Appendix — Gravatt v. Simpson & Brown, Inc.
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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
DATED AND DECIDED SEPTEMBER 18, 2000
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1999
(Argued: April 27, 2000 Decided: SEP 18 2000)
Docket No. 99-7898
STEVEN GRAVATT and DELORES GRAVATT,
Plaintiffs-Appellees,
are
THE CITY OF NEW YORK,
Defendant-Cross-Claimant,
SIMPSON & BROWN, INC.,
Defendant-Cross-Defendant-Appellant,
N. MASSAND, P.E., L.S., P.C.,
a/k/a/ Nanik Massand, P.C.,
Defendant-Cross-Claimant-Cross-Defendant,
BARGE “ABC” and BARGE “DEF”, their Engines,
Boilers, Tackles, etc. in rem,
Defendant-Cross-Defendant.
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Appendix A
Before: JACOBS, LEVAL and SACK, Circuit Judges.
* * *
LEVAL, Circuit Judge:
Defendant Simpson & Brown, Inc. (“S&B”) appeals
from the final judgment of the United States District Court
for the Southern District of New York (Robert W. Sweet.
Judge) entered against it on July 6, 1999. Plaintiff Steven
Gravatt (“Gravatt”) was employed as a journeyman dock
builder by defendant S&B — the sole appellant — a
construction contractor retained by the City of New York to
repair one of its bridges. Gravatt was injured while working
on a barge chartered by S&B at this mid-river construction
site. Gravatt’s employment made him a “harbor-worker” —
a person covered by the terms of the Longshore and Harbor
Workers’ Compensation Act of 1972 (“LHWCA”), as
amended, 33 U.S.C. §§ 901 et seg. Under the definitions of
the LHWCA, S&B acted in two capacities — first, as
Gravatt’s employer, see 33 U.S.C. § 902(4), and second, as
the owner of the vessel on which Gravatt was injured,
see id. § 902(21).
We must decide whether S&B’s conduct renders it liable
to Gravatt in tort given that it acted in this dual capacity of
employer and vessel owner. The LHWCA provides that as
Gravatt’s employer, S&B was required to pay Gravatt
statutory compensation for injuries suffered in the course of
his employment, regardless of fault, see 33 U.S.C. § 904,
but that an employer’s no-fault liability for compensation to
its employee under section 904 is “exclusive and in place of
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Appendix A
all other liability.” Jd. § 905(a). Therefore, Gravatt has no
tort remedy against S&B in its capacity as his employer. On
the other hand, the injured employee’s receipt of
compensation from his employer does not bar him from suing
responsible third parties. See 33 U.S.C. § 933(a). In this
regard, the LHWCA provides that, with certain exceptions,
an injured maritime worker may bring an action for
negligence against a vessel as a third party. See 33 U.S.C.
§ 905(b). The statute implies, and has been interpreted to
provide, that an employer that is also a vessel owner can be
liable to its employees as if it were a third party for negligence
in its vessel capacity. We must decide how to reconcile
S&B’s section 905(a) immunity as employer to suit in
negligence, with its potential liability in negligence as a
vessel under section 905(b).
The district court found Gravatt liable under alternate
theories. First, relying on its reading of Fanetti v. Hellenic
Lines Ltd., 678 F.2d 424 (2d Cir. 1982), it concluded that
S&B was liable in negligence to Gravatt regardless “whether
the acts of negligence are attributable to the owner-employer
in its capacity as [vessel] owner or as employer.” Gravatt v.
City of New York, 53 F. Supp. 2d 388, 424 (S.D.N.Y. 1999).
Second, the district court found that S&B’s negligence was
in 1is capacity as vessel owner. See id. at 421-24. In our view,
a dual-capacity employer-vessel is liable to its covered
employees under section 905(b) only to the extent that it
breached its duties of care in its capacity as vessel, and is
not liable for negligence committed in its capacity as
employer. Accord Morehead v. Atkinson-Kiewit, J/V, 97 F.3d
603 (1st Cir. 1996) (en banc); Levene v. Pintail Enters., 943
F.2d 528 (Sth Cir. 1991); Castorina v. Lykes Bros. S.S. Co.,
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Appendix A
758 F.2d 1025 (Sth Cir. 1985); see also Smith v. Eastern
Seaboard Pile Driving, Inc., 604 F.2d 789, 795 (2d Cir. 1979)
(holding that the “key issue” in a dual-capacity case was
whether negligent employees acted “in their capacity as
agents of the vessel on the one hand or as employees
performing [LHWCA-covered harbor work] on the other”).
Because we find that S&B was not negligent in its vessel
capacity, we reverse the judgment against S&B.'
BACKGROUND
A. Facts
The facts of the case are set out in detail in the several
opinions below, in particular the court’s opinion on the
parties’ summary judgment motions, see Gravatt v. City of
New York, No. 97 CIV 0354(RWS), 1998 WL 171491
(S.D.N.Y. Apr. 10, 1998), and in two post-trial opinions,
see Gravatt v. City of New York, 1999 WL 111922 (S.D.N.Y.
Mar. 3, 1999) (“Original Opinion”); Gravatt v. City of New
York, 53 F. Supp. 2d 388 (S.D.N.Y. 1999) (“Revised
Opinion”). The following facts relevant to this appeal are as
found by the district court.
1. Because we conclude that S&B was not liable in negligence
under section 905(b) and reverse the judgment, we need not reach
the other arguments S&B raised on appeal regarding: (1) S&B’s
entitlement to a judgment credit to reflect the payments the Gravatts
received in their post-judgment settlement with codefendants the
City of New York and N. Massand, P.C.; (2) whether punitive
damages may be awarded in suits brought under section 905(b);
and (3) whether Gravatt was contributorily negligent.
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Appendix A
Gravatt and his wife Delores sued the City of New York
(the “City”), N. Massand, P.C. (“Massand”), and S&B for
injuries that Gravatt sustained in an accident on January 31,
1996, while he was working on a construction project
repairing the 145th Street Bridge across the Harlem River.
The City owned the bridge. Massand — a New York
professional corporation — was the engineering firm retained
by the City to design the bridge repair project, supervise the
construction, and monitor that the repair work was carried
out safely. S&B was the construction contractor hired to
perform the repair work under the supervision and control
of Massand and the City. Gravatt was employed by S&B.
The repairs to the 145th Street Bridge involved the
demolition and replacement of the bridge’s “fender systems”
— the wooden, pier-like structures that surround a bridge’s
mid-river stanchion in order to protect it in case of collision
with shipping. The repairs required the removal of the old
fender system, the excavation of the river-bed, and the
driving of new piles, on which the new fender system could
be constructed. This mid-river construction work required
the use of several barges, which S&B had chartered to
perform the work. A crane barge carried the heavy equipment
used to extract the old piles, drive new piles, and excavate
the river-bed. Materials barges were used to transport new
materials, consisting primarily of piles, braces and whalers
to the site from Newark, New Jersey, and to transport debris
— primarily old timbers — to Newark for disposal. The crane
was used to unload new materials from the meterials barges
and to load them with debris. When a barge loaded with new
materials arrived at the site, it would be lashed to the crane
barge. As work progressed, the new materials would be
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Appendix A
offloaded from the barge and debris loaded in their place.
When this was accomplished, the materials barge would be
towed back to Newark to dispose of the debris and repeat
the cycle.
_ Gravatt’s duties as a dock builder required him to spend
nearly all his time working directly on the fender system of
the bridge. He spent less than one percent of his time on the
barges.” His normal duties did not include handling materials
on the barges. The discharging of the new materials and the
stowing of the debris on the barges was usually performed
by a “deck man.”
On January 31, 1996, however, Gravatt, together with a
fellow dock builder, Liming, was instructed by the site
foreman Holzheuer to go onto a materials barge to help move
old piles so as to clear access to new materials. The debris
had been loaded on top of new materials, obstructing access
to them. The loading of debris on top of new materials
violated S&B’s safety policies as set out in its safety
handbook. This storage decision had been Holzheuer’s. It is
not disputed furthermore that Holzheuer instructed Gravatt
and Liming to move the old piles in an unsafe and negligent
manner. Standard industry practice requires the use of a
“choker” to move piles. A “choker” is a chain, which is
wrapped around the pile, the noose tightening as the crane
2. For this reason the district court correctly dismissed
Gravatt’s claims under the Jones Act, concluding that Gravatt had
an insufficiently substantial connection to a vessel in navigation to
qualify as a seaman under the standard set out in Chandris, Inc. v.
Latsis, 515 U.S. 347 (1995). See Gravatt v. City of New York, 1998
WL 341941, at *5-*6 (S.D.N.Y. June 26, 1998).
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Appendix A
lifts the chain. “Timber tongs” are used to raise the pile two
or three feet onto a “sleeper,” which provides enough
clearance from the deck to allow the choker to be attached
around the pile. Holzheuer, however, instructed Gravatt and
Liming to use the timber tongs, rather than the choker, to
move piles. There was evidence that S&B routinely engaged
in this misuse of timber tongs, in violation of industry-wide
safety standards.’
Gravatt and Liming stood on the material barge. ‘fue
crane operator and deck man were on the crane barge. The
crane barge was secured to the fender system; the material
barge was lashed to the crane barge. The crane operator could
not see Gravatt who stood on the debris material some 60 to
70 feet away from him. Gravatt climbed over the debris to
attach the timber tongs to a twelve-foot piling. Liming gave
a signal, which the crane operator interpreted as a signal to
hoist. Liming did not use the signals specified in S&B’s
safety handbook.
At this point Gravatt had climbed back onto the new
lumber, some eight feet above the deck of the barge, and
was facing away from the raised piling. As the crane raised
the pile some 10 feet into the air, the lower end of the pile
snagged on debris on the barge. The pile slipped from the
teeth of the timber tongs, and fell, hitting another pile, which
3. The district court concluded that this “use of timber tongs
... violated an industry-wide safety standard. It also violated
§ 1981.81 of OSHA, 29 CFR § 1981.81, as well as [New York State]
Industrial Code §§ 23-1.5(c)(2), 23-2.1, 23-3.3(k), 23-6.1(d),
23-6.1(€), 23-8.1(e)(3), 23- 8.1(£)(1)(iv), 23-8.1(£)(2)(ii), and
23-8.2(c)(3).” Gravatt, 53 F. Supp. 2d at 417.
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Appendix A
bounced up and struck Gravatt on the back of his legs. Gravatt
was knocked some twenty-five feet into the near-freezing
water of the Harlem River.
Gravatt was seriously injured and has undergone several
operations on his legs. He has received the statutory
compensation payments from S&B due under the LHWCA.
B. Relevant Prior Proceedings
A bench trial was held from November 30 through
December 4, 1998. On March 3, 1999, the district court
issued an opinion ruling in favor of the Gravatts on their
state labor law claims against the City and Massand, pursuant
to N.Y. Labor Law §§ 200(1), 240, 241(6), and on their
federal claim against S&B, pursuant to section 5(b) of the
LHWCA, 33 U.S.C. § 905(b). See Gravatt, 1999 WL 111922,
at *21-*31. Gravatt was held to have been one-third
contributorily negligent. See id. at *19, *32. The court
awarded punitive damages against Massand, but held that
punitive damages could not be awarded against S&B as a
matter of law under the LHWCA. See id. at *33.
The Gravatts filed a motion to amend, pursuant to Fed.
R. Civ. P. 52(b). On May 24, 1999, the district court granted
the motion and filed a revised opinion. See Gravatt,
53 F. Supp. 2d 388. The revised opinion reversed the court’s
rulings that Gravatt was contributorily negligent, see id. at
392-94, and that punitive damages were not available in a
tort action under section 905(b), see id. at 394-397.
Judgment was entered on July 6, 1999, in favor of
Gravatt and his wife against S&B in the total amount of
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Appendix A
$2,254,857.48, plus post-judgment interest and costs. As
against Massand and the City a similar judgment was not
reduced to a single amount, but was structured pursuant to
New York’s structured judgment statute, see N.Y. CPLR
50-B, which requires that part of the judgment be paid out
over time. The three defendants were held jointly and
severally liable for all amounts due under the judgment, with
the exception of the punitive damages entered separately
against Massand and S&B, for which they were held
severally liable.
After the judgment was entered, on July 16, 1999, the
City and Massand settled with the Gravatts, paying
$1,350,000 in exchange for general releases from the
Gravatts and a partial satisfaction of judgment. S&B then
moved pursuant to Fed. R. Civ. Proc. 59(e) to amend the -
July 6 judgment entered against it by reducing the judgment
by the $1,350,000 received by the Gravatts in their settlement
with the City and Massand. On November 5, 1999, the district
court denied the motion. See Gravatt v. City of New York,
73 F. Supp. 2d 438, 440-41 (S.D.N.Y. 1999).
S&B appeals from the judgment and from the order
denying its Rule 59(e) motion to amend the judgment. We
reach only the issue whether S&B was liable under section
905(b).
nf DISCUSSION
S&B contends on appeal that the district court
improperly held it liable for vessel negligence under LHWCA
§ 5(b), 33 U.S.C. § 905(b). It does not dispute that it was
negligent in its capacity as employer and iiiat Gravatt was
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Appendix A
injured by reason of that negligence,* but denies it was
negligent in its capacity as vessel owner. The district court
held S&B liable under alternate theories. First, citing Fanetti
v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir. 1982), the court
ruled that any negligence on the part of a dual-capacity
employer-vessel owner is actionable under section 905(b),
regardless whether the negligence was committed in its capacity
as vessel owner or in its capacity as employer. See Gravatt, 53
F. Supp. 2d at 424. Second, citing Morehead v. Atkinson-
Kiewit, J/V, 97 F.3d 603 (1st Cir. 1996), and Smith v. Eastern
Seaboard Pile Driving, Inc., 604 F.2d 789 (2d Cir. 1979),
the district court found that, in any case, S&B was negligent
in its vessel capacity. See Gravatt, 53 F. Supp. 2d at 421-24.
S&B argues that its negligence was only in its role as
Gravatt’s employer and not in its role as vessel owner, and
that, as Gravatt’s employer, its liability was limited to the
statutory workers’ compensation payments required by the
LHWCA. See 33 U.S.C. §§ 904, 905(a). We agree that S&B
can be held liable under 905(b) only for negligence in its
role as vessel and that no such negligence was shown. We
therefore reverse the judgment.
1. Vessel liability under section 905(b) of the LHWCA.
LHWCA is a comprehensive workers’ compensation
system, under which employers are required to compensate
covered employees injured in the course of their employment,
regardless of fault. In relevant part, section 4 of the LHWCA
provides: ;
4. It has been undisputed throughout that S&B’s conduct was
negligent. See, e.g., Gravatt, 1998 WL 171491, at *10 n.2 (“The
[hoisting] procedure adopted was unsafe and recognized to be so.”).
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(a) Every employer shall be liable for and shall
secure the payment to his employees of the
compensation payable under sections 907, 908,
and 909 of this title. . . .5
(b) Compensation shall be payable irrespective
of fault as a cause for the injury.
33 U.S.C. § 904. It is not disputed that Gravatt’s employment
was as a “harbor-worker” covered by the LHWCA; see 33
U.S.C. § 902(3),° and that S&B was his “employer,” see id.
§ 902(4).’
5. In turn, section 907 sets out in detail the employer’s
obligations to provide certain medical services and supplies “for
such period as the nature of the injury or the process of recovery
may require.” 33 U.S.C. § 907(a). Section 908 sets out a detailed
schedule of payments that the employer must make im the case of
permanent total, temporary total or permanent partial disability.
See id. § 908. Section 909 sets out a schedule of death benefits and
specifies the beneficiaries to whom they are payable in the event
that an employee’s injury is fatal. See id. § 909.
6. “The term ‘employee’ means any person engaged in
maritime employment, including any longshoreman or other person
engaged in longshoring operations, and any harbor-worker including
a ship repairman, shipbuilder, and ship-breaker ... .” 33 U.S.C.
§ 902(3). The term does not include certain employees “subject to
coverage under a State workers’ compensation law,” id. § 902(3),
including “master[s] or member[s] of a crew of any vessel.” Jd.
§ 902(3)(G). ;
7. “The term ‘employer’ means an employer any of whose
employees are employed in maritime employment, in whole or in
(Cont'd)
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Like most state workers’ compensation schemes, the
LHWCA provides that the statutory, no-fault compensation
payments are the employer’s exclusive liability to its employees
when they are injured in the course of their employment. “The
liability of an employer prescribed in section 904 of this title
shall be exclusive and in place of all other liability of such
employer to the employee ....” 33 U.S.C. § 905(a). The
employee is, therefore, barred from suing his employer in tort.
See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 394
n.11 (1970). On the other hand, as with most state workers’
compensation schemes, the employee may sue negligent third
parties in tort, notwithstanding his entitlement to no-fault
compensation provided by the employer. See 33 U.S.C. § 933(a)
(“If. . . the person entitled to . . . compensation determines that
some person other than the employer . . . is liable in damages,
he need not elect whether to receive such compensation or to
- recover damages against such third person.”). In particular,
under section 905(b), in accordance with section 933, an
employee may bring an action in negligence against the “vessel
as a third party.” 33 U.S.C. § 905(b). It is undisputed that S&B,
as owner or charterer of the crane barge and charterer of the
materials barges, falls within the statutory definition of “vessel.” ~
See 33 U.S.C. § 902(21).°
(Cont’d)
part, upon the navigable waters of the United States (including any
adjoining pier, wharf, dry dock, terminal, building way, marine railway,
or other adjoining area customarily used by an employer in loading,
unloading, repairing, or building a vessel).” 33 U.S.C. § 902(4).
