Petition for Writ of Certiorari — Morehead v. Atkinson-Kiewit, J. V.
Supreme Court brief1997
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\ FILED
no 61084 JAN 7 1997
OFFICE OF [HE CLERK
In The
Supreme Court of the United States
~>
October Term, 1996
MARK MOREHEAD,
Petitioner,
VS.
ATKINSON-KIEWIT, J.V. AND WOODS HOLE TOWING
COMPANY, INC.,
Respondents.
ROCCO P. DIGIOVANNI, JR.,
Petitioner,
VS.
TRAYLOR BROTHERS, INC.,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
DAVID B. KAPLAN
Counsel of Record
THOMAS M. BOND
THE KAPLAN/BOND GROUP
Attorneys for Petitioners
Boston Fish Pier
West Building, Suite 304
P.O. Box 1404
Boston, Massachusetts 02210
(617) 261-0080
70304
ervices, inc.
oS
utz
(800) 3 APPEAL + (800) 5 APPEAL » (800) BRIEF 21 M Aagslat
i
QUESTIONS PRESENTED FOR REVIEW
1. Where one entity acts in a dual capacity (as maritime
construction company and vessel operator) and uses the same
group of employees to perform maritime construction duties and
vessel operation duties, under what circumstances will it be held
liable for its negligence under 33 U.S.C. § 905(b)?
2. What is the definition of “vessel in navigation” for
purposes of the Jones Act, 46 U.S.C. § 688?
ii
LIST OF PARTIES
Rocco DiGiovanni, Jr.
Plaintiff-Petitioner
Mark Morehead
Plaintiff-Petitioner
Traylor Brothers, Inc.
Defendant-Respondent
Atkinson-Kiewit, J.V.
Defendant-Respondent
iii
TABLE OF CONTENTS
Page
Questions Presented for Review ................... i
List of Parties ... Steen teen nett eee e eee n eee eees ii
ee kperna Conk se ners scenes eae whe ili
ck cece kc Geeta eeesbacddeenees Vv
CC cise t keds th aeeaceddbeceveensenr 1
Statement Of Jurisdiction .........ccsetecsescscees l
i aa nae ackks bes ses 06a e 50s 02 I
EE, cane waccnserebevedeneceesss 3
A. Morehead v. Atkinson-Kiewit .............. 3
B. DiGiovanni v. Traylor Bros. Inc. ............ 4
1. Physical Description Of The Barges ..... 5
2. Movement Of The Barges ............. 6
3. The Petitioner's Job Duties ............ 7
Reasons for Granting the Writ .................0.- 8
I. The First Circuit Court Of Appeals Has Decided
An Important Question Of Federal Law That Has
Not Been, But Should Be, Decided By This
TT aah des cic ah cba ek iveusaess 8
I.
IV.
iv
Contents
The Decisions Conflict With The Statutory
Language Of 33 U.S.C. § 905(b). ....--++++>
A.
History Of The Longshore And Harbor
Workers’ Compensation Act (LHWCA)
ere rs er eer tn ee ee a ee Ee A hy
The First Circuit’s Decisions Violate
Congress’ Mandate That Similarly Situated
Workers Should Have The Same Rights,
Regardless Of The Employment
Arrangement. .......-2s+eeeeeeeeeees
The Decisions Conflict With Relevant Decisions
C0 Tila COME. nics cn cdncesswesnensuduasess
The Decisions Create A Split Between The
see ccccews eee ennae savas eae *¥
The First Circuit’s Definition Of The Term “Vessel
In Navigation” To Allow Recovery For Jones Act
Negligence Conflicts With Definitions Established
By Other Circuits And By This Court. .......
A.
The Conflict Between The Circuits On The
Definition Of “Vessel In Navigation” Under
The Jones Act. ...cccsccccccsccccrcess
The Conflict Between The Supreme Court
And The First Circuit On The Definition Of
“Vessel In Navigation” Under The Jones Act.
sae 6 ee a Se OOS 8 OS OE Oe oe eee eee
Page
10
11
13
14
18
20
21
23
v
Contents
Page
COG bc Fk ks 2s ee ee 25
TABLE OF CITATIONS
Cases Cited:
Castorina v. Lykes Bros., 758 F.2d 1025 (5th Cir. 1985)
ee TR eee PET Pee Perma ere ee ENT Ty 19
Chandris v. Latsis, __ U.S. __, 115 S. Ct. 2172 (1995)
oe kh wa e Kala che aan een he eee eee ee 16, 17, 24
Elberg v. Mobil Oil Corp., 967 F.2d 1146 (7th Cir. 1992)
kok Ce ORES kA a ea een bs 19
Fanetti v. Hellenic Lines, Ltd., 678 F.2d 424 (2d Cir.
