actgoverned in this case. Id. at 9. Proceeding on th e 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) tha t the condition of the
block was not "obvious"; and (3) that the ship failed to take rea sonable precautions because "[t]he vessel had established a mechanism for addressing problems wit h the blocks" and "[Serbin] attempted to fix the problem himself before the crew had a chanc e to remedy the problem." Id. at 9-12. The district court concluded: Plaintiff has not presented any evidence t o establish that the obstructed condition of the block presente d a hazard that either
was known or should have been known to the crew. As a result, plaintiff cannot establish a breach of eit her 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' Compensa tion Act, 33 U.S.C. § 905(b), establishes a comprehensive workers' compensation p rogram for longshoremen and their families. Section 5(b), the provision of the Act r elevant for our purposes, provides longshoremen a cause of action for injuries resulti ng 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. In stead, 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 fram ework 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 ordina ry care under the circumstances to have theship and its equipment in such condition that an ex pert 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 cas es, 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 betwe en 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 conditi ons 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. 19 92). For areas and instrumentalities remaining under the ship's control, the active oper ations 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. 1 994). Finally, the intervention duty requires the ship to take affirmative steps to rect ify hazardous conditions even though it did not create the danger and even though the danger di d not exist at the point of "turnover," at least when the ship has actual knowledge and the co ndition 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 c ase 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 dut y. 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 tha t the area in which the injury occurred, or the instrumentality which caused the injury, was un der the substantial
control of the vessel.See Davis, 16 F.3d at 540. Serbin introduced evide nce 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" in quiry, 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 shi p 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 co uld prevail on any theory will be enough to overcome the summary judgment against him. Ther efore, 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 acti ve 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 exerci se due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, o r from equipment, under the active control of the vessel during the stevedoring operat ion." 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 e stablish a prima facie
case of breach of the operations duty, a plaintiff must show: (1) that the vessel appreciated, should ha ve appreciated, or with the exercise of reasonable care would have appreciated, the condition; (2) that the vessel knew, or sh ould have known, that the condition posed an unreasonable risk o f harm to a longshore worker; (3) that a longshore worker forese eably might fail to (i) either discover the condition or apprehend the gravity and probability of the harm, or (ii) protect h imself 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. KnowledgeThe first factor Serbin must establish, an d thus that we must

evaluate, is whether "the vessel appreciated, should have apprec iated, 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 t he "condition" at issue

was that the block was obstructed in such a ma nner that it could not be rotated. Accepting this characterizati on of the condition, I conclude that the plaintiff has presented sufficient evidence
from which a jury could conclude that the shipo wner — by way of the
vessel's crew — knew or should have known that the block was stuck. As discussed above, there is evide nce 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 d uties should have discovered that the block was stuck. In a ddition, in the hatch where the accident allegedly occurred, thr ee of the four blocks apparently had been turned up; a jury migh t infer from this fact that the crew had attempted to move the fo urth block but found that it was stuck. It is therefore possib le to conclude that the crew had actual knowledge of the stuck con dition 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 e xperts who opined that the ship's crew should have discovered the stuck condition of the b lock both when it
closed the hatches in Chile and when it opened them in Philadelphia. The refore, 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 wheth er Serbin presented
evidence that could establish "that the vessel knew, or should ha ve 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 presente d, . . . 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 ev idence that suggests that a stuck block generally creates a haz ard and that this
hazard
should have been known to the crew. The o nly evidence I can find in the record that an obstructed bloc k is hazardous is the
factthat in this case the plaintiff was injure d attempting to move

it. In order to establish that the condition w as 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 conj unction with the fact much of the cargo on the deck had been rem oved, creating a hole into which a longshore worker could fall. In order for the crew to appreciate that the obstructed block wo uld present this risk
of harm, they would have had to anticipate th at a longshore worker would attempt to move the block after remo ving much of the cargo. No evidence in the record would su pport imputing this knowledge to the crew. Serbin, slip op. at 10-11. We disagree with this a nalysis 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, th e district court's discussion seems to suggest that a plaintiff must introduce specific evidence b eyond 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 ins tance, a plaintiff could not rely on the mere fact that he fell on a staircase to prevail in a neglige nce suit against the owner. But, if the plaintiff can show that the staircase was in disrepair, the j ury 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 abou t stuck blocks generally — but instead could rely on his evidence about this particular stuck bl ock — if a fact-finder
could draw the reasonable inference that the stuck block was a gen eral hazard. This brings us to our second point of disa greement with the district court's analysis: whether a reasonable fact-finder could d raw the inference that the hazard posed an unreasonable risk of harm. Because Serbin must sho w that the block posed a general hazard, he is entitled to the inferences flowing from the m any (i.e., general) ways a stuck block could injure someone. See Kleinknecht v. Gettysburg Coll ege, 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 mean s the likelihood of the
occurrence of ageneral type of risk rather than the likelihood of the occurrence of the