8. “[T]he term ‘vessel’ means any vessel upon which or in
connection with which any person entitled to benefits under this
(Cont’d)
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The question presented by this case is whether, and under
what circumstances, S&B can be liable to its employee for
its negligence given its dual-capacity as employer (enjoying
immunity from tort liability under section 905(a)) and vessel
owner (against which liability for negligence may lie under
section 905(b)).
This question requires an understanding of the significant
amendments to the LHWCA enacted by the Longshoremen’s
and Harbor Workers’ Compensation Act Amendments of
1972, Pub. L. No. 92-576, 86 Stat. 1251 (hereafter “1972
Amendments”). Prior to 1972, the exclusivity of the employer’s
liability under section 905 had been severely undermined as a
result of two Supreme Court decisions. See generally H.R. Rep.
No. 92-1441 (1972), reprinted in 1972 U.S.C.C.A.N. 4698.
First, in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95-96
(1946), the Supreme Court held that longshoremen and other
employees covered under the LHWCA, who were injured
while working on a vessel, were entitled to maintain an action
against the vessel, as a third party, based on the theory of
unseaworthiness — a doctrine of strict liability. Under
Sieracki, vessels were liable as third parties to longshoremen
for injuries resulting from the vessels’ “unseaworthy”
condition. An action for unseaworthiness had previously been
available only to seamen.® Because the responsibility of a
(Cont'd)
chapter suffers injury or death arising out of or in the course of his
employment, and said vessel’s owner, owner pro_hac vice, agent,
operator, charter or bare boat charterer, master, officer, or crew
member.” 33 U.S.C. § 902(21).
9. Longshoremen thus came to be described as “Sieracki-
seamen.”
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vessel to be in seaworthy condition calls for strict liability,
regardless of fault, the vessel could be liable to
longshoremen, notwithstanding that the unseaworthy
condition may have been caused by the stevedore and not
by the vessel’s crew. See H.R. Rep. No. 92-1441, 1972
U.S.C.C.A.N. at 4702; see also Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156, 164-65 (1981).
Second, in Ryan Stevedoring Co. v. Pan-Atlantic S.S.
Corp., 350 U.S. 124, 132-35 (1956), the Supreme Court held
that the vessel could seek indemnity from the stevedore-
employer for the vessel’s liability to an injured
longshoreman-employee for unseaworthiness, based on the
theory that the stevedore had breached an express or implied
warranty of workmanlike performance to the vessel. In this
manner, the stevedore-employer became indirectly liable in
maritime tort to its injured longshoreman-employee under
the no-fault doctrine of unseaworthiness, notwithstanding
that the LHWCA provided that the stevedore-employer’s
exclusive liability to its injured employees was for the
statutory compensation payments. See 33 U.S.C. §§ 904,
905(a). In effect, the injured employee could get tort damages
from his employer despite the statutory proscription against
suing his employer directly.'®
10. Lastly, by 1972, the incentive to sue the vessel for
unseaworthiness, and thereby impose this liability indirectly on the
stevedore, was especially great because the maximum compensation
available under the LHWCA had not been increased for 12 years.
As a result many workers received statutory disability benefits under
the LHWCA “as low as 30% of their average weekly wage.”
H.R. Rep. 92-1441, 1972 U.S.C.C.A.N. at 4700.
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Appendix A
The 1972 Amendments made substantial changes to this
framework. The statutory compensation benefits provided
under the LHWCA were substantially increased.
See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,
261-62 (1977). At the same time, section 5(b) of the
LHWCA, 33 U.S.C. § 905(b), was amended to overrule
Sieracki and Ryan. See Edmonds v. Compagnie Generale
Transatlantique, 443 U.S. 256, 262 (1979). The
longshoreman-employee’s right to recover for unseaworthiness
was abolished; his right to recover from the vessel was
preserved but was limited to an action for negligence; and
the vessel owner’s right to indemnity from the stevedore was
abolished. See Scindia, 451 U.S. at 165. Under these
amendments, section 905(b) provided in relevant part:
In the event of injury to a person covered under
this Act caused by the negligence of a vessel, then
such person, or anyone otherwise entitled to
recover damages by reason thereof, may bring an
action against such vessel as a third party . . . and
the employer shall not be liable to the vessel for
such damages directly or indirectly and any
agreements or warranties to the contrary shall be
void. If such person was employed by the vessel
to provide stevedoring services, no such action
shall be permitted if the injury was caused by the
negligence of persons engaged in providing
stevedoring services to the vessel. If such person
was employed by the vessel to provide ship
building or repair services, no such action shall
be permitted if the injury was caused by the
negligence of persons engaged in providing
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Appendix A
shipbuilding or repair services to the vessel. The _.
liability of the vessel under this subsection shall
not be based upon the warranty of seaworthiness
or a breach thereof at the time the injury occurred.
_ The remedy provided in this subsection shall be
exclusive of all other remedies against the vessel
except remedies available under this Act.
33 U.S.C. § 905(b) (as in effect in 1972).
In two respects, these 1972 Amendments expressly
addressed the dual-capacity problem that arises where the
covered maritime worker is employed by the owner of the
vessel on which (or by which) he is injured, rather than
employed by a contractor that is independent of the vessel.
See H.R. Rep. No. 92-1441, 1972 U.S.C.C.A.N. at 4705.
The second sentence of § 905(b) relieves a dual-capacity
vessel of negligence liability to a worker “employed by the
vessel to provide stevedoring services . . . if the injury was
caused by the negligence of persons engaged in providing
stevedoring services to the vessel.” Similarly, the third
sentence of section 905(b), as in effect in 1972, provided
that a person employed directly by the vessel to provide
shipbuilding or repair services had no cause of action against
the vessel for injuries caused by the negligence of others
providing the same services. See id. In 1984, Congress further
amended section 905(b) (the “1984 Amendments”) to
broaden the vessel’s immunity from liability for negligence
in the case of certain classes of employees. <s the result of
this amendment, the third sentence of Section 905(b) now
provides that:
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If such person was employed-to provide
shipbuilding, repairing, or breaking services and
such person’s employer was the owner, owner pro
hac vice, agent, operator, or charterer of the
vessel, no such action shall be permitted, in whole
or in part or directly or indirectly, against the
injured person’s employer (in any capacity,
including as the vessel’s owner, ownex pro hac
vice, agent, operator, or charterer) or against the
employees of the employer.
Longshore and Harbor Workers’ Compensation Act
Amendments of 1984, Pub. L. No. 98-426, § 5(a)(1), 98 Stat.
1639, 1641. Thus, under the 1984 Amendments, maritime
workers engaged directly by a vessel owner to provide
shipbuilding, repairing or breaking services cannot sue the
dual-capacity employer for injuries caused by the negligence
of the vessel or its employees, no matter what were the work
activities of the negligent employees.
In amending section 905(b) Congress clearly intended
that the “vessel’s liability is to be based on its own
negligence.” See H.R. Rep. No. 92-1441, 1972 U.S.C.C.A.N.
at 4704 (emphasis added); see also id. (“The vessel will not
be chargeable with the negligence of the stevedore or
employees of the stevedore.”). However, Congress “did not
specify the acts or omissions of the vessel that would
constitute negligence.” Scindia, 451 U.S. at 165. The House
Committee Report on the 1972 Amendments conceded that
the contours of the action for vessel negligence under 905(b)
were to be worked out by federal courts “through the
application of accepted principles of tort law and the ordinary
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Appendix A
process of litigation — just as they are in cases involving
alleged negligence by land-based third parties.” H.R. Rep.
No. 92-1441, 1972 U.S.C.C.A.N. at 4704. At the same time,
through the Committee Report, Congress provided
substantial guidance as to the prirciples that should shape
the evolution of the action. -
First, the House Committee specified that the employee’s
rights and the vessel’s liability under a 905(b) action for
vessel negligence should approximate those of a land-based
employee and a land-based third party.
The Committee intends that on the one hand an
employee injured on board a vessel shall be in no
less favorable position vis a vis his rights against
the vessel as a third party than is an employee
who is injured on land, and on the other hand,
that the vessel shall not be liable as a third party
unless it is proven to have acted or have failed to
act in a negligent manner such as would render a
land-based third party in non-maritime pursuits
liable under similar circumstances.
H.R. Rep. No. 92-1441, 1972 U.S.C.C.A.N. at 4704
(emphasis added).
Second, the 905(b) action was to be developed as a matter
of uniform federal maritime law, not by incorporating the
tort law of the particular state in which the action arose.
See id. at 4705 (“[T]he Committee does not intend that the
[section 905(b) action] shall be applied differently in different
ports depending on the law of the State in which the port
19a
Appendix A
may be located ... [but] that legal questions ... shall be
determined as a matter of Federal law.”). In particular, the
Report specified that
the Committee intends that the admiralty concept
of comparative negligence, rather than the
common law rule as to contributory negligence,
shall apply in cases where the injured employee’s
own negligence may have contributed to causing
the injury. Also, the Committee intends that the
admiralty rule which precludes the defense of
“assumption of risk” in an action by an injured
employee shall also be applicable.
Id. at 4705.
}
}
j
20a
Appendix A
[covered employee’s] action for negligence against the ship
... lest too expansive notions of the ship’s duty vitiate
Congress’ intent to do away with absolute liability for vessels
... and make greatly improved compensation benefits the
primary remedy for longshoremen and harbor workers.”
Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 688, 687 (2d
Cir. 1978) (Friendly, J., dissenting).
Fourth, and important for our case, the Report specifies
as to “dual-capacity” cases,
the rights of an injured longshoreman ... . should
not depend on whether he was employed directly
by the vessel or by an independent contractor.
Accordingly, the bill provides in the case of a
longshoreman who is employed directly by the
vessel there will be no action for damages if the
injury was caused by the negligence of persons
engaged in performing longshoring services. . . .
The Committee's intent is that the same principles
should apply in determining liability of the vessel
which employs its own longshoremen . . . as apply
when an independent contractor employs such
persons.
H.R. Rep. No. 92-1441, 1972 U.S.C.C.A.N. at 4705
(emphases added). As the Supreme Court has concluded,
under the 1972 Amendments, “all longshoremen are to be
treated the same whether their employer is an independent
stevedore or a shipowner-stevedore and ... all stevedores
are to be treated the same whether they are independent or
an arm of the shipowner itself.” Edmonds v. Compagnie
2la
Appendix A
Generale T; ransatlantique, 443 U.S. 256, 266 (1979). While
the Edmonds opinion focused on longshoremen, it is clear
that Congress intended a general principle that the rights and
liabilities of employee and employer should not turn on
whether the employer acted in a dual-capacity as vessel
owner. See, e.g., Smith v. Eastern Seaboard Pile Driving,
Inc., 604 F.2d 789, 795 (2d Cir. 1979) (observing in context
of non-stevedoring case that “the legislative history of the
1972 amendments makes it clear that the rights of an
employee are not dependent on who the employer is”).
It is not disputed that an employee of a dual-capacity
employer-owner retains his right to sue the vessel for
negligence under section 905(b). Even before the 1984
Amendments, the Supreme Court held unanimously in Jones
& Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983), that
a longshoreman, injured on a vessel during the course of his
employment, could bring a section 905(b) negligence suit
against the vessel, notwithstanding that the owner was also
his employer, from whom he had already received statutory
compensation pursuant to section 904. The Court found that
the language of section 905(b) compelled this result. It
reasoned that if section 905(a) had been intended to bar all
employee suits against dual-capacity employers for third-
party vessel negligence there would have been no need to
insert the language expressly barring such actions where the
injury was caused by the negligence of a feliow worker
“ “engaged in providing stevedoring services to the \ essel.’ ”
Jones & Laughlin, 462 U.S. at 530 (quoting 33 U.S.C.
§ 905(b)). By expressly delineating the circumstances in
which a dual-capacity vessel may not be sued for its negligent
injury to its covered employee, section 905(b) implies that
eta echt Nn —_ ae
22a
Appendix A
the vessel may be sued for negligence by its covered
employees in circumstances falling outside the specified
exceptions. In further support of its holding, the Jones &
Laughlin Court cited the unequivocal language of the 1972
Committee Report, quoted supra at [page 16], indicating
that the rights and liabilities of employee and employer
should not depend on whether the employee was employed
directly by the vessel or by a stevedoring contractor.
See Jones & Laughlin, 462 U.S. at 531-32 (quoting H.R.
Rep. No. 92-1441, 1972 U.S.C.C.A.N. at 4705).
The Supreme Court’s textual argument in Jones &
Laughlin is even more compelling after the 1984
Amendments, which barred employees providing
“shipbuilding, repairing, or breaking services” from bringing
a negligence action against a dual-capacity employer-vessel
owner in any circumstances. 33 U.S.C. § 905(b) (as amended
by Pub. L. No. 98-426, § 5(a)(1), 98 Stat. 1639, 1641). As
we concluded in a case heard after the 1984 Amendments,
“(t]he 1984 change ... shows that Congress knew how to
preclude a class of employees from being able to sue an
employer-vessel if it chose to do so.” Guilles v. Sea-Land
Serv., Inc., 12 F.3d 381, 386 (2d Cir. 1993); see also H.R.
Rep. No 98-570(I), reprinted in 1984 U.S.C.C.A.N. 2734,
2741 (“The Committee intends that this language [in section
905(b)] not be construed to limit an employee’s right to bring
a cause of action, except in the circumstances indicated
within the language.”).
The Jones & Laughlin Court recognized, however, that
section 905(b) “does make it clear that a vessel owner acting
as its own stevedore is liable only for negligence in its
23a
Appendix A
‘owner’ capacity, not for negligence in its ‘stevedore’
capacity.” Jones & Laughlin, 462 U.S. at 53] n.6. While the
last clause, excluding liability for negligence “in its
‘stevedore’ capacity,” is dictum,'' this conclusion is the
logical result of the text and structure of the statute, and
comports with the instruction of the legislative history.
Insofar as the employer-vessel is negligent in its stevedore-
employer capacity, it is immune from suit under section
905(a). However, insofar as it is negligent in its vessel
capacity, it will be liable under section 905(b) in the same
manner as a third party. This bifurcated approach gives effect
to the express legislative intent that the rights and liabilities
of employer, employee and vessel be affected as little as
possible by the happenstance of whether the employee is
employed by an independent contractor or by the owner of
the ship.
2. A vessel's duties of care.
In Scindia Steam Navigation Co. v. De Los Santos, 451
U.S. 156 (1981), the Supreme Court examined the issue of a
vessel’s duties of care under section 905(b) in the context of
the classic triangular relationship among a vessel owner, an
independent stevedoring contractor and an injured
longshoreman employed by the stevedore. A longshoreman
11. Plaintiff Pfeifer, a longshoreman, slipped and fell on a barge
owned by his employer, which had “negligently failed to remove
[snow and ice] from the gunnels.” Jones & Laughlin, 462 U.S. at
526. The only issue of liability before the Supreme Court was
whether Pfeifer’s suit was precluded by the exclusive liability
language of section 905(a). The defendant did not contest that its
negligence was attributable to it in its Capacity as vessel owner.
24a
Appendix A
employed by an independent stevedoring contractor was
injured when he was struck by cargo falling from a pallet.
The pallet was suspended from a crane, which while
undisputedly part of the vessel’s gear, was operated by a
fellow longshoreman also employed by the stevedore. It was
alleged that the ship’s crane had been malfunctioning for
two days before the accident. At issue was (1) whether the
cargo had fallen because the winch’s braking mechanism
had slipped due to the alleged malfunction; and (2) whether
the vessel owner knew or should have known of the winch’s
faulty condition and had a duty to warn the stevedore and its
employees of this hazardous condition. Finding no duty, the
district court had entered summary judgment for the ship.
The Court of Appeals vacated and remanded for trial.
See Scindia, 451 U.S. at 159-64. The Supreme Court
affirmed. See id. at 179. However, the Supreme Court
disagreed with the court of appeals’s conclusion that the
vessel owner owed a continuing duty to inspect the vessel’s
gear, once the vessel had been turned over to the stevedore
in safe condition. See id. at 451 U.S. at 163, 172. While
noting the legal duties placed on the stevedore under section
41 of the LHWCA, 33 U.S.C. 941," and the vessel’s
justifiable expectation that the stevedore will perform those
duties, see Scindia, 451 U.S. at 176, the Supreme Court
articulated three duties that defined the scope of the vessel’s
duty of care in the classic tripartite situation under section
12. Section 941(a) requires that “[e]very employer shall furnish
and maintain employment and places of employment which shall
be reasonably safe for his employees in all employments covered
by this chapter” and authorizes the Secretary of Labor to determine
by regulation particular “devices ... safeguards ... and working
conditions.” 33 U.S.C. § 941(a).