SD eaC bids obs rea Ts oe eee eer 19, 20
Gianfala v. The Texas Co., 350 U.S. 879 (1955) ..... 23
Gizoni v. Southwest Marine, Inc., 909 F.2d 385 (9th Cir.
1990), aff’d, 502 U.S. 81, 56 F.3d 1138 (9th Cir. 1995)
RE Re A ey er rire rere re rr Pte a 23
Grimes v. Raymond Concrete Pile Co., 356 U.S. 252
Eo | RSE, Opener rns Aram een emerge it ware yee 23
Gutierrez v. Waterman Steamship Corp., 373 U.S. 206
1) er ee ne, ata teran Derr hy yee ae) 10
Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994)
vi
Contents
Page
Jackson v. Lykes Steamship Co., 386 U.S. 731 (1967)
‘cbavddesciunnd deeenteavetiueerestiesaren 11, 14
Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523
ERGES :d'vbwe 6.0 dob kewe bared eeaekeneee 9, 14, 15, 16
McDermott International, Inc. v. Wilander, 498 U.S. 337
TED ven vdcdes des anassdeehuesienskoneres 23, 24
Miles v. Apex Marine, 498 U.S. 19 (1990) .......... 13
Pichof v. Bisso Towboat Co., Inc., 748 F.2d 300 (Sth
Cae BG) cchécwvcawswh alan saieesuewubenees 19
Reed v. Yaka, 373 U.S. 410 (1963) .....scccccesces 11, 14
Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350
SCR ci clcccdecvaveadbaceeveusuets 12
Scindia v. De Los Santos, 451 U.S. 156 (1981) .9, 17, 18, 19
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ... 12
Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957)
elewe ceeewseeeeb sab Oeuee eb ae nere neers 23
Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d
coer oe i ere rr rrr paver hemes 19
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)
wicavevse dédaceseonsctscedeeetus teeters 23
vil
Contents
Page
Tonneson v. Yonkers Contracting Co., Inc., 82 F.3d 30
SE NE ME Cv iin Sub via eu swolk Catena 22
Statutes Cited:
Pe PD ahs b's ba. whe weeds l
ee 5 bg ko ca hay Od bab ones hw ceeun l
Pe ee ne OE ov es cule daecenivuokn 1]
PP NE C15 Fade ubdch ccieeeck EO 20
Pe ee ee og gen a) oe 8, 17
PP a EEE fi 2 os 008 kk cw devecn eee 8, 10, 14
BY WAM oe a 05k oie ada a Wada voce ce, 1]
Pe os tla Vs searches kun 16, 17
Dee SRE: UNE 65-0 0s 6 Je wee 66k oe Cane re EL passim
WP WE ND hn a os chu un 04060 a8 ob0 en ani i, 5, 16, 17, 20
Rule Cited:
Supreme Court Rule 10(c) .................0005. 8
vill
Contents
Page
Other Authorities Cited:
1A Jhirad, Benedict on Admiralty § 93 at 15-12 (7th ed.
ho} en Serer re rer err ery Terr ree s 12
Annual Report of the Director of the Administrative Office
of the United States Court (1987-1991) .......... 21
National Transportation Statistics Annual Report (July
LODE kn cd bie ele ccceseiecereereee reek bavenes 21
Waterborne Commerce of the United States (Army Corps
Of Baginsers 1969) ...cccccccccccccccvscccens 21
19T2 TBA, SIG6 cc ii venvcevesveunes ais iz, io
1972 UBL AA, SH 6506s eked is deers siass 9, 11, 14
APPENDIX
Appendix A — Opinion En Banc of the United States
Court of Appeals for the First Circuit Dated October
10, 1996 in Morehead v. Atkinson-Kiewit, J/V, et al.