precise chain of events leading to the injury."); Restatement (Second) of T orts § 435(1) ("[T]hat the actor neither foresaw nor should have foreseen the . . . manner i n 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 removi ng much of the cargo."
A stuck block could conceivably have injured someone in any numbe r of ways. For instance, to name just a
few of the scenarios that could have occurred in Se rbin's situation alone,
the block could have (1) suddenly dislodged and sent him sprawling to th e ground, causing serious injury even if the ground was not seven feet below; (2) snapped back a nd 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 con clude that the crew should have recognized the general danger the stuck block posed. 3. Foreseeable failure of longshoreman to protect a gainst harm The third question is whether Serbin intro duced evidence that could support a fact finding that "a longshore worker foreseeably m ight fail to (i) either discover the condition or apprehend the gravity and probability of the har m, or (ii) protect himself or herself from the danger." Davis, 16 F.3d at 541. The district cour t 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 hims elf or herself from the danger. Once having attempted without suc cess to move the block, a longshore worker could be expecte d to realize that the block was obstructed. In fact, the plaint iff acknowledges that prior to the accident, he discovered that the block was stuck.

He attempted to move it by himself but, findi ng that he could not,
he called on his co-worker McGonigle for assi stance. The plaintiff has thus presented no evidence that it was foreseeable that a longshore worker would fail to discover th e obstructed condition of the block. Similarly, the plaintiff ha s not produced evidence that it was foreseeable that a longshore w orker would fail to appreciate the gravity of the block's stuc k condition. As discussed above, the evidence that has bee n presented suggeststhat 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 wh ile standing atop a seven-foot stack of fruit boxes can be exp ected 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 "obviousn ess." 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 re solution by the court on summary judgment. See, e.g., id. at 540; Kirsch, 971 F.2d at 1030. W e think that reasonable minds could differ on whether an "obstructed" block presented an obvio us danger under these circumstances, and that it is for the fact-finder, therefore, to decid e 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 bl ock was "obstructed." Serbin testified: Q. Did you start to move the block? Bec ause you mentioned that sometimesyou can move the block with just one perso n.

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 m ove the block, testified: Q. [N]ormally — I'm not talking about th e day of Mr. Serbin's
accident — when you lift a block like this, is i t something that one person can do?

A. No, usually two men.

Q. When you usually do it, do you use an y type of equipment or did you just do it by ha nd?. . .

A. Yes, we did that a few times, differe nt jobs.

Q. Normally, would you use a four-by-fou r 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 c ould not move the block by himself. He did not testify that it was "obstructed" — as op posed 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 mo ve a block himself. The evidence does not, then, establish that Serbin knew that the bloc k was "obstructed," i.e., stuck by metal stoppers wedged into the cargo below so that it wou ld 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 a bnormal to use levers to augment the strength of the two men. McGonigle's further testi mony that other methods were available "[i]f there was no fruit or anything in the way" co uld 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 Serb in, 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 reaso n to take steps to protect himself against it. A disputed issue of material fact, therefore, precl udes summary judgment on this issue.The third reason we disagree with the dist rict 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 coul d 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 o bvious, known to Davis, and easily avoidable," this Court said, "we still would not af firm its order granting [the defendant] summary judgment because we cannot conclude as a ma tter 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 demonstrat ed that Congress, in enacting the Act, rejected the common law tort doctrines of contribut ory negligence and assumption of risk in favor of the admiralty concept of comparative negli gence. 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 cong ressionally rejected doctrines. Id. Rather, a ship could be at fault for failing to cor rect 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 decisi on of the Supreme Court, Howlett v. Birkdale Shipping Co., 114 S. Ct. 2057 (1994), effe ctively overruled Davis. We disagree. Howlett held that obviousness was a bar to liabilit y 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 ve ssels to exercise scrutiny over a cargo loading operation to discover defects that may beco me hidden when the stow is complete would require vessels to inject themselves into mat ters beyond their ordinary province." Id. at2066. The Court made clear that the scope of the t urnover duty with