25a
Appendix A
905(b). These have become known as the “Scindia duties.”
E.g., 1 Thomas J. Schoenbaum, Admiralty and Maritime Law
442 (2d ed. 1994).
First, before turning over the ship or any portion of it to
the stevedore, the vessel owner must exercise “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 operations with reasonable safety.” Scindia, 451 U.S.
at 167. As part of this duty, the vessel owner must also warn
the stevedore of hidden dangers that could not be discovered
through the exercise of reasonable care. See id. This set of
obligations is usually referred to as the “turnover duty.”
Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98 (1994).
Second, once stevedoring operations have begun, the
vessel will be liable “if it actively involves itself in the cargo
operations and negligently injures a longshoreman.” Scindia,
451 U.S. at 167 (emphasis added). A passive vessel owner
has no ongoing duty to supervise or inspect the stevedore’s
work — absent contractual, regulatory or customary
obligations to the contrary. See id. at 172. However, even
where the vessel does not actively involve itself in the
stevedoring operations, it may be liable “‘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.” Jd. at 167 (emphasis added). Therefore, the vessel
must take care to prevent unreasonable hazards in areas of
the vessel under its direct control. These related obligations
arising either from the vessel’s “active involvement” in cargo
26a
Appendix A
operations or its “active control” of areas of the vessel
encountered by longshoremen are commonly known as the
“active control duty.” £.g., England v. Reinauer Transp.
Cos., 194 F.3d 265, 270 (1st Cir. 1999); see also Howlett,
512 U.S. at 98.
Third, Scindia articulated an exception to the generally
limited duties imposed on the vessel once operations have
begun. With respect to obvious dangers in areas under the
principal control of the stevedore, the vessel owner must
intervene if it acquires actual knowledge that (1) a condition
of the vessel or its equipment poses an unreasonable risk of
harm and (2) the stevedore is not exercising reasonable care
to protect its employees from that risk. See Scindia, 451 U.S.
at 175-76. It was on this theory of liability that the plaintiff-
longshoreman in Scindia may have been entitled to go to a
jury. If the vessel knew of the dangerous condition of the
winch and the “improvident” failure of the stevedore to
protect its employees from that known hazard, the vessel
was under a “duty to intervene.” Jd. at 175-77; Howlett, 512
US. at 98.
3. The application of Scindia to dual-capacity cases not
involving stevedoring operations.
In Jones & Laughlin, the Supreme Court instructed that
a covered employee may bring a section 905(b) action for _
negligence against a dual-capacity defendant in its vessel
owner capacity; however, the Court has not yet explained
how to distinguish between the employer responsibility and
the vessel responsibility. See Morehead v. Atkinson-Kiewit,
J/V, 97 F.3d 603, 605 (1st Cir. 1996) (en banc). Nor has the
27a
Appendix A
Court yet explained how the principles it set out in Scindia
apply to claims brought by non-stevedoring harbor workers
covered under the LHWCA against a vessel owned by their
own employer. This case presents the question how to define
a dual-capacity defendant’s negligence in its role as vessel,
So as to distinguish such actionable negligence from its non-
actionable negligence in its role of construction contractor
employing covered harbor workers.
As noted, Scindia defined the vessel’s duty of care in
the context of the traditional arrangement of stevedoring
operations involving the triangular relationship of vessel,
independent stevedore-employer, and longshoreman
employee. See also Howlett, 512 U.S. at 96 (suggesting that
this is the typical relationship in the longshoring business);
Jones & Laughlin, 462 U.S. at 528 (“Most longshoremen
who load and unload ships are employed by independent
stevedores, who have contracted with the vessel owners to
provide such services.”). This case presents two variations
from that fact pattern. First, Gravatt was a dock builder — a
harbor worker covered under the LHWCA but not a
longshoreman. Second, S&B was acting as a dual-capacity
employer-vessel. The Supreme Court has not addressed the
extent to which Scindia’s analysis defines the vessel’s duties
to LHWCA-covered harbor workers not engaged in
longshoring operations; nor has it ruled on how Scindia
applies in dual-capacity cases. See Morehead, 97 F.3d at 611.
As to the first question, lower federal courts have
generally held that Scindia provides the appropriate point of
departure for analyzing a vessel’s liability in a section 905(b)
action brought by non-longshoring harbor workers.
28a
Appendix A
See, e.g., Morehead, 97 F.3d at 613 (applying Scindia in a
case concerning a bridge construction worker); Elberg v.
Mobil Gil Corp., 967 F.2d 1146, 1149-51 (7th Cir. 1992)
(affirming district court’s application of Scindia analysis to
define scope =f vessel duties to welder employed by ship
repair company); Levene v. Pintail Enters., 943 F.2d 528,
533-36 (Sth Cir. 1991) (applying Scindia analysis where
harbor worker was heavy equipment operator who was
injured on the deck of another owner’s barge); Teply v. Mobil
Oil Corp., 859 F.2d 375, 377 (Sth Cir. 1988) (noting in
principle that Scindia’s analysis of scope of vessel liability
under section 905(b) “applies to other harborworkers who
work on board vessels as well” and applying analysis to
worker employed by independent contractor who was injured
on an oil well accessible only by barge); Cook v. Exxon
Shipping Co., 762 F.2d 750, 752 (9th Cir. 1985) (holding
that Scindia duties “apply to employees of independent repair
companies who are working on a vessel”); Hill v. Texaco,
Inc., 674 F.2d 447, 451 (Sth Cir. 1982) (applying Scindia’s
analysis where plaintiff harbor worker was employee of
repair contractor hired to inspect storage tanks of oil tanker
for rust).
The more troublesome question, however, is how
Scindia’s instruction regarding the scope of the vessel’s
duties in the tripartite situation of employee, independent
employer and third-party vessel is to apply to the dual-
capacity case, where the LHWCA provides that the
employer-vessel owner is immune from suit for negligent
conduct in its “employer” capacity, see 33 U.S.C. § 905(a),
but liable for suit under section 905(b) for negligence in its
“owner capacity.” Jones & Laughlin, 462 U.S. at 531 n.6.
29a
Appendix A
The relationsiip seems clear as to the first prong of the
Scindia duties — the “turnover duty.” If because of
negligence of the ship’s crew, the vessel’s equipment is
faulty, or hidden dangers beset the contracted operation, so
that an experienced contractor could not safely carry out its
operations, such negligence would seem to constitute
negligence in the capacity as vessel and render the ship liable
whether the contracting operations were carried out by an
independent stevedore or by the same entity as owns the
vessel.'?
The application of Scindia’s second and third prongs
— the active contre! duty and the duty to intervene upon
actual knowledge — to the circumstance where the harbor-
work contractor and the owner of the vessel are the same
entity is more problematic. Where the contracted service is
performed by employees of the entity that owns the vessel,
by definition the vessel owner would have “actively
involved” itself in the operation and would have “actual
knowledge” of the failure of the personnel undertaking the
_—_—_-—
13. We use the example of stevedoring operations to illustrate
the issues involved in applying Scindia’s analysis to the dual-
capacity employer-vessel owner. The vessel-stevedore-
longshoreman relationship is intended only as a concrete example
of any vessel-employer-employee relationship that may arise under
the LHWCA’s definition of those terms. See 11 U.S.C. § 902(3),
(4), (21); cf Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 687 n.1
(2d Cir. 1978) (Friendly, J/., dissenting). In our case, the relationship
is between vessel (S&B qua vessel), construetion contractor (S&B
qua employer) and dock builder (Gravatt). The question of how
Scindia applies outside the context of stevedoring operations is
analytically distinct from the question of how it applies outside the
triangular relationship of parties.
30a -
Appendix A
task to operate in a manner that protected their cowork*s
from danger. Thus, if any “active control” or “ac: al
knowledge” on the part of the dual-capacity defendant were
sufficient to constitute actionable negligence under section
905(b) — regardless whether the defendant took control or
had knowledge in its employer capacity or its vessel capacity
— the availability of a tort remedy against the vessel would
turn on whether the harbor-working operations were
performed by a contractor independent of the vessel or by
the same entity that owned the vessel — except in the four
circumstances covered by the second and third sentences of
section 905(b). Harbor-working employees not within these
four specifically excluded categories would have more
expansive tort remedies if employed by a dual-capacity
employer-vessel owner than they would have if employed
by an independent contractor. By the same token, the dual-
capacity employer-vessel owner would have greater
liabilities than if the work arrangement involved a single-
capacity employer and a third-party vessel.'*
14. This can be seen by simple example. Suppose covered
workers are performing harbor work that is not within the express
statutory exclusions, and that the work involves the use of a vessel.
One of the workers is injured as the result of another’s negligent
performance of the work. If those workers were employed by a
contractor independent of the vessel, the injured worker is limited
to compensation; he has no negligence action against the vessel. If
on the other hand, the function is performed by the same entity that
owns the vessel, then by definition the vessel’s employees will have
directly involved themselves in the activities and will have actual
knowledge of the unsafe practices being used by the personnel
performing the task. Liability of the vessel in tort would follow.
3la
Appendix A
This result would be contrary to the express intent of
Congress, which sought generally in drafting section 905(b)
to provide the same result regardless whether the covered
work was performed by an independent contractor or by the
ship through personnel it hired directly to perform it.
See H.R. Rep. 92-1441, 1972 U.S.C.C.AN. at 4705.
It therefore appears that the Scindia tests for vessel
negligence, developed in the context of a tripartite
relationship between employee, independent contractor and
third-party vessel, cannot fully serve as the test for the
negligence ofa dual-capacity defendant in its vessel Capacity
without undermining the intent of Congress that the
availability of a section 905(b) negligence action against the
vessel should not depend on whether the vessel is owned by
a third party or by the employer.
In Morehead vy. Atkinson-Kiewit, J/V, 97 F.3d 603 (1st
Cir. 1996), the First Circuit, sitting en banc, recognized that
the liability of vessel owners would be greatly expanded in
dual-capacity cases if the knowledge or active control of the
dual-capacity defendant acting in its capacity as employer
could be imputed to it in its Capacity as vessel, thereby
exposing it to liability under section 905(b) for breach of
the second or third of the Scindia duties. See Morehead,
97 F.3d at 611. Following the analytical approach previously
employed in the Fifth Circuit, Morehead ruled that the dual-
capacity vessel could be held liable under section 905(b)
only to the extent that it breached its Scindia duties of care
while acting in its capacity as vessel. See id. at 613 (following
Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1033 (5th
Cir. 1985) (holding that the LHWCA “requires us to separate
32a
Appendix A
the negligence of the shipowner and that of the stevedore,
even when the shipowner performs its own stevedoring
activities” and that “the duty owed by a shipowner to a
longshoreman under section 905(b) is that established by
Scindia . . . ; this duty is neither heightened nor diminished
when the longshoreman is employed directly by the vesse!’’)).
Morehead is particularly instructive for our case because
the plaintiff, like Gravatt, was a harbor worker of a type not
expressly mentioned in the second and third sentences of
section 905(b). Morehead recognized that when the vessel
owner is also the employer, failure to distinguish between
its negligent conduct in its employer capacity, for which it
is immune to suit in tort under section 905(a), and its
negligence in its vessel capacity, for which it is liable to suit
under section 905(b), has the effect of undermining the
statutory scheme “by expanding the liability of employers
that act simultaneously as vessel owners, when the statute
does not call for such a reading and the Supreme Court has
cautioned against it.” Jd. at 613. The Morehead court
concluded that in determining whether the dual-capacity
vessel-employer had breached its Scindia duties while acting
in its vessel capacity, “a court may have to divide the
employer-shipowner into a hypothetical independent
employer and independent vessel owner, each separately
holding the duties allocated under principles suggested in
Scindia.” Id.
Plaintiff Morehead was employed as a carpenter on a
bridge construction project and a line-handler on a barge used
in the construction project. See id. at 605. Defendant
Atkinson-Kiewit (“A-K’”), the construction contractor, was
33a
Appendix A
Morehead’s employer, see 33 U.S.C. § 902(4), and, as the
charterer of the barge, the vessel owner, see 33 U.S.C.
§ 902(21). Morehead was injured on the barge when he
Stepped into an open hatch. The hatch had been left open
negligently by a co-worker, whose regular duties also
included both carpentry and linehandling. See Morehead, 97
F.3d at 605. Under normal principles of respondeat superior
the negligence of the co-worker would be imputed to A-K.
The court framed the question as whether the negligent act
of leaving the hatch open was attributable to A-K acting in
its employer capacity, thereby precluding a tort remedy under
section 905(a), or acting in its vessel capacity, thereby
exposing it to liability in tort under section 905(b). See id. at
608. The plaintiff argued that A-K, acting in its vessel
Capacity, violated the Scindia duties it owed him because
“at the time he was injured, A-K as vessel (rather than A-K
as employer) ... had ‘active contro]’ over or ‘actual
knowledge’ of the open hatch.” /d. at 614.
The First Circuit rejected the argument. It found that
Morehead’s co-worker, in opening the hatch, was acting as
an agent of his employer not as an agent of the vessel, because
the hatch was opened in furtherance of A-K’s operations as
a bridge builder, rather than in its capacity as vessel owner.
Id. at 616. It concluded that the barge tended by Morehead
and his co-worker were “operated within A-K’s control and
knowledge qua employer.” Id. at 614. The barge was
“analogized to the areas of a vessel taken over by longshore
workers in the Scindia setting.” Jd. Morehead’s co-worker
was found to have acted “as Morehead’s fellow employee
pursuing assigned harbor-worker duties rather than as A-K’s
agent in its distinct shipowner’s capacity.” Jd. at 616. Any
—
34a
Appendix A
negligence imputed to A-K was therefore attributable to its
capacity as employer, for which it was immune from liability
in tort under section 905(a).
We agree with that analysis of the application of Scindia
duties to the dual-capacity employer. Liability in vessel
negligence under section 905(b) will only lie where the dual-
capacity defendant breached its duties of care while acting
in its capacity as vessel owner.'* The negligent actions of a
dual-capacity defendant’s employees must be analyzed to
determine whether they were undertaken in pursuance of the
defendant’s role as vessel owner or as employer. The
negligence of the employer’s agents, acting in tasks
constituting harbor-work employment, may not be imputed
to their employer in its capacity as vessel owner. Congress’s
intention is best carried out through analysis of the dual-
capacity defendant’s allegedly negligent conduct to
determine whether it constituted negligence of the defendant
in its role as vessel owner, rather than within the scope of its
harbor-working activities. If the negligent conduct occurred
in the course of activity within the scope of the covered
harbor work — such that if a contractor independent of the
vessel were performing the work, its liability would have
15. We also agree with Morehead that Scindia may be an
appropriate starting point for determining the scope of those duties,
but recognize that certain harbor-work arrangements “may be so
foreign to those in Scindia’s stevedoring context that Scindia’s
analysis [regarding the scope of those duties] will become no more
than a point of departure.” Jd. at 613. The central question in each
case will be whether the negligence of a dual-capacity defendant is
attributable to its capacity as vessel owner or its capacity as
employer.
35a
Appendix A
been limited under section 905(a) to statutory compensation
payments — then liability should not lie against the vessel
under section 905(b) simply because the defendant was both
employer and vessel owner. ee
The approach adopted by the First and the Fifth Circuit
comports with our own cases in which we have consistently
recognized that Congress did not intend the rights of
employees and the liabilities of employers and vessels under
the LHWCA to turn on whether the injured employee was
employed by an entity acting in the dual capacity of employer
and vessel owner. See, e.g., Napoli v. Hellenic Lines, Ltd.,
536 F.2d 505, 507 (2d Cir. 1976) (“The expressed intent of
Congress was that the same principles should apply in
determining the liability of a vessel which employs its own
longshoremen as apply when they are the servants of an
independent contractor.”). As a corollary, in dual-capacity
cases “in order to determine whether a shipowner-employer
may be held liable for damages, a court must decide if the
negligence that caused the accident was owner occasioned,”
and “the key issue is whether the shipowner’s employees
who were at fault committed the negligent acts in their
Capacity as agents of the vessel on the one hand or as
employees performing longshoring, shipbuilding or repair
services on the other.” Smith v. Eastern Seaboard Pile
Driving, Inc., 604 F.2d 789, 795 (2d Cir. 1979) (internal
quotation marks omitted).
In summary, when the employer of an injured harbor
worker is also the owner of the vessel and is sued by the
harbor worker for negligence under section 905(b) for vessel
negligence, the court’s-task is to analyze the allegedly
36a
Appendix A
negligent conduct to determine whether that conduct was
performed in the course of the operation of the owner’s vessel
as a vessel or whether the conduct was performed in
furtherance of the employer’s harbor-working operations.
4. The application of the test to S&B’'s negligence.
The application of this test to the present facts leads to
the conclusion that S&B was negligent in its capacity as
employer, not in its capacity as vessel. Neither the materials
barge, nor the crane barge, nor anybody present at the bridge
repair site was engaged in vessel duties at the time of the
accident.