Gh onh bub CK RaNs EO OME CR AeEEEOS Eh SEPP Ie ent la
Appendix B — Opinion of the United Staies Court of
Appeals for the First Circuit Dated February 6, 1996
in Morehead v. Atkinson-Kiewit, J/V, etal. ........ Sla
Appendix C — Findings and Order of the United States
District Court, District of Massachusetts Dated April
29, 1994 in Morehead v. Atkinson-Kiewit, J.V., et al.
ix
Contents
Appendix D — Opinion En Banc of the United States
Court of Appeals for the First Circuit Dated October
10, 1996 in Digiovanni, Jr. v. Traylor Brothers, Inc.
oF? Se €'S.6.6 8:6 60692 68.68 849-62 66.8 28 6.8 6.918 6.66 62 6 42 oe 6 6 &
Appendix E — Opinion of the United States Court of
Appeals for the First Circuit Dated February 6, 1996
in Digiovanni, Jr. v. Traylor Brothers, Inc. ........
Appendix F — Memorandum and Order of the United
States District Court for the District of Rhode Island
Dated June 9, 1994 in Digiovanni, Jr. v. Traylor
NG CU ol Che We SWE didn ccd cece cd¥mas
Appendix G — Opinion En Banc of the United Siates
Court of Appeals for the First Circuit Dated March 4,
1992 in Digiovanni, Jr. v. Traylor Brothers, Inc.
oP O'S OF 8 C2 9.9 CO.) 8 82 e606 64D 8 FRO GOO BO 4 6 Bt 0 8 0. & %
Appendix H — Judgment of the United States Court of
Appeals for the First Circuit Entered March 4, 1992 in
Digiovanni, Jr. v. Traylor Brothers, Inc. ..........
Appendix I — Opinion of the United States Court of
Appeals for the First Circuit Dated April 17, 1991 in
Digiovanni, Jr. v. Traylor Brothers, Inc. ..........
Appendix J — Relevant Statutes ..................
Page
84a
90a
118a
130a
l
OPINIONS BELOW
The first en banc decision of the United States Court of
Appeals for the First Circuit in the case of DiGiovanni v. Traylor
Bros. Inc., is reported at 959 F.2d 1119 (1st Cir. 1992).
The second en banc decision of the United States Court of
Appeals for the First Circuit in the case of DiGiovanni v. Traylor
Bros., Inc., is reported at 1996 WL 570563.
The en banc decision of the United States Court of Appeals
for the First Circuit in the case of Morehead v. Atkinson-Kiewit,
JV., et. al., is reported at 1996 WL 570537.
The panel decisions and en banc decisions for all three cases
have been reproduced in the appendix.
STATEMENT OF JURISDICTION
This petition seeks review of the judgments of the United
States Court of Appeals for the First Circuit entered on March
4, 1992 and on October 10, 1996. This petition is filed timely
pursuant to 28 U.S.C. § 2101(c). This Court’s jurisdiction is
invoked pursuant to 28 U.S.C. § 1254 (1).
STATUTES INVOLVED
1. The Jones Act, 46 U.S.C. § 688(a):
(a) Application of railway employee
Statutes; jurisdiction.
Any seaman who shall suffer personal injury
in the course of his employment may, at his
election, maintain an action for damages at
2
law, with the right of trial by jury, and in such
action all statutes of the United States
modifying or extending the common law
right or remedy in cases of personal injury
to railway employees shall apply; and in case
of death of any seaman as aresult of any
such personal injury the personal
representative of such seaman may maintain
an action for damages at law with the right
of trial by jury, and in such action all statutes
of the United States conferring or regulating
the right of action for death in the case of
railway employees shall be applicable.
Jurisdiction in such actions shall be under
the court of the district in which the
defendant employer resides or in which his
principal office is located.
2. 33 U.S.C. §905(b):
(b) Negligence of vessel
In the event of injury toa person covered
under this chapter 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 in accordance
with the provisions of sections 933 of this
title, 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
rel
3
permitted if the injury was caused by the
negligence of persons engaged in providing
stevedoring services to the vessel. 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, owner pro hac vice, agent,
operator, or charterer) or against the
employees of the employer. 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 chapter.