respect to the stow is "narrow" because "the cargo stow is separate and di stinct from other aspects of the ship." Id.at 2066-67. In contrast, "[t]he vessel's responsibilities to inspect [the ship itself, and i ts gear, equipment and tools] are commensurate with its acce ss and control." Id. at 2066. "Because the vessel does not exercise the same degree of ope rational control over,
and does not have the same access to, the cargo stow," the Court conclude d, "its duties with respect to the stow are limited by comparison." Id. at 2067. Thus, the Court held that, if the hazard i n that case — a sheet of clear plastic in the cargo stow — was obvious to a competent stevedo re, summary judgment
would be appropriate for the ship. Moreover, the seminal ca se 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 hav e 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 i nvolves itself in the cargo operations and negligently injures a longshoreman or if it fails t o exercise due care to avoid exposing longshoremen to harm from hazards they may encounte r . . . ."). 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 appl icable when the vessel does not actively involve itself in the cargo operations," we explain ed, "in which event the vessel may rely and depend on the experience and expertise of the steve dore." Id. Indeed, in Davis itself we recognized that this Court had already
decided that obviousness was a bar to liability under the turnov er duty: "The focus on obviousness in Kirsch, 971 F.2d at 1031, was linked to the turnove r duty and in Derr v. Kawasaki Kisen K.K., 835 F.2d 490, 496 (3d Cir. 1987), cert. denie d, 486 U.S. 1007 (1988), to the duty towarn; here, we must come to grips with the active o perations duty, a duty

which contrasts materially from the duties Derr and Kirsch consider ed." 16 F.3d at 540 (citations omitted). We explained the different nature of the active ope rations duty: When, however, the hazard occurs due to th e 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 respon sibility between the vessel and stevedore by manipulating the v essel's standard of care to account for both entities disappea rs, because the vessel is in such events responsible for the injury, and liability, if any, should attach to it according to its compa rative fault. . . . In short, unlike with the turnover duty, whic h generally applies to hidden defects in cargo areas, the vessel cannot rely on the stevedore's expertise to protect its worke rs 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 whethe r the ship "failed to
take reasonable precautionary or remedial steps to prevent or elimi nate 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 esta blished a mechanism for addressing problems with the blocks: a s the plaintiff acknowledges, it had made it known that th e blocks were the province of the crew. Indeed, the applica tion of the active operations duty proceeds, as discussed abo ve, on the assumption that the blocks were the responsibility of the crew. McGonigle had already alerted a crew member to the f act that one of the blocks was in the down position. Plaintif f, 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 t his theory must be rejected. Serbin, slip op. at 12. We disagree. Serbin conte sts 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 asserti on that it did. Although the active operationsduty does proceed "on the assumption that the block s were the

responsibility of the crew," Serbin introduced evidence that it was customary fo r longshoremen to
remove hazardous conditions themselves (including those involving bl ocks 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, p erhaps unable to ascertain that the block remained "down" because it was stuck, would attempt to move it. McGonigle's testimony that he notified a m ember of the ship's
crew of the problem is also not dispositive. That another long shoreman notified a
crew member of the block's incorrect position does nothing to establis h that the ship took reasonable steps to rectify it. McGonigle testified that he had no ide a if the crew member
would take care of the block — or indeed whether he even spoke English — a nd the record contains no evidence that the ship took any steps toward taking care of the b lock. And even if the ship had a system in place, and had taken steps to move the block (or wo uld have taken steps, given more time), these hypothetical factors cannot be enough to esta blish "reasonably precautionary or remedial measures" as long as the ship could reasonably fore see, as we have concluded that it could, that, despite such a system, a longshoreman might s eek to correct the problem himself. Under these circumstances, the ship was left with two opt ions: (1) inspecting and remedying dangerous conditions before the stevedore began car go operations, or (2) making clear that longshoremen were not themselves to correct problem s on the ship. This record permits a reasonable inference that the ship did not do eithe r. The ship also argues that it could reasona bly rely on Serbin to stop working pending the moving of the block because OSHA regula tions require him to do
so. These regulations, the ship contends, specifically state that when there is a pr oblem 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 th at "[p]ending replacement or repairs by the vessel, work shall not be performed in the section containing the unsafe cover s 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 conditi on. Because the regulations require reporting of "hatch cover" problems that would "jeopardize th e safety" of longshoremen — rather than all "hatch cover" problems — Serbin would need to h ave knowledge of the block's dangerous condition in order to comply. Serbin, of course, d enies 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 ar gument is unavailing.
A fact-finder could reasonably conclude that the ship failed to take re asonable 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 und er 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 opinio n.