The task of the materials barge, as a vessel, was to--
transport building materials from Newark to the work site
and to transport debris from the work site to Newark. On the
other hand, the task assigned to the negligent Holzheuer and
the harbor-working gang of which Gravatt was a part was to
make repairs to the 145th Street Bridge, which included the
unloading of construction materials brought by the barges
and the reloading of the barges with debris. The performance
of the construction work was separate and apart from the
vessel’s work. Gravatt’s injury occurred by reason of
Holzheuer’s negligent conduct within the scope of
Holzheuer’s employment as a supervisory harbor worker
overseeing materials handling in making repairs to the bridge
— not in the performance of vessel-related duties. Holzheuer
was negligent as agent of S&B in its capacity as contractor
performing bridge repairs not in its capacity as vessel owner.
Had the bridge repairs been performed by a contractor
independent of the vessel, Gravatt, the injured employee,
37a
Appendix A
and Holzheuer, the negligent employee, would both have
been employees of the construction contractor, not of the
barge used to transport materials to the construction site. In
such circumstances it would have been clear that Gravatt’s
recovery was limited by section 905(a) to his compensation
remedy against his employer. He would have had no basis
for asserting negligence on the part of the barge owner, who
would have delivered the barge loaded with materials to the
construction site and been waiting to tow it back to Newark
once it was loaded with debris. The fact that Gravatt’s injury,
resulting from the negligence of his supervisor Holzheuer,
took place on a barge owned by their employer, does not
justify imposing negligence liability on S&B as owner of
the barge, as a third party. Because S&B’s negligence was
attributable to its Capacity as employer rather than its Capacity
as vessel, its exclusive liability to its injured employee is
for the statutory compensation payments under section 904.
See 33 U.S.C. § 905(a). There was no negligence of anyone
acting in a vessel Capacity to justify a tort action against the
vessel as third party under section 905(b).
As for the crane barge, for a long time it had been tied
up at the bridge, dedicated to the harbor-working project of
bridge repair. The crane barge was deployed directly in the
construction activity — to drive new piles, to extract old
piles and to excavate the river bed; it was also used to handle
the accident, the specific task of the crane barge, whose
negligent performance led to Gravatt’s injury, was the
stevedoring of the materials barge. Stevedoring work is
38a
Appendix A
treated by section 905(b) as not a part of vessel duties.
Employees injured while employed by a vessel to provide
stevedoring services are expressly barred from bringing a
suit for negligence against the vessel under section 905(b),
when their injury was caused by the negligence of other
persons engaged in providing stevedoring activities. See 33
U.S.C. § 905(b).
It may be viewed as an unhappy result to limit a worker
seriously injured by the negligence of an agent of his
employer to his statutory compensation payments. But that
is the intent of workers’ compensation laws and it is the result
intended by Congress under the LHWCA. The employer’s
immunity from liability in tort for its negligence is the rule
established by section 905(a), while an employee’s ability
to recover from the vessel under section 905(b) is the
exception. See Canizzo v. Farrell Lines, Inc., 579 F.2d 682,
687 (2d Cir. 1978) (Friendly, J., dissenting) (“Courts must
be exceedingly careful in defining the contours of the
[covered employee’s] action for negligence against the ship
... lest too expansive notions of the ship’s duty vitiate
Congress’ intent to do away with absolute liability for vessels
... and make greatly improved compensation benefits the
primary remedy for longshoremen and harbor workers.”);
Morehead, 97 F.3d at 613; Levene v. Pintail Enters., 943
F.2d 528, 531 (Sth Cir. 1991) (“The availability of a tort
remedy for vessel negligence is a limited exception to the
... LHWCA, which. . . generally replaces negligence causes
of action against employers with a system of predetermined,
standardized benefits.”) (footnote omitted). Congress
adopted this position in part because it believed that the best
way to protect harbor workers from injury was to place
39a
Appendix A
no-fault responsibility for compensation on their employers.
To place tort liability on the vessel merely because it is owned
by the same entity as employed the covered workers would
be contrary to the scheme Congress developed.
5. The district court’s reasoning.
The district court imposed liability on S&B on the basis
of separate, alternative lines of reasoning. It read Fanetti v.
Hellenic Lines, Ltd., 678 F.2d 424, to mean that in a dual-
capacity case “the owner-employer is liable to the worker
for injuries caused by the oOwner-employer’s negligence . . .
[regardless] whether the acts of negligence are attributable
to the owner-employer in its Capacity as owner or as
employer.” Gravatt, 53 F. Supp. 2d at 424. Alternatively,
the district court ruled that “[e]ven under Morehead, S&B
as vessel owner” breached its Scindia duties, Gravatt,
53 F. Supp. 2d at 421 (emphasis added); and relying on a
passage from Smith v. Eastern Seaboard Pile Driving, Inc.,
604 F.2d 789 (2d Cir. 1979), it concluded that “Gravatt is
entitled to recover against S&B because the injuries were
caused by S&B in its capacity as vessel owner.” Gravatt,
53 F. Supp. 2d at 423 (emphasis added). We believe the court
misinterpreted the authorities on which it relied.
The district court recognized that Morehead’s analysis
requires the court to distinguish a dual-capacity defendant’s
conduct in its employer capacity from its conduct in its vessel
capacity, and that in undertaking this analysis the “ ‘court
may have to divide the employer-shipowner into a
hypothetical independent employer and independent vessel
owner, each separately holding the duties allocated under
40a
Appendix A
principles suggested in Scindia.’ ” Gravatt, 53 F. Supp. 2d
at 421 (quoting Morehead, 97 F.3d at 613).'® Applying this
mode of analysis, the district concluded that:
S&B as vessel owner had active control over the
vessel and its cargo of debris and new material,
and knew or should have known['’] about the
hazards created when commingling debris and
new material and the potential for injury-causing
accidents to occur, making it liable under Scindia
16. The district court went on to quote, with added emphasis,
Moreheada’s observation that “ ‘fo]n occasion, however, the duties
and work arrangements pertaining to a suing harbor worker may
be so foreign to those in Scindia's stevedoring context that Scindia’s
analysis will become no more than a point of departure.’ ” Gravatt,
53 F. Supp. 2d at 421 (quoting Morehead, 97 F.3d at 613 (emphasis
added in Gravatt)). We think the district court misread the significance
of Morehead’s caution that Scindia will sometimes provide only a
starting point for defining the scope of a vessel’s duties of care.
That caution does not abrogaie the need to distinguish in dual-
capacity cases between defendant’s negligence qua vessel and its
negligence gua employer. As we recognized as early as Smith, that
distinction is always the “key issue” in dual-capacity cases. Smith,
604 F.2d at 795. Morehead cautions only that in defining the vessel’s
duties of care qua vessel in a non-stevedoring case, Scindia’s instruction
may sometimes not be that pertinent. It provides no support for the
conclusion that “[t]here is no need to determine whether the acts of
negligence are attributable to the owner-employer in its capacity as
owner or as employer.” Gravatt, 53 F. Supp. 2d at 424.
17. Even under Scindia’s duty to intervene, “should-have-
known” constructive knowledge is insufficient to meet the actual
knowledge requirement. See 1 Thomas J. Schoenbaum, Admiralty
and Maritime Law 447 & n.74 (2d ed. 1994).
4la
Appendix A
standards. S&s did not exercise ordinary care in
keeping its debris/material barge, crane barge, and
vessel equipment in a condition that would permit
its workers, who were not expert and experienced
stevedores, to carry on cargo operations
safely. ... S&B failed to fulfill its Scindia duty
to intervene and correct the hazardous condition
created by commingling the debris and good
materials on its barges and the use of timber tongs.
Morehead also holds that the Scindia duty arising
from active control over a hazardous condition is
triggered when the dangerous condition is on the
vessel itself.
Id. at 421-22 (citations omitted).
In our view the district court’s observations justify the
conclusion that S&B was negligent, but not that it was
negligent in its capacity as vessel owner. A-K, the vessel
owner in Morehead, also had been negligent in circumstances
where its agents exercised active control of the barge and
had actual knowledge of the hazard. Nonetheless it was not
held liable under section 905(b) because its negligence was
in its capacity as the employer of construction workers, rather
than in its capacity as vessel owner. See Morehead, 97 F.3d
at 614, 616. Although the dangerous condition arose on
A-K’s vessel through the negligence of A-K’s employee, it
was caused by the negligence of a worker acting within the
scope of his employment as a harbor worker who had been
employed by the dual-capacity defendant in its Capacity as
construction contractor. In its role as vessel owner, A-K had
turned the vessel over to the care of its harbor workers
assigned to the construction project.
42a
Appendix A
The same is true of this case. Gravatt and his foreman
Holzheuer were hired by S&B in its capacity as construction
contractor to make repairs to the bridge’s fender system. S&B
also chartered barges. S&B’s crane barge had been turned
over to S&B’s harbor construction workers: it was used either
directly in construction activities — extracting old piles,
driving new piles and excavating the river bed — or in the
materials handling operations. S&B’s materials barge, having
transported construction materials from Newark to the bridge
site, was turned over to S&B’s construction employees to
have the new materials offloaded and the debris materials
loaded on. In performing this materials handling operation,
these employees acted negligently, but this negligence arose
from operational decisions made by S&B in its capacity as
construction contractor not in its capacity as vessel owner.
While S&B had “active control” over the barge, and “actual
knowledge” of the negligent conduct, those facts are not
sufficient to render it liable, unless that active control or
actual knowledge was in its role as vessel owner.'*®
18. As we have noted, in a non-stevedoring case involving
harbor work, Scindia’s delimitation of the scope of the duties of
care owed by the vessel may only provide a starting point for the
analysis of whether the vessel was negligent. See supra note 15.
Even applying Scindia’s tests mechanically, we conclude no agent
of S&B in its vessel capacity “actively involve[d]” itself in the
material handling operations. Scindia, 451 U.S. at 167. And there
were no areas of the barge that remained outside the control of the
construction workers and therefore under “the active control of the
vessel.” Jd. The district court’s assertion that “Morehead . . . holds
that the Scindia duty arising from active control over a hazardous
condition is triggered when the dangerous condition is on the vessel
itself,” Gravatt, 53 F. Supp. 2d at 422, misreads Morehead’s holding
(Cont’d)
43a
Appendix A
In further support of its conclusion that Gravatt’s injuries
“were caused by S&B in its Capacity as vessel owner,”
Gravatt, 53 F. Supp. 2d at 423, the court also cited eur
opinion in Smith, 604 F.2d 789, and quoted language from
that opinion which stressed that the “ ‘acts and Omissions
found to constitute actionable negligence all took place prior
to the actual dive’ ” in which the covered worker drowned.
Gravatt, 53 F. Supp. 2d at 424 (quoting Smith, 604 F.2d at
796). The district court reasoned that “S&B’s negligence
[also] preexisted the date of the injury,” id., because the
evidence showed that S&B’s negligent work practices —
the mixing of debris and new material on the materials barges
and the use of timber tongs as hoisting equipment — “were
consistent practices adopted prior to the accident.” Jd.
We do not agree with this understanding of Smith. In
Smith, decided before Scindia, Fanetti and the 1984
Amendments, we recognized that in dual-capacity cases “in
order to determine whether a shipowner-employer may be
held liable for damages, a court must decide if the negligence
that caused the accident was owner occasioned.” Jd. at 795
(internal quotation marks omitted). Therefore, “the key issue
[was] whether the shipowner’s employees who were at fault
committed the negligent acts in their Capacity as agents of
the vessel on the one hand or as employees performing
(Cont’d)
and reasoning. No liability was found in Morehead, notwithstanding
that the hazardous condition (the open hatch) was “on the vessel
itself,” because the hazard arose while the barge was not in the active
control of the dual-capacity employer acting in its capacity as vessel
owner. That the hazard was “on the vessel” is insufficient ground to
impose liability.
44a
Appendix A
longshoring, shipbuilding, or repair services on the other.”
Id. Our approach in Smith, therefore, is consistent with the
bifurcated analysis of the conduct of a dual-capacity
defendant adopted by the First Circuit in Morehead and the
Fifth Circuit in Castorina. The key question is, in what
capacity was the defendant negligent?
In Smith, plaintiff's deceased husband was employed by
defendant as a diver to inspect underwater damage to a
dredge, owned by the defendant. He worked off a tug which
was also owned by the defendant. When he jumped into the
water, the heavy equipment he wore overturned him, putting
him in distress. The efforts of the tug personnel to right him,
buoy him and haul him from the water were unsuccessful
and he drowned. The jury at trial determined that the
defendant was negligent by reason of the tug’s failure to have
(i) an emergency plan, (ii) a rescue line, life ring or life raft,
and (iii) a ladder to facilitate reboarding. The district court,
however, entered judgment for the defendant because it held
that the negligence was that of tug employees who, like the
decedent, were involved in the provision of repair services.
See Smith, 604 F.2d at 792-93.
We reversed, directing the entry of judgment for the
plaintiff. See id. at 798. Plaintiff argued to us that defendant’s
“negligence as shipowner rather than the negligence of its
employees acting as repairmen caused the drowning.” Jd. at
793. We agreed. We observed that in ruling for the defendant,
the district court did not undertake _
sufficient scrutiny of the particular negligent acts
that were found to have been committed. The acts
45a
Appendix A
and omissions found to constitute actionable
negligence all took place prior to the actual dive
and were akin to a failure to provid a safe place
to work. The absence of a rescue plan, the
improper placement of emergency apparatus, and
the failure to provide a ladder or plaifcmm were
all defects in the general operation of the tug, and
it is merely fortuitous that they came to light
during a dive that was part of a repair program.
Id. at 796 (footnotes omitted).
The negligence was found to be in the vessel capacity
because it consisted of the failure to equip the tug properly
for emergencies. That the negligent acts occurred prior to
the accident, the fact upon which the district court in our
case focused, was not the crucial point in Smith; it was merely
a facet of the overall conclusion that the negligence was in
the role of vessel and not in the role of employer performing
the task for which the plaintiff was hired.
As we have seen, that bifurcated analysis leads to an
Opposite conclusion in this case. It may be that the patterns
of negligent conduct — the loading of debris so as to obstruct
access to new materials and the use of tongs — had been
established prior to the accident that resulted in the injury.
But those negligent work practices were undertaken as part
of the materials handling process in performance of the
bridge repairs for which plaintiff was hired. They were not,
as was the case in Smith, a part of the “operation of the [vessel].”
Accordingly, the record of consistently negligent work practices
establishes only that S&B was a consistently negligent
46a
Appendix A
employer that routinely failed to provide a safe place to work.
And Gravatt’s remedy against S&B in its capacity as bis
employer is limited to the statutory compensation payments
under section 904. See 33 U.S.C. § 905(a). The record proves
only negligence in S&B’s role as the employer of Gravatt
and his crew, not in S&B’s role as vessel owner.'®
19. In this respect, there is a somewhat confusing observation
in the Smith opinion. After explaining that the negligent acts
justifying the vessel’s liability were defects in the general operation
of the tug and not a part of the repair program, the court observed
that “Eastern [the employer and owner of both the tug and the
damaged dredge] might have escaped liability if it had surrendered
control over the operation to a subcontractor that could supply and
supervise its own divers.” Smith, 604 F.2d at 796. That observation
might seem to contemplate that a different result would obtain
depending whether an independent contractor were employed. But
if Eastern had employed an independent contractor for the dive,
nonetheless using its own tug to bring the diver to the repair site,
and the accident had happened in the same fashion, Eastern would
have remained liable for its negligence as third party under the first
sentence of 905(b) because the negligence giving rise to the liability
was premised not on how the diving operation was performed but
rather on Eastern’s failure as tug owner to equip its tug with a proper
rescue plan and rescue equipment. What the court must have
contemplated in the sentence was that Eastern might not only have
hired an independent contractor to provide the diver but also relied
on that independent contractor to supply the tug that brought the
diver to the site. In those circumstances, it is true Eastern would
have escaped liability — because there would have been no
negligence whatsoever on Eastern’s part. Nonetheless the result
would have been similar in that the tug owner would have incurred
liability for furnishing a negligently equipped tug. From the point
of view of the vessel and the plaintiff, the result would have been
the same. The only change would have been in the identity of the
owner of the vessel held liable to the plaintiff.
47a
Appendix A
As noted, the district court’s second basis for imposing
liability was its reading of Fanetti, 678 F.2d 424. In response
to S&B’s argument that it was negligent in its role as
employer, not in its role as vessel owner, the court explained,
[ijn Fanetti, the Second Circuit answered the
question of whether a shipowner choosing to act
as its own stevedore is entitled to insulation from
liability, partial or total, which hiring an
independent stevedore might otherwise afford.
The Second Circuit answered that question in the
negative, affirmed a verdict in favor of the
plaintiff, and held that a shipowner choosing to
act as its own stevedore is not entitled to insulation
from liability under the LHWCA. S&B as vessel
owner in this case, acted as its own [contractor],
and any negligence on its part is actionable vessel
owner negligence under § 905(b).
OR Ae ee eh
Sa digadne
eri tee, ve
walieshiherdaos tee
nt
Gravatt, 53 F. Supp. 2d at 420-21 (emphasis added). The
district court concluded that:
Pm steonaenen es —
adasShaastuaene na Se
Under Fanetti, . .. when an owner-employer does
not use an independent stevedoring contractor to
load, unload, or restow cargo, the owner-employer
is liable to the worker for injuries caused by the
owner-employer’s negligence. There is no need
to determine whether the acts of negligence are
attributable to the owner-employer in its capacity
as Owner or as employer.