STATEMENT OF THE CASE
A. Morehead v. Atkinson-Kiewit
On January 29, 1990 Mark Morehead was untying a barge
from another barge when he stepped backwards into an open
hatch that was flush with the barge’s deck. He was seriously
injured. The barge had been taken out of construction service
before the accident. It had been “set off to the side” of the pier
outside of Atkinson-Kiewit’s Davisville headquarters. The barge
was not carrying materials, supplies, or construction materials
of any kind at the time of the accident. The barge needed to be
aired out because it was being returned to its owner, or going
“off hire”.
4
The hatch in which Morehead fell had been opened by
Steven Breault. Breault, an Atkinson-Kiewit employee, was a
dock builder with navigation duties aboard the barge. Breault
opened the hatch to “air out” the barge. The only evidence
proffered at trial was that the hatch had been open for at least
two days before the accident, per order of Ray Norman,
Atkinson-Kiewit’s foreman. Atkinson- Kiewit had a contract with
the State of Rhode Island to build the Jamestown Bridge,
spanning Narragansett Bay. Atkinson-Kiewit hired carpenters
and laborers to perform the bridge construction. This work
involved cutting timbers and steel, pouring concrete, welding,
and other construction duties. To do the work and transport
materials around the bay, Atkinson-Kiewit chartered barges. It
did not employ separate workers to navigate the barges, however.
Instead, the carpenters and laborers who did the bridge
construction work also maintained and operated the barges.
They would handle the lines on the barges, tie the barges to the
tug, and participate in the manning and moving of the barges.
In fact, Morehead worked as both a construction worker and a
scowman aboard the various barges.
The trial court ruled that Atkinson-Kiewit was negligent as
an employer rather than as a vessel owner, and denied
Morehead’s claim pursuant to 33 U.S.C. § 905(b). On the very
same day that a panel of the First Circuit allowed recovery in
DiGiovanni, it denied recovery in Morehead, interpreting the
same statute in a strikingly different manner. The First Circuit
Court of Appeals, sitting en banc, affirmed.
B. DiGiovanni v. Traylor Bros. Inc.
On September 30, 1988 Rocco P. DiGiovanni was a member
of the crew of a crane-carrying barge which transported a crane
and supplies around Narragansett Bay in Rhode Island and
participated in the building of piers and coffer dams for the
5
Jamestown Bridge project. He was injured when he slipped on
hydraulic fluid that had leaked on deck and which had been
leaking for at least one month. DiGiovanni sought damages
under the Jones Act, 46 U.S.C. § 688, and the general maritime
law, and invoked the maritime jurisdiction of the United States
District Court for the District of Rhode Island. After a three
day trial, the jury returned a verdict in favor of the plaintiff on
the Jones Act and general maritime law counts. In that trial, the
jury never reached the alternative count alleging that DiGiovanni
was a maritime employee entitled to recover for the negligence
of a vessel pursuant to 33 U.S.C. § 905(b), because the court
instructed the jury that if they found the plaintiff to be a seaman
they could not reach the § 905(b) count.
The defendant appealed to the First Circuit Court of
Appeals, which enunciated a new legal rule defining what
constitutes a “vessel in navigation” under the Jones Act. The
court ruled as a matter of law that the DiGiovanni craft was not
a vessel in navigation, and reversed and remanded, limiting the
issue to consideration only of the negligence question under 33
U.S.C. § 905(b).
On remand, the trial judge entered judgment in favor of the
defendant, ruling that although the defendant was negligent, its
negligence was not committed by it in its capacity as vessel
owner. A panel of the First Circuit vacated and remanded the
decision, reasoning that “admiralty loathes the notion of a vessel
under way with no crew”. The First Circuit Court of Appeals,
sitting en banc, vacated the panel’s decision and affirmed the
trial court’s decision.
1. Physical Description of the Barges
The BETTY F is a 40' x 100' steel hull barge. It has a raked
bow, which is at an angle from the front to the back. It has
6
navigation lights for transportation. The vessel had to be
maintained to Coast Guard standards. The Coast Guard boarded
the BETTY F frequently to inspect it. The vessel was registered
with the Coast Guard; when it was purchased, Traylor Brothers
had to inscribe its name and its Wilmington, Delaware
registration on the vessel for navigational reasons. The Coast
Guard also required that the barge’s anchor balls had to be
painted white with quick flashing white lights on it for
navigational reasons. A warning whistle had to be kept on board
to warn other vessels. A fender system had to be placed on the
side of the barge so that it wouldn’t be damaged by nor cause
damage to other vessels coming close to it. While aboard her,
the men had to wear life jackets.