Id. at 424 (emphasis added).
48a
Appendix A
This conclusion is contrary to the Supreme Court’s
observation in Jones & Laughlin that “a vessel owner acting
as its own stevedore is liable only for negligence in its
‘owner’ capacity, not for negligence in its ‘stevedore’
capacity.” Jones & Laughlin, 462 U.S. at 531 n.6. It conflicts
with Congress’s express intent, and the logic and language
of the LHWCA, that the worker’s entitlement to a tort remedy
should not depend on whether he was employed directly by
the vessel or by an independent contractor. See id. at 532;
Edmonds v. Compagnie Generale Transatlantique, 443 U.S.
256, 266 (1979). Finally, it conflicts with our own previous
case law which recognizes this intent. See Napoli, 536 F.2d
at 507; Smith, 604 F.2d at 795; Albergo v. Hellenic Lines,
Inc., 658 F.2d 66, 68-69 (2d Cir. 1981).
We believe the district court read the pertinent passage
from Fanetti out of context. Pasquale Fanetti worked as a
longshoreman loading containers on board the Hellenic
Splendor. Hellenic Lines Ltd. (“Hellenic”), the owner of the
vessel, made a practice of hiring its own longshoremen, rather
than engaging a stevedoring contractor. Thus Hellenic stood
in a dual capacity with respect to Fanetti, acting both as his
employer and as the vessel on which he worked. Fanetti was
injured when he slipped and fell by reason of greased and
oily lashing gear, which the vessel’s crew negligently had
left obstructing a walkway. The vessel’s crew was
responsible for lashing down the cargo containers after they
had been loaded by the longshoremen. The crew had left the
lashing gear on the deck in preparation for that task. Both
Fanetti and his hatch boss on the stevedoring crew had
complained to the vessel’s crew about the obstruction to the
walkway, but to no avail. See id. at 426.
49a
Appendix A -
Not surprisingly, the jury found that Fanetti was injured
as the result of negligence on the part of the vessel, and the
district court entered judgment against Hellenic. It was clear
that “[c]rew negligence created the hazard.” Jd. at 427. The
negligence had been in the dual-capacity employer’s role as
vessel owner. On appeal, Hellenic did not dispute that
proposition. See id. at 426 (“We do not understand Hellenic
to dispute on the appeal that the vessel’s crew, in the
performance of work unrelated to the longshoremen’s loading
of cargo, created a condition on deck dangerous to the
longshoremen who had to work there.”). Rather Hellenic
contended that notwithstanding that the dangerous condition
arose from the negligent conduct of its vessel’s crew, the
jury should have been instructed that the “stevedore bears
the primary responsibility to correct dangerous conditions”
and that liability under section 905(b) lies against the vessel
only if the vessel could reasonably anticipate that the
stevedore would not correct the hazard. Jd. at 427. Hellenic
argued that the jury should have been instructed on the
distinction between the safety responsibilities of the
shipowner and the stevedore; in particular Hellenic
complained that the jury was not instructed that the stevedore
was responsible for insuring compliance with health and
safety regulations relating to longshoring. Jd. at 427.
We disagreed and affirmed the district court. We noted
that even if the jury had been instructed in the manner that
Hellenic requested, “exoneration of Hellenic on the evidence
in this case [was] unlikely.” Jd. However, we declined to
affirm on the basis that any error in the charge was harmless.
We noted that in Doca v. Marina Mercante Nicaraguense,
S.A., 634 F.2d 30 (2d Cir. 1980), this court had impe.sed a
sta se een aimancenehas
wabandtnidiemienienetcies eaten
50a
Appendix A
10% share of responsibility on a stevedore, which had failed
to discharge a non-delegable duty imposed by an OSHA
regulation requiring it to keep its work area free of tripping
hazards, notwithstanding “ ‘[t]he fact that the hazard was
primarily the ship’s responsibility.’ ” Fanetti, 678 F.2d at
427-28 (quoting Doca, 634 F.2d at 33). Because we were
“not prepared to say that no reasonable jury could find that
the obstruction was at a place where an independent
[stevedore] contractor (if one existed) would have been
expected to remove it,” we therefore reached the question
“whether a shipowner choosing to act as its own stevedore
is entitled to that insulation from liability, partial or total,
which hiring an independent contractor might have afforded.”
Id. at 428
We answered the question “in the negative,” citing the
language of Judge Van Graafeiland in Napoli, 536 F.2d at
508, and of Judge Friendly in a dissenting opinion in Canizzo
v. Farrell Lines, 579 F.2d 682, 689 (2d Cir. 1978), to the
effect that to relieve a shipowner of liability for a dangerous
condition it had created because that hazard was known to
the stevedore was clearly inappropriate where the shipowner
acts as its own stevedore. See Fanetti, 678 F.2d at 428.
While it is true we concluded in Fanetti that “a shipowner
choosing to act as its own stevedore is [not] entitled to that
insulation from liability, partial or total, which hiring an
independent contractor might have afforded,” id. at 428, the
district court read far too much into the statement.”° See Gravatt,
20. We recognize that the district court was not alone in reading
Fanetti to establish that a dual-capacity defendant will be liable in
(Cont’d)
Lechag
Sla
Appendix A
See Gravatt, 53 F. Supp. 2d at 424 (“There is no need to
determine whether the acts of negligence are ... in its
Capacity as owner or as employer.”). Fanetti did not mean
that when a vessel hires its own personnel to perform harbor
work, rather than bringing in an independent contractor, it
is liable to the workers in tort for all injuries caused by the
negligence of its employees, regardless whether the negligent
conduct occurred while the defendant was operating in the
capacity of vessel or of employer.
It was undisputed that Hellenic’s negligent acts in
Fanetti were committed in its role as vessel by the vessel’s
(Cont’d) or
negligence under section 905(b) regardless whether its negligent
conduct was in its Capacity as the employer of harbor workers
covered under the LHWCA or in its Capacity as vessel. See, e.g.,
Morehead, 97 F.3d at 611 (hypothesizing that we would no longer
endorse Fanetti in the light of the Supreme Court’s decision in Jones
& Laughlin); Sutherland y. City of New York, 699 N.Y.S.2d 426,
431 (2d Dep’t 1999) (adopting the First and Fifth Circuits’ analysis
as “consistent with Congressional intent and the limitations on
employer liability set forth in the LHWCA” and Suggesting we would
no longer endorse F, anetti); Frazor T. Edmondson, Toward a Vessel
Owner’s Interpretation of Dual Capacity: Why Fanetti Should be
Deemed Implicitly Overruled, 18 Del. J. Corp. L. 477 (1993). We
agree that such a reading of Fanetti endorses a result that conflicts
with the intentions expressed in the House Committee Report, with
the Supreme Court’s admonition that “all longshoremen are to be
treated the same whether their employer is an independent stevedore
or a shipowner-stevedore,” Edmonds, 443 U.S. at 266; accord Jones
& Laughlin, 462 U.S. at 532, and with our own case precedents,
see Napoli, 536 F.2d at 507; Smith, 604 F.2d at 795; Albergo, 658
F.2d at 68-69. We respectfully believe that the district court and the
cited commentators have read more into Fanetti than we intended.
52a
Appendix A
permanent crew. Had the negligent obstruction of the
walkway resulted from the carelessness of the stevedoring
gang, which Hellenic had hired directly rather than retaining
a stevedoring contractor, Fanetti does not suggest that the
vessel would have been liable in tort under section 905(b).
Such a result would make the vessel’s liability turn on
whether the shipowner hired a stevedoring contractor or
directly hired the longshoring crew — the very result
Congress sought to avoid. See H.R. Rep. 92-1441, 1972
U.S.C.C.A.N. at 4705; see also Jones & Laughlin, 462 U.S.
at 532 (“ ‘[A]ll longshoremen are to be treated the same
whether their employer is an independent stevedore or a
shipowner-stevedore ....’”) (quoting Edmonds, 443 U.S.
at 266); Napoli, 536 F.2d at 507 (“The expressed intent of
Congress was that the same principles should apply in
determining the liability of a vessel which employs its own
longshoremen as apply when they are the servants of an
independent contractor.”).
What we meant in Fanetti was that a shipowner that has
incurred liability in its vessel capacity by the negligent acts
of its vessel’s crew cannot escape any part of that liability
by pointing to the failure of its own stevedoring employees
to correct the hazard. A dual-capacity defendant, negligent
in its vessel capacity, cannot escape liability under section
905(b) by asserting that it should have removed the hazard
in its stevedoring capacity.’ In this case, however, the
—~——
21. We note a further reason why the Fanetti discussion cannot
justify the result reached by the district court. When Fanetti
entertained the question whether a shipowner acting as its own
stevedore is entitled to “that insulation from liability, ... which
(Cont'd)
53a
Appendix A
(Cont’d)
hiring an independent contractor might have afforded,” it was
considering a speculative possibility. Fanetti, 678 F.2d at 428
(emphasis added). But the supposition entertained by Fanetti that a
shipowner that had negligently created a dangerous condition in its
vessel capacity could diminish its iisbility simply by hiring an
independent stevedore is contrary to fact. /.s the Supreme Court made
clear in Edmonds, in the classic triangular situation in which the covered
worker is employed by an independent contractor, if the worker’s injury
is caused by negligence on the part of both the vessel and the worker’s
independent employer, the employer will be shielded from liability in
tort by the exclusivity of the compensation remedy and the vessel will
be liable for the full extent of the harm. See Edmonds, 443 U.S. at 264
(“[T]he longshoreman may recover the total amount of his damages
from the vessel if the latter’s negligence is a contributing cause of his
injury, even if the [employer] stevedore, whose limited liability
[compensation] is fixed by statute, is partly to blame.”).
The Fanetti court contemplated that the vessel’s employment of
an independent contractor might diminish its liability because, in Doca,
a ten percent allocation of liability had been placed on the independent
stevedore by reason of its failure to clear up the hazard negligently
created by the vessel. But Doca did not involve the relationship between
third parties. Neither was shielded from liability by the exclusivity of
the compensation remedy, and neither was barred from seeking
coniribution against the other. The judgment was presumably joint and
several. The injured worker was therefore able to recover 100% of his
judgment against either third-party tortfeasor.
Although it is true that the ship was able to recoup a part of the
judgment by virtue of the independent stevedore’s comparative fault
- (Cont'd)
54a
Appendix A
threshold question is whether S&B was negligent in its vessel
capacity.
If the dual-capacity defendant acts negligently as an
employer, its exclusive liability under LHWCA is for
compensation, just as if it were an independent contractor.
If its negligence is in its vessel capacity, it is liable to its
employee in tort under section 905(b), to the same extent as
a third-party vessel would be liable to the injured employee
of an independent employer injured as the result of the third-
party vessel’s negligence, and the vessel does not escape
liability on the theory that its employees acting in furtherance
of its employer capacity ought to have prevented the injury.
Because S&B’s negligence which caused Gravatt’s
injury was committed only in its role as his employer in the
bridge repairs, and not in its roie as owner of the barge on which
he was injured, S&B’s liability is limited by the LHWCA to
compensation. The judgment against it must be vacated. It is,
therefore, not necessary to reach the other arguments raised.
CONCLUSION
The judgment against S&B is reversed.
(Cont’d)
and that this would not have been possible if the ship had acted as
its own stevedore, that is simply because the division of roles in
Doca resulted in a larger number of third-party tortfeasors. It did
not affect the amount the plaintiff was entitled to recover. If the plaintiff
in Doca had been the employee of the independent stevedore, the full
liability would have fallen on the ship, without right of contribution.
See 33 U.S.C. § 905(b) (overruling Ryan indemnity).
55a
APPENDIX B — REVISED OPINION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK DATED MAY 24, 1999
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
97 Civ. 0354 (RWS)
STEVEN GRAVATT and DELORES GRAVATT,
Plaintiffs,
— against —
THE CITY OF NEW YORK, SIMPSON & BROWN, INC.,
N. MASSAND, P.E., L.S., P.C., a/k/a NANIK MASSAND,
P.E., BARGE “ABC” and BARGE DEF, their engines,
boilers, tackle, etc., in rem,
Defendants.
REVISED OPINION
ss * * &*
Sweet, D.J.
Plaintiffs Steven Gravatt (“Gravatt”), a journeyman dock
worker and his wife Delores Gravatt (“Mrs. Gravatt”)
(collectively the “Gravatts”) have sought damages from
defendants The City of New York (the “City”), Simpson &
Brown, Inc. (“S&B”), the employer of Gravatt, and
N. Massand, P.C. (“Massand”), an engineering firm, arising
56a
Appendix B
out of an injury Gravatt received while working on the City’s
145" Street Bridge (collectively, the “Defendants”’). The City
has cross-claimed against S&B and Massand and Massand
has cross-claimed against S&B.
Upon the findings of fact and the conclusions of law set
forth below, judgment will be entered in favor of Gravatt
and Mrs. Gravatt against the City, Massand and S&B.
Judgment will be entered in favor of the City on its cross-
claim for indemnity against S&B and Massand. Massand’s
cross-claim against S&B will be dismissed.
The Issue
A relatively simple accident has given rise to a
complicated litigation in which five causes of action are
alleged against three corporate defendants with a web of
cross-claims asserted among the defendants. Because of the
uncertainties of the law and the conflicting views of insurance
coverage, it has not been possible to accomplish a simple
and just resolution by compromise and common sense. The
complicated findings and conclusions set forth below result
from the inability of insurers to agree on questions of
coverage. It is that expensive offstage controversy which has
driven this litigation, conducted "* skilled and able lawyers
for each of the parties. :
Once again, the Court has been cast into “The Devil’s
Own Mess.” Indeed, to obtain a just result for the Gravatts
1. See D. Currie, Federalism and the Admiralty: “The Devil’s
own Mess,” 1960 S. Ct. Rev. 158 (1960).
ee. ye
Appendix B
it has become necessary to deal with some of the most
exasperating issues in tort law, complicated by difficult
legislation and precedent as will be apparent from what
follows.
Prior Proceedings pis
This action was commenced on January 16, 1997 by a
complaint which set forth five causes of action: (1) liability
of the City and Massand under the Labor Law of New York
and federal law; (2) common law negligence against S&B
and Massand; (3) a seaman’s maritime claim based upon an
unseaworthy vessel against S&B; (4) a claim against S&B
as owner of the barges for negligence, defective maintenance
and improper working conditions; and (5) loss of consortium
by Mrs. Gravatt. Answers were filed and pretrial proceedings
and discovery were had.
An opinion of April 6, 1998 (the “April 6 Opinion”)
resolved summary judgment motions holding that the
Gravatts were entitled to judgment against -the City and
Massand under New York Labor Law §§ 200, 240(1), and
241(6) with the issue of contributory negligence under
§§ 200 and 241(6) reserved for trial, and that the Gravatts
Stated claims under Section 905(b) of the Longshore and
Harbor Worker’s Compensation Act, 33 U.S.C.A. §§ 901-
950 (“LHWCA”), and the Jones Act, 46 U.S.C.A. § 688,
that the City is entitled to indemnity from Massand and S&B,
that Massand is not entitled to indemnity from S&B with
Massand’s contribution claim against S&B reserved for trial.
See Gravatt v. The City of New York, 1998 WL 171491
(S.D.N.Y. April 6, 1998).
58a
Appendix B
Thereafter, all of the defendants moved for reargument
and two of them (the City and S&B) also sought an order
certifying the Opinion for an interlocutory appeal pursuant
to 28 U.S.C.A. § 1292(b). The opinion of June 24, 1998
denied the motion for certification, denied Massand’s motion
for indemnity against S&B, dismissed S&B’s claims for
indemnity and contribution against Massand, denied the
City’s motion to reconsider the application of the Labor Law
to the action, granted S&B’s motion to dismiss the plaintiffs’
Jones Act claim, and amended the identity of the insurance
company providing certain coverage to Massand. See 1998
WL 341941 (S.D.N.Y. June 24, 1998).
Massand then made a second motion to reargue the
Court’s decision regarding Massand’s contribution claims
against S&B. The opinion of August 19, 1998 dismissed
Massand’s second motion to reargue as moot, noting that
Massand’s indemnity claim against S&B had been dismissed,
not its contribution claim. See 17 F.Supp.2d 247 (S.D.N.Y.
1998).
Prior to trial, the parties consented to a bench trial which
commenced on November 30, 1998, and continued through
December 4, 1998. The Gravatts called seventeen witnesses.
S&B called two expert witnesses and the City called no
witnesses. Final argument and submissions were completed
on February 3, 1999.
On March 3, 1999, an opinion was filed containing
findings of fact and conclusions of law based upon the bench
trial (the “Opinion”). The Gravatts then moved under Rule
52(b) to amend the Opinion, which motion was granted by a
59a
Appendix B
companion opinion filed this date, setting forth the basis for
the revisions contained in this revised opinion.
Findings of Fact
The Parties
Gravatt is a New Jersey resident and a journeyman dock
builder and harbor worker who has worked for S&B since
1993. Gravatt has been married to Mrs. Gravatt for over
seventeen years. Gravatt suffered severe, permanently
disabling injuries while working at the 145" Street Bridge
in Manhattan on January 31, 1996. He was 37 years old at
the time of the accident.
The City of New York is a municipal corporation which
maintains the New York City Department of Transportation
in which there is a division formerly known as the Bureau
of Bridges, now known as the Division of Bridges.
S&B is a New J ersey construction company.
Massand is a New York engineering firm.
The Project
_ In late 1992, the Bridge Component Rehabilitation
Section began a project in Manhattan to replace the fender
systems on the Third Avenue and 145" Street Bridges which
span the Harlem River (the “Project’’).
The fender system is a structure that looks like a pier
which is attached to and surrounds the stone and mortar
- tae ntememme ne
60a
Appendix B
center stanchion of the bridge and consists of heavy pilings
and timbers, and smaller, horizontal and diagonal pieces of
lumber known as walers and braces for the purpose of
protecting the bridge from collisions with ships traveling in
the river. Its construction required the demolition and
removal of the old, existing fender and some excavation of
the river bottom.
The two bridges which were the subject of the Project
are owned by the City and the Project was funded entirely
by the City without state or federal financial aid. It was
completed in 1996.
The City hired two contractors to perform the Project: a
consulting engineer, Massand, to provide engineering,
design, and other services; and S&B to do the construction.
The City entered into a written contract with each defendant
contractor. The contracts were awarded by competitive
bidding, and Massand and S&B were the low bidders on
their respective contracts.
The Contracts
Compliance with state and federal safety statutes was a
standard practice of City construction projects. The contracts
with Massand and S&B contained numerous ne aes
provisions.
The contract between the City and S&B was entered into
on May 7, 1992. It contained the following provisions:
Labor Law Requirements. The successful bidder
[Simpson & Brown] will be required to comply
6la
Appendix B
strictly with all Federal, State and local labor laws
and regulations, including but not limited to
providing on-the-job training Opportunities and
payment of prevailing wages.
Article 5. Compliance with Laws. The Contractor
must comply with all local, state and federal laws,
rules and regulations applicable to this contact and
to the work to be done hereunder, including, but
not limited to, the Federal Occupational Safety
and Health Act of 1970 [“OSHA”] the Construction
Safety Act of 1969, as amended, and the
following. ...
Article 30. The Resident Engineer. The Resident
Engineer shall be the representative of the
Engineer at the site, and, subject to review by the
Engineer, shall have the power, in the first
instance, to inspect, supervise and control the
performance of the work... .
Article 36. Labor Law Requirements. The
Contractor must strictly comply with all
applicable provisions of the New York State Labor
Law, as it may be amended and supplemented
thereto, and the provisions of Section 343-9.0 of
the New York City Administrative Code, as
amended. ...
Article 36(b). That no part of the work, labor or
services shall be performed or rendered by the
Contractor in any plants, factories, buildings or
62a
Appendix B
surroundings or under working conditions which
are unsanitary or hazardous or dangerous to the
health and safety of employees engaged in the
performance of the contract. Compliance with the
safety, sanitary and factory laws of the State in
which the work is to be performed shall be prima
facie evidence of compliance with this subsection.
That for any breach or violation of any of the
paragraphs on working conditions and minimum
wages-above, the party responsible therefor shall
be liable to The City for liquidated damages...
in addition, the Commissioner shall have the right
to cancel the contract for any violation of this
section and enter into other public letting,
charging any additional cost to the original
Contractor... .
Any breach or violation of any of the foregoing
shall be deemed a breach or violation of a material
provision of this contract, and ground for
cancellation thereof by the City.
Paragraph 1.06.22. Contractor's Plant. The
Engineer shall have the right to reject or condemn
any plant, apparatus, staging or other appliance
which, in his opinion, is unsafe, improper or
inadequate. Whether or not the Engineer exercises
this right, the Contractor shall not be relieved from
his sole responsibility for the safe, proper and
lawful construction, maintenance and use of such
plan, apparatus, staging or other appliance or for
the adequacy of such plant... .
63a
Appendix B
Paragraph 1.06.23. Rules, Laws, and Requirements.
(A) The Contractor shall, at his own cost, obtain
all necessary permits, give all necessary notices,
pay all legal fees and comply with all Federal,
State and City Building and Sanitary Laws,
ordinances and regulations applicable to this
contract and to the work to be done hereunder. . . .
Superintendence. Prior to commencement of the
contract, the Contractor shall designate, in
writing, Superintendents responsible for the
contract work. A Superintendent must be on each _
job site continuously and will not be changeable
[chargeable] to this contract and shall be
considered as overhead. .. .
The contract between the City and Massand was entered
into on August 26, 1992, and contained the following safety
provisions.
(a) Paragraph 5. The Engineer [Massand] shall
ascertain the standard practices of the City
prior to the execution of any of the work
required by this Agreement. All work under
this agreement shall be performed in
accordance with these standard practices and
the provisions of the contract documents. The
contract documents shall be deemed to
include this agreement, with accompanying
schedule or schedules, if any, the construction
contracts, and any supplements thereto, the
standard Bureau of Highway Operations
moe ent en ct eet acest tana de ene
(b)
(c)
(d)
64a
Appendix B
specifications, the plans of the project, any
addenda to the plans, and project, and all the
provisions required by law to be inserted in
the Agreement and made a part hereof.
Paragraph 6. The Engineer shall, upon
written notice to commence work, take full
charge of the Engineering Inspection of the
project. The Engineer shall thereafter initiate
all necessary orders to the Contractor(s),
personally give field orders when necessary
Section III. Resident Engineering Inspection
Services to be Performed. (A) The Engineer
shall provide continuous resident engineering
inspection services, testing of materials
services, design services, and shop drawing
review services with a staff commensurate
with the level of construction activity until
completion and final acceptance of the
Construction Contract work... .
Section I. General Requirements. (B) The
Engineer specifically agrees that: (a) his
subcontractors, agents or employees shall
possess the experience, knowledge, and
character necessary to qualify them
individually for the particular duties they
perform; (b) he will comply with the
provisions of the Labor Law and all Stz‘e
Laws and Federal and local statutes,
(e)
(f)
(g)
65a
Appendix B
ordinances and regulations that are applicable
to the performance of the Agreement. . . .
Section II. Resident Engineering Inspection
— General. (A) The Engineer shall be the
representative of the Department at the sites
and, subject to review by the Commissioner
or his duly authorized representative, shall
have the power, in the first instance, to inspect
the performance of the work....
Section II. Resident Engineering Inspection
— General. (B) The Engineer agrees that he
will endeavor to safeguard the City against
deficits and deficiencies in the work and that
he will use reasonable Care and reasonable
Powers of observation and detection in
determining that the work conforms to the
Construction Contract documents.
Section II. Resident Engineering Inspection
— General. (C) It is the responsibility of the
Construction Contractor(s), and not the
responsibility of the Engineer, to determine
the “Means and Methods of Construction”,
as defined in Article 2, Paragraph 17 of the
Agreement section of the Standard
Specifications of the Bureau of Highway
Operations, dated June, 1986, as currently
amended. However, if the Engineer
reasonably believes that the means and
methods of construction proposed by the
(h)
(i)
66a
Appendix B
Construction Contractor(s) will constitute or
create a hazard to the work, or to the persons
or property, or will not produce finished work
in accordance with the terms of the
Construction Contract, such means and
methods must be reported to the
Commissioner, or to his duly authorized
representative.
Section III. Resident Engineering Inspection
Services to be Performed. (A) The Engineer
shall provide . . . basic resident engineering
inspection services for all items of work under
the Construction Contract. . . . These services
are to include monitoring of the Construction
Contractor’s activities for conformance with
the contract documents, coordination with
City Agencies and public and private utilities,
and monitoring the condition of the contract
site for conformance with the contract
documents, so as to provide a safe
environment for both workers and the general
public ....
Section IV. Fees and Payments. (G) If the
Construction Contractor performs the work
in such a manner, or at such a number of
simultaneous locations, as to require the
Engineer, under the direction of the
Commissioner, to provide additional
inspectors such that the total inspection
manpower, in person-days, shown on Table,
67a
Appendix B
will be exceeded, then this condition will be
considered a change in the scope of this
contract and a change order will be issued,
subject to the approval of the Director of the
Office of Management and Budget,
increasing the maximum fee. . . .
G) Appendix A. 4.8 Compliance with Law.
Contractor shall render all services under this
Agreement in accordance with applicable
provisions of federal, state and local laws,
rules and regulations as are in effect at the
time such services are rendered.
The City and Massand contract provides that Massand’s
duties “specifically do not include the choice of construction
labor, materials, temporary structures, tools, plants and
construction equipment, or the method and time of their use.”
Massand Agreement, Paragraph 2 at 1.
The Massand contract further provides that “it is the
responsibility of [S&B], and not the responsibility of the
engineer, to determine the ‘Means and Methods of
Construction’, as defined in [the S&B Contract].”” Massand
Agreement, Section II(C) at SR-3.
Under the contract between the City and S&B, S&B was
responsible for the “means and methods of construction,”
defined in the S&B contract as “the labor, materials in
temporary structures, tools, plant and construction
equipment, and the manner and time of their use, necessary
to accomplish the result intended by this contract”.
Agreement, Art. 2.18, at 31.
awe oraamanatacatlacntds
7. > 2 ¥
68a
Appendix B
The contract between the City and S&B also provided
that “the means and methods of construction shall be such
as [S&B] may choose; subject, however, to the engineer’s
right to reject means and methods proposed by the contractor
which will constitute or create a hazard to the work, or to
persons or property .. .” Agreement, Art. 4, at 32, and that
“(t]he engineer’s approval of [S&B’s] means and methods
of construction, or his failure to exercise his right to reject
such means or methods, shall not relieve [S&B] of his
obligation to accomplish the result intended by the contract
...” Agreement, Art. 4, at 31, and that “[dJuring performance
and up to the date of final acceptance, [S&B] must take all
reasonable precautions to protect the persons and property
of others from damage, loss, injury or death resulting from
his or his sub-contractor’s operations under this contract,
except such property as the owners thereof may themselves
be under legal duty to protect.” Agreement, Art. 7, at 34.
The City and S&B’s contract later confirms S&B’s safety
duties under article 7 of the S&B contract, by providing that
“(t]he Contractor shall protect the work, persons and property
in accordance with the provisions of article 7 of the
Agreement ...” Agreement, General Provisions, Section
1.06.28 at 110.
The City and S&B contract further provides that the
“Engineer shall have the right to reject or condemn any plant,
apparatus, staging or other appliance which, in his opinion,
is unsafe, improper or inadequate. Whether or not the
engineer exercises this right, [S&B] shall not be relieved
from his sole responsibility for the safe, proper and lawful
construction, maintenance and use of such plant, apparatus,
staging or other appliance or for the adequacy of such plant.”
69a
Appendix B
Agreement, General Provisions, Section 1.06.22 at 104. The
Massand Contract further provides that Massand “shall be
the representative of [the City] at the sites and, subject to
review by [the City] or [its] duly authorized representative,
shall have the power, in the first instance, to inspect the
performance of the work, as delineated in article 30 [of the
S&B Contract]”. Massand Agreement, Section II(A) at
SR-3.
S&B was required to follow orders given by the City or
Massand. The resident engineer, who was employed by
Massand, worked from an office near the Third Avenue
Bridge and was in charge of field activities. The inspectors
answered to the resident engineer. The resident engineer was
a licensed engineer, but the inspectors, like S&B’s
supervisory personnel, were not licensed engineers and had
no training in construction site safety.
The Massand inspectors were required to be at the job
site whenever S&B was working. The contract required
Massand to provide “continuous” services with a “staff
commensurate with the level of construction activity.”
Massand Agreement, Section I(A) at SR-1.
The Massand contract obligated Massand to “provide a
safe environment for both workers and the general public,”
and the S&B contract, which was incorporated into
Massand’s, stated that Massand had the “power ... to
inspect, supervise and control the performance of the work.”
Massand Agreement, Section III(A) at SR-5; Section II(A)
at SR-3. The two Massand inspectors who worked at the
145" Street Bridge confirmed that their duties included the
70a
Appendix B
supervision of worker safety at the job site. They prepared
written inspection reports daily in the course of their
employment at the 145" Street Bridge. Many of the daily
inspection reports contained notes of safety instructions and
recommendations given by the inspectors to S&B relative
to conditions on the site.
The City retained the right under the contracts to compel
compliance with safety regulations and its Project Engineer
had the authority to, and would, direct that safety problems
be cured. On at least one occasion, the City and Massand
stopped work at the site and would not allow S&B to resume
work until safety violations were cured, as demonstrated in
the following entry in Massand’s daily work log:
Contractor was instructed to clean & clear all
walk-ways & access to the barge & also to correct
the position of the ladder & remove all debris &
other construction material so as to give clear &
hazard-free access while moving with-in &
around the working area. Contractor was given
permission to start working after compliance of
the above instructions.
In general, the City allowed Massand to have a single
inspector at the project at any given time, the exception being
when there was considerable construction activity, which was
not the case on the day of Gravatt’s accident.
The City required both S&B and Massand to comply
with the New York State Labor Law, New York Industrial
Code, and OSHA, but made no effort to determine whether
7la
Appendix B
these companies knew anything about the state and federal
regulations regarding construction site safety. No one
assigned to this project by Massand or S&B had any
knowledge of, or experience or training in, the safety statutes
incorporated in the City’s contracts.
Massand, however, represented to the City in its contract
that its employees “possessed the experience, knowledge,
and character necessary for the particular duties they
perform.” Massand Agreement, Section I(B) at SR-2.
Massand’s contract required Massand to “{monitor] the
condition of the contract site ... so as to provide a safe
environment for both workers and the general public.”
Massand Agreement, Section III(A) at SR-5. Massand has
contended that the thirty-two examples that follow this
provision of the contract concerned activities that were not
involved in the accident at issue and therefore indicate that
Massand had no duty to supervise the condition of the barges
or the use of timber tongs. However, the examples are
introduced by the contract language that “may include, but
shall not be limited to the following,” and do not alter the
contract clause that places on Massand the duty to provide
the workers with a safe place to work. In addition, Massand
was authorized to “reject means and methods... which...
will constitute or create a hazard . . . to persons or property.”
Massand Agreement, Section II(C) at SR-3.
Massand’s contract with the City incorporated the City’s
contract with S&B. See Massand Agreement, Paragraph 5 at
2. When read together with S&B’s contract, Massand had
the duty to stop unsafe means and methods of construction.
\
72a
Appendix B
In the section of the contract that describes the “Powers
of the Resident Engineer, the Engineer, and the
Commissioner,” the resident engineer and the engineer, both
of whom are Massand employees, are given broad powers:
Article 30. The Resident Engineer. The Resident
Engineer shall be the representative of the
engineer at the site, and, subject to review by the
engineer, shall have the power, in the first
instance, to inspect, supervise and control the
performance of the work ...
baad * td
Article 31. The Engineer. The Engineer, in
addition to those matters elsewhere herein
delegated to the Engineer and expressly made
subject to his determination, direction or approval,
shall have the power, subject to review by the
Commissioner:
(1) to determine the amount, kind, quality, and
location of the work to be paid for hereunder;
(2) to determine all questions in relation to the
work, to interpret the Contract Drawings,
Specifications, and Addenda, and to resolve all
patent inconsistencies or ambiguities therein;
(3) to determine how the work of this, contract
shall be coordinated with work of other
contractors engaged simultaneously on this
73a
Appendix B
project, including the power to suspend any part
of the work, but not the whole thereof...
™ * * \ 4
The foregoing enumeration shall not imply any
limitation upon the power of the Engineer, for it
is the intent of this contract that all of the work
shall generally be subject to the determination,
direction and approval, except where the
determination, direction or approval of someone
other than the Engineer is expressly called for
herein.
* * oo
Article 4. Means and Methods of Construction.
Unless otherwise expressly provided in the
Contract Drawings, specifications and Addenda,
the means and methods of construction shall be
such as the Contractor may choose; subject,
however, to the Engineer’s right to reject means
and methods proposed by the Contractor which:
a. will constitute or create a hazard to the work,
or to persons or property... .
The description of the resident engineer’s powers gave
Massand the “power. ». to... supervise and control . . . the
work,” and, as engineer, to “suspend any part of the work”
and reject means and methods of construction that “create a
hazard . . . to persons or property.” Agreement, Art. 4 at 32.
The powers given to Massand are broad because it is the
74a
Appendix B
“intent of this contract” that “all of the work . . . be subject”
to Massand’s direction. In addition to the power to reject
hazardous means and methods of construction, the contract
provided the engineer with other sweeping powers and
responsibilities:
Paragraph 1.06.22. Contractor's Plant. The
Contractor may occupy with his construction plant
any unused location within the area controlled by
the Department, subject to the approval of the
Engineer. If the Contractor desires to use
additional area outside of that controlled by the
Department, he shall arrange for such area at his
own expense. The location of the Contractor’s
stationary and mobile equipment shall be subject
to the Engineer’s approval .. .