The BETTY F was equipped with load lines, which the
Coast Guard required be kept in a visible condition. The load
lines were used to ballast the vessel down and keep it flat or
trim. The barge also had internal compartments or bulkheads
which would be filled with water to ballast the vessel. The
BETTY F would travel to Davisville, Rhode Island and hook up
to hydrants located there to fill it with water. Various
compartments would be filled with water consistent with wind
and tide conditions and to counterbalance whatever was on the
other side of the barge, i.e., if the barge’s crane were lifting a
heavy weight, etc.
The BETTY F had toilet facilities and an enclosed area
where the crew could eat, which contained a small cafeteria
with a stove and refrigerator. A tool shack and a sitting area
were located near the bow of the vessel.
2. Movement of the Barges
The BETTY F carried a crane which it would transport
around Narragansett Bay to construct piers and coffer dams for
SS eeeEEEEeEeee—Ee
7
the Jamestown Bridge. The job could not be performed by a
land based crane. The barge had to be moved to put the crane
wherever it was needed. Approximately once each month the
BETTY F was moved across navigable waters, aided by a tug
or push boat, in order to transport the crane to a new job site.
This special-purpose vessel had been outfitted in Davisville,
Rhode Island one month before the accident, and presumably
brought by tug to the job site where the injury occurred. The
undisputed testimony of the petitioner is that he “travelled quite
a bit on the BETTY F”. The supply barge that was part and
parcel of the BETTY F had transported cargo on the day of the
accident. In fact, it would be brought to and from Davisville at
various operations of the job whenever supplies were needed or
anything else was needed at the job site. The supply barge
carried a hammer that was part of the BETTY F’s crane. It also
carried a power pack, H beams, and sheetings.
The BETTY F was moved around the job site on a daily
basis. Every day it was moved around the work area, and at
night, it was moved away from the work area so that it wouldn’t
sustain any damage from the motion of the water or the wind.
3. The Petitioner’s Job Duties
DiGiovanni was taken to the BETTY F each morning by
crew boat. When the BETTY F was taken to a new job site,
DiGiovanni would respond to the tug captain’s orders as well
as the barge captain’s orders regarding the handling of the lines
connecting the tug and barge. He would continue to slack and
secure these lines during the voyage. He would ride the vessel
to the new site, keeping watch in front of the barge so it wouldn’t
hitanything. DiGiovanni would check the vessel for
seaworthiness, and clear its decks. He wouid also take part in
the ballasting of the vessel. Another one of the DiGiovanni’s
job duties was to act as a tag man during pile-driving operations.
8
Instead of hiring separate crews to man its vessels, Traylor
Brothers used its construction workers to perform both
construction-related tasks and vessel-related tasks. Taylor’s
general superintendent on the project, Edward Brush, supervised
the workers and had the responsibility to make sure that all of
the equipment on the job, including the barges, were safe.
REASONS FOR GRANTING THE WRIT
I.
THE FIRST CIRCUIT COURT OF APPEALS HAS
DECIDED AN IMPORTANT QUESTION OF FEDERAL
LAW THAT HAS NOT BEEN, BUT SHOULD BE,
DECIDED BY THIS COURT.
Pursuant to Supreme Court Rule 10(c), this Court may grant
review on a writ of certiorari where “a United States court of
appeals has decided an important question of federal law that
has not been, but should be, settled by this court. . . .” Supreme
Court Rule 10(c). The important federal question is as follows:
how does one distinguish between vessel negligence and
employer negligence where the same entity is both vessel owner
and employer, and the same employees have vessel-related duties
and employer-related duties? The distinction is important,
because pursuant to 33 U.S.C. § 905(b), a maritime worker has
a cause of action when he is injured by the negligence of a
“vessel”. “Maritime worker” is defined in 33 U.S.C. § 902(3)
and includes longshoremen, harbor workers, and a host of other
employees. “Vessel” is defined in 33 U.S.C. § 902(21) to include
the vessel’s “master, officer, or crew member”. Congress itself
recognized the importance of uniformity in interpreting this
maritime negligence action. In the Committee Notes, it states:
“the Committee does not intend that the negligence remedy
authorized in the bill shall be applied differently in different
ade tated STEN OS BR eH
9
ports depending on the law of the state in which the port may be
located. The Committee intends that legal questions which may
arise in actions brought under these provisions of the law shall
be determined as a matter of Federal Law”. 1972 U.S.C.C.A.N.