The Engineer shall have the right to reject or
condemn any plant, apparatus, staging or other
appliance which, in his opinion, is unsafe,
improper or inadequate. Whether or not the
Engineer exercises this right, the Contractors shall
not be relieved from his sole responsibility for
the safe, proper and lawful construction,
maintenance and use of such plant, apparatus,
staging or other appliance or for the adequacy of
such plant.
All materials shall be properly stacked in
convenient places adjacent to the site, or where
directed, and protected in a satisfactory manner.
All stacking of materials on streets shall be done
75a
Appendix B
in compliance with local laws and ordinances. If
it should become necessary to remove and restack
materials to avoid impeding the progress of any
part of the work, or for any other reason deemed
sufficient by the Engineer, the Contractor shall
remove and restack such materials, as directed,
at his own expense.
Paragraph J. Scaffolding and Ladders. The
Contractor shall furnish and securely set
scaffolding, platforms and ladders required for the
erection and inspection of his work. All such
facilities shall be of good, sound materials,
adequately dimensioned, substantially braced and
tied, and shall be approved by the Engineer.
The contract placed Massand in control of the job site,
especially over safety matters. The City made safety a
material term of the agreement and gave Massand all powers
necessary to enforce safety standards.
Article 36. Labor Law Requirements. 3(b). [N]o
part of the work, labor or services shall be
performed or rendered by the Contractor in any
plants, factories, buildings or surroundings or
under working conditions which are unsanitary
or hazardous or dangerous to the health and safety
of employees engaged in the performance of the
contract.
76a
Appendix B
3(c). Any breach or violation of any of the
foregoing shall be deemed a breach or violation
of a material provision of this contract, and ground
for cancellation thereof by the City.
Massand has suggested that the term “Engineer” in
S&B’s contract refers to the City, while that same word in
Massand’s contract refers to Massand. However, the
definition section of S&B’s contract provides:
13. “Engineer” shall means the person so
designated ir writing by the Commissioner to act
as such in relation to this contract, including a
private engineer as the case may be.
The Commissioner (defined as the Commissioner of the
Department of Transportation or his representative)
designated Massand as the “Engineer” in writing when the
City signed Massand’s contract (after signing S&B’s).
THIS AGREEMENT... . by and between the City
of New York, hereinafter called “The City,” acting
by and through the Commissioner of
Transportation of the City of New York,
~ hereinafter called “The Commissioner,” and
Nanik Massand, P.E. ... herein called “The
Engineer”...
Massand is the “Engineer” in both contracts. This is
confirmed by another definition in S&B’s contract.
21. “Resident Engineer” shall means the
representative of the Engineer duly designated by
77a
Appendix B
him in writing to be his representative at the site
of the work.
Like its contract with Massand, the City’s contract with
S&B required S&B to comply with federal, state, and local
safety codes. S&B, like Massand, did not know these laws
and did not attempt to become familiar with them.
The Performance of the Contracts
Under the contracts as set forth above, S&B was solely
responsible for the means and methods of the performing
the work on the Project. Massand prepared the plans for the
construction of the fender system for both the Third Avenue
and 145" Street bridges. In addition to engineering and design
services, Massand also performed non-engineering services,
including daily on-site inspection of construction activities
and safety supervision.
Massand hired a resident engineer to supervise the
contract and also hired inspectors to work at each job site to
2. Section II, entitled Resident Engineering Inspection —
General, provides in relevant part:
C. It is the responsibility of [S&B] and not the
responsibility of the engineer, to determine the “Means
and Methods of Construction” .. .. However, if the
Engineer reasonably believes that the means and
methods of construction by the Construction
Contractor(s) will constitute or create a hazard to the
work, or to the persons or property . . . such means and
methods must be reported to the Commissioner or to
his duly authorized representative.
78a
Appendix B
supervise and to make sure that the construction work was
performed according to the plans and performed safely.
In order to perform its contract and complete the Project,
S&B removed the old fender from around the center
stanchion of each bridge, excavated the river bottom as
needed, and installed the new fender system on each bridge.
S&B’s contract with the City was on a time and material
basis. To accomplish the fender replacement S&B used at
least three barges: a crane barge and two material barges.
Sometimes S&B had a fourth barge at the job site. The
number of barges employed at the job site was S&B’s
decision.
The crane barge provided working space for the crane,
gear, and tools that were needed to pull out the old pilings
and timbers, install the new pilings and timbers, and excavate
as needed. It provided space for materials and a shanty in
which Massand inspectors and engineers occupied a desk.
The crane also loaded and unloaded the material barges.
S&B rotated barges using one barge to carry old material
away from the job site (the debris barge) and another to carry
new material to the job site (the material barge). S&B on
occasion placed debris on the material barge before it was
emptied of new material. Although S&B usually kept the
new material and debris on separate barges, it was standard
procedure to dump debris on top of and around new material
on the material barge. The old pilings constituted much of
the debris. The material and debris barges traveled to and
from Port Newark, New Jersey, on a regular basis and were
moved from location to location at the job site. The crane
79a
Appendix B
barge and the material barges were necessary and integral to
the Project. When removing stone from the river, S&B
dedicated a barge to the sole purpose of removing debris.
No evidence was presented that would have precluded S&B
from doing the same with respect to the debris resulting from
the demolition of the old fender system.
The proper way to move pilings to and from the barges
is to use timber tongs which resemble outsized ice tongs
which are attached to a chain hung from the headache ball
of the crane to lift the pile up a foot or so, lower it onto a
“sleeper,” remove the tongs, wrap a chain, choker, or sling
around the pile, and then raise the pile with the crane. A
sleeper is a block, usually a piece of wood, used as a wedge
or spacer to elevate a load slightly for the purpose of creating
room beneath the load to allow a sling or choker to pass
under it.
S&B had a Safety Director, Eugene Reardon (“Reardon”),
who reported to the company’s safety committee and drafted
S&B’s safety handbook and safety manual and organized
the weekly distribution of safety memos to the workers at
the job site. Reardon had no training in construction site
safety.
Robert Branston (“Branston”) was the S&B project
superintendent for the fender system repair, and the senior-
most S&B employee at the job site in charge of safety. He
had no training in construction site safety. |
Gerhard Holzheuer (“Holzheuer”) was the S&B foreman
for the Project and Gravatt’s immediate superior. He also
|
i
t
/
|
80a
Appendix B
lacked training in the New York Labor Law, New York
Industrial Code, and OSHA. His safety training was limited
to the information contained in weekly safety memos that
were sent to him by Reardon to be read to the workers every
payday.
Reardon, Branston, and Holzheuer had never seen the
contract with the City and did not know what safety codes
applied to the job. Branston testified that he “went through”
the contract, but he also testified that he had no training in
construction site safety, including the New York Labor Law,
New York Industrial Code, and OSHA. Branston did not
attend the weekly safety meetings, although required to do
so, and did not read S&B’s safety handbook until sometime
after Gravatt’s injury. S&B never asked Reardon to review
the contract from a safety director’s point of view.
~~ The City knew or should have known that its contractors
were not familiar with the safety provisions of the contract.
The Project Engineer for the Bridge Component
Rehabilitation Section of the Department of the
Transportation of the City, Jose Cubelo (“Cubelo”), advised
S&B and Massand that S&B was working in an unsafe
manner, and also advised Henry Smith, Acting Director of
the Bridge Component Rehabilitation Section (“Smith”). The
City took no action to enforce the S&B or Massand contracts.
The City had no safety program in place and made no
effort to ensure that safety was observed at the job site.
Cubelo told Branston of S&B and Forde Coppin, the
resident engineer of Massand (“Coppin”), that the working
8la
Appendix B
conditions at the job site probably violated OSHA.
Branston’s response was that, if the City wants the job done,
this is how they do it. Other than reporting to Smith, Cubelo
did nothing when given this response.
The City was advised on September 7 and September 9,
1994, that too many men were getting hurt on the job. S&B’s
safety committee also believed that the 145" Street Bridge
was the site of numerous personnel accidents.
On August 12, 1994, a worker was hurt on the job. At a
progress meeting held on September 7, 1994, Coppin advised
all in attendance, which included management personnel
from all three defendants, i.e., Massand’s project engineer
Ayman Baki (“Baki”), the head of the City’s Bridge
Rehabilitation program John Hendrickson (“Hendrickson”),
and S&B’s superintendent Branston, that too many men were
getting hurt on the job.
Nine days after the September 7” progress meeting,
another worker, Gunnar Berg, fell on the fender system.
Work procedures were not altered, and no safety practices
were implemented at the job site.
On January 31, 1996, the day of Gravatt’s accident, Jodh
Singh, the Massand inspector who was on duty at the job
site (“Singh”) left at lunch time without obtaining a
replacement. He did not return until about 3:00 p.m. There
were twelve S&B workers at the Project.
82a
Appendix B
The Accident
Shortly after lunch on January 31, 1996, foreman
Holzheuer instructed Gravatt and his co-worker, Thomas
Liming (“Liming”), to go onto a barge where S&B had mixed
new material and demolition debris, to move several old piles
that were obstructing access to two drafts of new lumber
still on the barge. The drafts of lumber were the only new
material remaining on the barge. Four lifts of new material
had been completed previously that day. The rest of the barge
was full of debris, and it was towed away the following day.
Gravatt’s and Liming’s normal job duties did not include
moving material on barges. It was another employee’s job
at the site to move this kind of debris, a “deck man” named
Richard Sada.
The old piles that were obstructing access to the new
drafts of lumber had been dumped on top of or near the new
material by S&B’s crane operator and deck man but the
decision to mix debris with new material was made by
Holzheuer. The stowage of the old piles resembled a giant
game of “pick up sticks.” Holzheuer instructed Gravatt and
Liming to use the timber tongs and swing the pile over.
Jack Bombace, the S&B crane operator (““Bombace’”’),
was in the crane on the crane barge. The crane barge was
secured to the fender, and the material/debris barge on which
Liming and Gravatt were working was tied to the crane barge.
Bombace could not see Gravatt who was in the pile of debris
about 60 or 70 feet away from Bombace. Gravatt could not
see Bombace and did not give any signals to the crane
operator. Gravatt climbed on the debris and reached to attach
83a
Appendix B
the timber tongs on a twelve foot piling at a location about
one-third the length of the piling. Bombace received one
signal which he construed as a signal to swing the pile out
of the debris heap, and Liming gave that signal. Bombace
believed that Gravatt was on the other side of the draft of
new lumber, and not in the debris heap. Liming did not use
the hand signals specified in S&B’s safety handbook. The
signal that Liming would have used to direct Bombace to
stop lifting was similar to the signal in the safety handbook
for hoisting.
The pile was raised about ten feet in the air. As the pile
was hoisted, the end of it became stuck in some of the debris
on the barge. Gravatt was on the top of the draft of new
lumber, about eight feet above the deck and turning away as
the piling rose. Bombace was about to swing the pile away
from the debris heap when the pile pulled through the tongs.
Gravatt heard Liming yell “look out” and looked over his
shoulder and saw the pile falling. The piling fell and hit
another piling which bounded up and struck Gravatt in the
back of the legs, knocking him from the top of the draft of
lumber some 25 feet into the Harlem River.
The workers rescued Gravatt from the near freezing
waters of the Harlem River, took him into the shanty, stripped
him of his clothes, and placed him next to the heat.
Gravatt waited about half an hour for the ambulance to
arrive. He complained of pain from his knees to his ankles.
When the ambulance finally arrived, the medics refused to
go down to the shanty to treat him. He was lifted in the crane
bucket about 40 feet to the ambulance waiting on the bridge
84a
Appendix B
roadway. Gravatt was taken to Lincoln Hospital where he
was advised that he suffered injuries to both his ankles and
right knee.
The Unsafe Practices
There is an industry-wide practice to use timber tongs
only when the material to be lifted is picked up no more
than 2 to 3 feet, enough to allow the worker to put a sleeper
underneath the material and then rehook the material using
a cable sling or chain sling.
Although Massand’s inspector, the City’s project
manager, and S&B’s safety director, superintendent, and
foreman all testified that it was unsafe to raise a pile with
timber tongs, Bombace, the crane operator and a credible
witness, said that this was a common practice at S&B’s work
sites. In his 30 years as a crane operator, Bombace has seen
timber tongs used in the fashion employed here only at S&B
job sites.
The manner in which the debris was loaded on top of
and near the good material was‘in direct violation of S&B’s
own safety policy, as contained in its safety handbook and
its safety memos. S&B’s safety handbook, which Reardon
wrote, required that stored materials be readily accessible.
The handbook states that materials are to be properly stored
so as to provide clear walkways for access to material.
S&B’s safety handbook and safety memos required the
company to observe good housekeeping practices at job sites.
The mixing of debris and new material in a manner that
85a
Appendix B
obstructed access to the new material was a violation of good
housekeeping. Reardon testified that the storage of new
material on a debris barge would be a violation of good
housekeeping.
The manner in which the debris piles were stowed on
top of and near the good material created a foreseeable safety
hazard. S&B’s safety handbook and safety memos emphasize
the connection between poor job site housekeeping and
personal injuries. According to one memo, the “benefits [of
good housekeeping] include accident reduction. . . .” Another
memo states that proper material storage reduces “material
handling accidents.” Proper material handling, states another
memo, “is a controlling factor in survival for yourself and
co-workers_as well.” The safety handbook sums it up as
follows: “Good housekeeping is the basis for a safe work
environment... .”
Massand was contractually obligated to provide the
workers with a safe work environment and, therefore, good
housekeeping was one of Massand’s duties. The testimony
of Massand’s inspectors and the daily records they
maintained indicate that they frequently gave orders relating
to good housekeeping at the 145" Street Bridge job site with
respect to the condition of walkways in inclement weather.
S&B conducted weekly safety meetings at its job sites.
These meetings were usually conducted during the
employees’ lunch hour on payday. S&B sent safety meeting
memos to the job site with paychecks to be distributed by
Holzheuer and they were ordinarily read to the men by the
shop steward during lunch hour on payday. It was S&B’s
86a
Appendix B
practice to have each employee in attendance at the meetings
sign the safety memo to show that the employee was present
when the memo was read aloud. The Massand inspector did
not attend the safety meetings, and Massand did not require
him to do so. Bombace, the crane operator on the job site,
sometimes attended the safety meetings, but never signed
the safety memos because S&B’s superintendent, Branston,
told him, with respect to the safety memos: “[Y]ou realize
we can’t work this way, it would slow things down too much.
So nobody ever said anything, but I told him no, I refuse to
sign it. You can’t tell me to sign something saying I’m going
to work one way and then tell me to work a different way.
So I refused to sign it.” (Bombace Tr. Trans. at 173).
The safety meeting memos supplied to the employees
were provided to S&B by a subscription service. These
memos were designed for the construction industry, but not
for marine construction. None of the memos were ever altered
or edited by anyone at S&B. The supervisory personnel,
including Reardon and Holzheuer, never considered amending
the memos. None of the memos discussed barges, working
conditions on barges, or safety precautions relating to barges.
A safety memo about timber tongs was received only
. after Gravatt’s injury. In the several hundred safety memos
produced by S&B there was no prior reference whatsoever
to the use of timber tongs. The safety meetings and memos
failed to satisfy the safety requirements of the contracts
between the City and S&B and Massand.
Matthew Quesada, a dock builder who worked for S&B,
was the shop steward for most of the time he worked for
87a
Appendix B
S&B and complained about safety to S&B and Massand. He
believed that S&B was an unsafe company. Quesada was
laid off in late 1995.
Because S&B had operational control of the site and the
means by which the work was performed, it is primarily liable
for Gravatt’s damages as between S&B and Massand.
Massand’s negligence was primarily supervisory.
The Injuries
Gravatt was admitted to Lincoln Medical Center on
January 31, 1996, at 3:15 p.m., about two hours after the
accident. The records of Lincoln Medical Center indicate
that Gravatt experienced pain to both lower extremities upon
flexion and extension. The Trauma Sheet indicates that
Gravatt was experiencing pain in both knees and both ankles.
According to x-rays taken by Lincoln Medical Center
of Gravatt’s right tibia, left tibia, and both ankles, Gravatt
suffered fractures of his right leg below the knee and the
right ankle. Lincoln Medical Center’s records also indicate
that Gravatt had tenderness in and about the left ankle with
edema.
The relevant bones in the left ankle are the tibia, which
is the large bone in the leg and the fibula, which is the small
bone in the leg; the talus, which is the ankle bone at the top
of the foot and the calcaneus, which is the heel bone. The
fibula and the tibia form an arch around the talus called the
“mortise.” The fibula is on the outside (lateral) side of the
ankle and where it frames the talus is called the lateral
88a
Appendix B
malleolus. On the inner part of the ankle is the medial
malleolus which is formed by the end of the tibial bone. The
calcaneus is the heel and the connection between the
calcaneus and the talus is called the sub-talor joint.
The day after the accident, February 1, 1996, Gravatt
saw Dr. Frederick DePaola, the orthopedist usually consulted
by the Gravatt family. Gravatt was in a wheelchair,
complaining of severe pain in the left ankle, and had limited
motion in the left ankle due to swelling and pain.
On February 8, 1996, the Jersey Shore Medical Center
conducted a bone scan which showed areas of increased
uptake of technetium in the lateral tibial condyle of the right
knee and in the left talus. Gravatt had possible fractures in
and about the areas of increased uptake.
On February 20, 1996, Dr. Karmel, a radiologist,
conducted a CT scan of Gravatt’s right knee, which indicated
a minimally displaced proximal fibula fracture that appeared
to be focally comminuted and a CT scan of Gravatt’s ankles,
which indicated that there was a lucent line through the
posterior lip of the distal tibia. In addition, there was soft
tissue swelling present about the left distal tibia and a slight
irregularity of the anterior margin of the distal tibia that may
have been a small avulsion fracture.
On April 11, 1996, Gravatt returned to Dr. DePaola for
the seventh time in two and a half months, still complaining
of limited motion and swelling in the left ankle. Dr. DePaola
recommended an MRI of the left ankle and talus.
89a
Appendix B
On April 16, 1996, the New Jersey Diagnostic Imaging
& Therapy performed an MRI of Gravatt’s left ankle, which
indicated a healing tear of the anterior talofibular ligament,
an irregularity of the talar dome, and a possible tear of the
posterior tibiotalar ligament.
On May 9, 1996, Dr. DePaola noted that Gravatt was
doing well, except for the left ankle, and that he experienced
diffused soreness and swelling in the left ankle when he tried
to walk.
On May 22, 1996, Gravatt was sent to Dr. Christopher
Johnson for a second opinion. Dr. Johnson found that:
(1) the left ankle mortise was well-reduced; (2) there were
irregularities involving both the medial and lateral malleoli;
and (3) the talus was reduced. Dr. Johnson believed that,
after a crush and/or soft tissue injury involving the ankle,
more clinical improvement would have been expected. He
believed that there were multiple etiologies to consider,
including intra- and extra-articular sources within the joint
and outside the joint, as the cause of the problems. Dr.
Johnson’s diagnosis included a fracture involving the left
ankle, peroneal tendinitis, and arthrofibrosis.
On July 11, 1996, Dr. DePaola referred Gravatt to Dr.
Walter Pedowitz, an ankle and foot specialist, because Dr.
DePaola felt that Gravatt had a complicated foot problem.
Dr. Pedowitz began specializing in foot and ankle
surgery after he concluded his residency in 1976. He is the
Associate Editor of Foot and Ankle International (the official
journal of the American Orthopaedic Foot and Ankle
90a
Appendix B
Society), an author of 11 articles on foot and ankle surgery
and other topics relating to the foot and has been lecturing
in the U.S. and abroad on foot and ankle surgery. He teaches
foot and ankle surgery at the College of Physicians and
Surgeons, Columbia University, The College of Medicine
and Dentistry in New Jersey, and Seton Hall Medical School.
Dr. Pedowitz is a sub-specialist in foot and ankle surgery.
In July 1996, after evaluating Gravatt orthopedically and
- reviewing several diagnostic tests, Dr. Pedowitz concluded
that he had a problem in the area of his foot called the sinus
tarsi, the hollow or canal formed by the groove between the
heel bone and ankle bone. Further, Dr. Pedowitz concluded
that Gravatt had problems with a tendon on the inner side of
his foot as well as having pain in the left ankle.
Dr. Pedowitz injected the area of the ankle and foot that
was painful. The injection relieved the pain, indicating that
there was some instability or inflammation in the subtalar
joint, which is the joint between the talus and the calcaneus.
Dr. Pedowitz recommended a course of treatment after
Gravatt’s first visit: (1) if the ankle improved with the
injections, the treatment would end there; (2) if the injections
did not work, he would remove the inflamed tissue in the
sinus tarsi area, and stabilize the lateral ankle; and last,
(3) if the removal of tissue and stabilization did not work,
he would fuse the subtalar joint and make that joint solid to
prevent pain.
On August 30, 1996, Rahway Hospital Imaging took an
x-ray of Gravatt’s left foot which indicated degenerative
9la
Appendix B
changes at the subtalar joint, talonavicular joint, and ankle
itself caused by traumatic injury.
On September 6, 1996, Dr. Pedowitz performed the first
of three operations on Gravatt at Rahway Hospital: a sinus
tarsi clean out with peroneal brevis tenodesis and posterior
tibial tenolysis. Gravatt was placed in a cast for nine (9)
weeks following the first operation.
On March 18, 1997, about six (6) months after the first
operation, when it became clear that Gravatt was not getting
the result Dr. Pedowitz had anticipated, Dr. Pedowitz
performed the second operation, a subtalar arthrodesis,
meaning a fusion of the talus, the ankle bone, and the
calcaneus, the heel bone. At this time, a bone graft was taken
from the upper portion of the tibia, or leg bone. Gravatt was
in a non-weight bearing cast for 6 weeks following the second
surgery, followed by a weight bearing cast for another
6 weeks. After the second operation, the subtalar pain was
completely gone.
On July 23, 1997, four months after the fusion surgery,
Gravatt started to complain of pain and discomfort in the
posterior aspect of the left ankle.
Dr. Pedowitz felt that the pain was related to a loose
bone in the back of the ankle called the os trigonum which
Gravatt had had since birth and had become a secondary
center of calcification in the talus.
- On February 9, 1998, Dr. Pedowitz performed a third
surgery on Gravatt to remove the os trigonum bone that
92a
Appendix B
became symptomatic as a result of the injuries suffered on
January 31, 1996. Gravatt was again placed in a cast for
nearly a month following the third surgery.
At that time, Dr. Kline, Dr. Pedowitz’s partner,
performed arthroscopic surgery on Gravatt’s left knee to
repair a torn medial meniscus, which was causally connected
to the left ankle injury.
Since January 31, 1996, Mr. Gravatt’s main complaint
has been pain in and about the left ankle in the area called
the syndesmosis, a group of tight ligaments that hold the
tibia and fibula together.
Dr. Pedowitz has planned one or two more surgeries for
Gravatt, which will include a tenolysis of the syndesmosis;
and if that does not relieve Gravatt’s pain, then a fusion of
the fibula and tibia above the ankle joint may be required in
order to clean out or fuse the ankle joint itself. Dr. Pedowitz
expects to achieve his treatment and surgical goals after
Gravatt’s anticipated future operation.
The cost of the tenolysis of the syndesmosis will be about
$12,000. The cost of the tibia and fibula fusion will be about
$25,000. Any future operations will also require physical
therapy afterwards, and additional cost.
Dr. Pedowitz’ diagnosis of the problem in the sub-talor
joint was that Gravatt had sub-talor arthritis/instability and
because of the sub-talor arthritis, he fused the calcaneus to
the talus. Some arthritis found in the sub-talor joint pre-
existed the injury, as a result of a 20-year old left ankle
93a
Appendix B
fracture at the lateral malleolus suffered by Gravatt while
playing basketball.
Dr. Pedowitz concluded that Gravatt’s injuries were
caused by a crush injury to the foot resulting in an instability
of the sub-talor joint, although there is nothing on the
diagnostic films taken of Gravatt’s left-ankle that showed a
crush injury. Since he had seen Gravatt well after the injury,
he relied upon the facts of the accident as related to him to
establish the effect of the injury.
On January 7, 1997, Dr. Stephen Allan examined Gravatt
on behalf of the NYC Carpenter Benefit Fund. Dr. Allan’s
report indicates that: (1) the left hindfoot and ankle has
marked loss of motion; (2) there is subtalar pain; and,
(3) there is peroneal spasm. Dr. Allan suggested that a
subtalar arthrodesis would be appropriate. The defendants
did not call Dr. Allan to testify at trial.
On February 5, 1997, Dr. Alexander Fasulo examined
Gravatt on behalf of Lamorte Burns & Co., Inc., S&B’s agent.
Dr. Fasulo’s report indicates that Gravatt complained of
“significant pain in the left ankle and foot, where gross
restriction of range of motion is present, inability to walk
without external support, nocturnal distress to the left ankle
and foot, [and] continuous need for pain medication.” Dr.
Fasulo also wrote that the medical records he reviewed were
“replete with extensive and intensive follow-up notes
describing treatment by several physicians, completely
corroborating Mr. Gravatt’s subjective history.” Dr. Fasulo
noted that Gravatt used a cane and was limping severely,
and that Gravatt’s complaints were related to his left foot
94a
Appendix B
and ankle. Dr. Fasulo measured Mr. Gravatt’s calves and
noted that the circumference of the left calf measured one-
half inch less than the right. Dr. Fasulo reviewed the x-rays
and noted significant amounts of articular and periarticular
hypertrophic degenerative changes about the left ankle, the
subtalar and the talonavicular joints. Dr. Fasulo concluded
that Gravatt was injured “quite severely at the time of the
accident in question, including musculoskeletal and articular
injuries.” Dr. Fasulo further reported to S&B that Gravatt
had reached maximum benefit from conservative treatments;
that the left extremity sustained severe soft tissue injuries
which became diagnosable only after the acute edema
subsided, and that the accident caused articular cartilage and
synovial degenerative changes. Lastly, Dr. Fasulo agreed
with Dr. Pedowitz’s recommendation for an additional
surgical procedure to be performed on Gravatt’s left ankle,
stating, “I am in full agreement about the need of this final
procedure to relieve mobility pain and stabilize the arthrotic
ankle, sub-talar and Talo-navicular joints.” Dr. Fasulo was
not called by defendants.
On January 26, 1998, Dr. Henry Magliato examined
Gravatt on behalf of S&B. Dr. Magliato reported that Gravatt
had suffered a number of injuries as a result of the accident
of January 31, 1996, the most severe of which focused on
the left ankle, and that Gravatt was still impaired for all of
the duties required of a dock builder because the occupation
requires full use of both lower extremities.
The only medical testimony contrary to that of Dr.
Pedowitz, with respect to the injury and causation, was that
of Dr. Maurice Carter, an orthopedic surgeon called by S&B.
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Appendix B
Dr. Carter is not a foot and ankle specialist and lacks Dr.
Pedowitz’s credentials. His testimony denying a causal
connection was unpersuasive.
The injuries and resulting operations will cause:
(1) increased aging at a more rapid rate of the surface of the
ankle joint and the joints in the foot; (2) arthritis; (3) post-
traumatic degenerative changes; and, (4) problems with the
knees, hips, and lower back.
Gravatt walks with a limp, which is permanent. The limp
places stress on all the adjacent joints in the lower extremities
on both sides, as well as the lower back. Gravatt will continue
to experience pain at rest, pain with use, and weather ache
in the foot, the ankle, the knee, and low back on a permanent
basis.
Gravatt’s injuries to his right and left knees and ankles,
all of the treatment he received to his ankles and knees since
the day of the accident, and the future difficulties Dr.
Pedowitz described as set forth above were directly and
proximately caused by the accident.
Economic Loss to Date
As a marine carpenter, Gravatt was a beneficiary of a
collective bargaining agreement which, as of July 1, 1997,
was paying $28.68 per hour. Although there is evidence of
the rate of prior wages before 1997, there is no evidence of
what the wages would have been in 1998. Since it has been
three years from the date of injury, it can be inferred that
July 1, 1997 being the midpoint of the three years, the rate
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in effect as of that date would average out the rates before
that date and after that date. Accordingly, for purposes of
calculating past lost wages, $28.68 per hour is an appropriate
rate. Using that rate applied to 1431 hours per year, Gravatt’s
past wage loss amounts of $41,041.08 per year. He incurred
approximately $7,302.52 per year in work expenses. He
further incurred approximately $10,670.68 in taxes.
Under his collective bargaining agreement, Gravatt was
also entitled to fringe benefits, including payments for
welfare, pension annuity and vacation. He is now the
beneficiary of Social Security benefits. His total fringe
benefits were in the amount of $21.78 per hour as of July 1,
1997, which can be used as the average for the last three
years of which $2.19 was Social Security contributions.
Accordingly, the total annual gross loss in salary and fringe
benefits was $69,346.26 per year (1,431 x $ 48.46). In
addition, there are past medical expenses of $46,425.71 as
yet unpaid.
Gravatt’s life expectancy was 37.6 years from the date
of the injury. His work life expectancy at the time of the
accident was 22.49 years, which was reduced to 11.04 years
after the accident. His annual salary plus fringe benefits is
set forth above. Gravatt seeks to return to work. He did not
graduate from high school and has a learning disability, and
he has not sought to obtain a General Equivalency Diploma.
In New Jersey, there are approximately 7,800 jobs that
Gravatt now qualifies for with his disabilities. These jobs
represent only 1/3 of 1% of all of the jobs available in New
Jersey. Gravatt should be able to obtain a job earning a yearly
salary (before taxes) of $20,000 with work expenses of
$2,000.
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Appendix B
A discount of 2% is appropriate. See Doca v. Marina
Mercante Nicaraguense S.A., 634 F.2d 30, 40 (2d Cir. 1980);
Roselli v. Hellenic Lines Ltd., 524 F. Supp. 2, 4 (S.D.N.Y.
1980). In the absence of credible contrary evidence, a district
court may use a 2% rate as the discount rate in personal injury
cases. See McCrann v. United States Lines, Inc., 803 F.2d
771, 775 (2d Cir. 1986).
In addition, Gravatt will incur the likely cost of future
vocational expenses of $34,249, and future surgical expense
of $37,000.
Although Gravatt seeks to recover the loss of household
services, the proof has failed to establish that he cannot
perform such services.
Contributory Negligence
Although Gravatt knew and should have known that the
work he was performing with the timber tongs was being
done in a hazardous fashion, he was directed by Holzheuer
to use the timber tongs and to perform the task in the manner
which resulted in his injury.
Pain and Suffering
On the day of the accident Gravatt experienced
excruciating pain. All the dock builders who saw Gravatt
after the accident testified that he was in great pain. Bombace
said that Gravatt was “oblivious” with pain. (Bombace Tr.
Trans. at 183). In addition to the pain caused by having his
ankles crushed by the falling pile, Gravatt experienced pain,
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Appendix B
anxiety, and the fear of drowning or freezing to death when
he plunged into the Harlem River wearing his clothes and
heavy tool belt with currents threatening to sweep him down
river.
After the accident, he was confined to a wheel chair for
5-6 weeks and wore casts for 6-8 weeks. After the casts were
removed, he walked on crutches or with a cane for about six
(6) weeks and underwent painful physical therapy three (3)
times a week for at least four (4) weeks.
In September 1996, Dr. Pedowitz operated on Gravatt’s
left foot. After the operation, he was experiencing searing
pain. He wore a cast for about nine (9) weeks after the
operation and then went to physical therapy again for another
twelve (12) weeks. The operation did not resolve his problem
and he continued to experience pain, and walked with
crutches or a cane.
He went for a second operation in February 1997, and
again experienced great pain after the operation. He was
bedridden for a week, and he wore casts again for another
twelve (12) to fifteen (15) weeks after the second operation,
and went for physical therapy three (3) times a week after
the cast was removed.
The second operation did not relieve his pain and he
had a third operation in March 1998. Again, he experienced
pain after the operation, wore casts for eight (8) weeks, and
then underwent physical therapy for a month.
Dr. Pedowitz testified that Gravatt will need one,
possibly two more operations.
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Appendix B
Gravatt was an outdoorsman. He worked outdoors and
spent much of his free time hunting and fishing. His hunting
and fishing is now limited as a result of his limp and his
difficulty walking. He shared his enthusiasm for outdoor
recreation with his family, particularly his teenage son. He
also played baseball and raced miniature sports cars with
his son, and played soccer with his teenage daughter. These
activities are no longer possible for him because of his
disability. Gravatt’s wife described him as a good husband
and good father who has become short-tempered and
impatient with his family, and even withdrawn, from his wife
and children since the accident.
Gravatt’s past pain and suffering would be fairly
compensated by an award of $300,000. He will also endure
pain and suffering in the future for the next twenty-five years
for which he should be compensated in the amount of
$200,000.
Damages of Mrs. Gravatt
Mrs. Gravatt is entitled to recover damages for loss of
consortium for the past as well as the future. Loss of
consortium includes loss of services, love and affection,
companionship, society, sexual relations, disposition and
temperament in the social life and comfort and happiness of
members of the family. Millington v. Southeastern Elevator
Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897
(1968).
Immediately after the accident, Gravatt was in a wheel
chair for approximate 5-6 weeks. During this time, Mrs.
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Appendix B
Gravatt had to care for her husband’s personal needs. After
the accident and during this treatment, his children also had
to “wait on him.” (D. Gravatt Tr. Trans. at 495). While
Gravatt was confined to a wheel chair after the accident, Mrs.
Gravatt was not able to sleep with her husband. Gravatt had
to sleep on the first story of the house in his son’s bed, while
Mrs. Gravatt slept on the couch in their first floor living
room, so that Gravatt could get her attention if he needed
her help.
Mrs. Gravatt had a good relationship with her husband
before the accident. They have been married for seventeen
years. After the accident, when it became apparent that
Gravatt would not be able to go back to dock building, he
became withdrawn from his wife and children. Both Gravatt
and Mrs. Gravatt are seriously depressed.
Mrs. Gravatt began to drink heavily and sought
counseling for depression. She suffers from the stress of
acting as mediator between her children and husband, and
working full time. She has been prescribed medication and
has lost weight, and app
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