4705.
This Court has touched upon the “dual capacity” issue, but
ever so lightly. In Jones & Laughlin Steel Corp. v. Pfeifer, 462
U.S. 523, 530-32 (1983), the shipowner asserted that it could
not be held liable for negligence damages because it was an
employer and its liability was limited to the payment of
compensation. The Pfeifer Court disagreed. It held that an owner
of a vessel which acts as its own stevedore may be held liable
for both compensation and negligence damages when a stevedore
who is directly employed by it is injured as a result of the vessel
owner’s negligence. The Court made it clear that in order to be
liable, the vessel owner had to have been acting in its vessel
owner Capacity, not in its stevedore capacity. 462 U.S. at 531,
n.6.
In its fifty-eight page en banc decision, the First Circuit
Court of Appeals (Campbell, J.) states that this is an issue of
first impression: “But the Supreme Court has not yet had
occasion to analyze the vessel’s duties in a dual capacity case.
Nor has the Court considered to what degree its Scindia analysis
applies to non-longshoring harborworkers, whose duties and
modus operandi differ considerably from those of longshore
workers”. Morehead, en banc decision at 15a, 16a.
Two judges of the First Circuit have specifically requested
the Supreme Court to resolve this issue:
I write separately, however to urge the
Supreme Court and Congress to reflect upon
the mind games that Jones and Laughlin —
10
particularly as applied to harbor workers-
compels us to play....
Morehead, en banc decision at 31a (Selya, J. concurring).
In his dissenting opinion, Judge Cyr writes:
Neither the Congress nor the Scindia Court
could have foreseen the recent, fast-paced
evolution in maritime construction practices
which has exacerbated the instant
controversy. Ultimately, therefore, the
Congress or the Supreme Court must provide
a definitive response to the present
conundrum.
Morehead, en banc decision at 46a (Cyr, J.) (dissenting).
Il.
THE DECISIONS CONFLICT WHiH THE
STATUTORY LANGUAGE OF 33 U.S.C. § 905(b).
A maritime worker may recover in tort if he is injured by
the negligence of a vessel. 33 U.S.C. § 905(b). The statute
defines the term vessel to include its “master, officer or crew
member”. 33 U.S.C. § 902(21). A vessel is therefore also liable
for the negligence of its employees. This makes sense. This
Court stated in Gutierrez v. Waterman Steamship Corp., 373 U.S.
206 (1963) that “there is no distinction in admiralty between
torts committed by the ship itself and by the ship’s personnei
while operating it, any more than there is between torts
committed by a corporation and by its employees”. The injuries
in both Morehead and DiGiovanni were caused by the negligence
Ri IDR LAS POR ha v8
1]
of a vessel. In Morehead, an employee of the vessél left its
hatch open, uncovered, and unguarded for three days, without
any warning or notice. In DiGiovanni, the vessel’s hydraulic
power pack had been leaking for at least one month, its deck
was not equipped with a non-skid surface, and its crane was
“herky-jerky”. Yet, the First Circuit effectively repealed 33
U.S.C. § 905(b) by denying recovery in each case.
A. History of the Longshore and Harbor Workers’
Compensation Act (LHWCA)
The LHWCA was enacted in 1927. 44 Stat. 1424 (1927).
It was a remedial act, designed to protect maritime workers.
This Court has stated that the LHWCA “must be liberally
construed in conformance with its purpose, and in a way which
avoids harsh and incongruous results”. Reed v. Yaka, 373 U.S.
410, 415 (1963); Jackson v. Lykes Steamship Co., 386 U.S. 731
(1967) (“an Act designed to provide equal justice to every
longshoreman sirnilarly situated”).
Congress reexamined and amended the LHWCA in 1972.
33 U.S.C. § 901, et seq. It observed that “longshoring remains
one of the most hazardous types of occupations”. 1972
U.S.C.C.A.N. 4705. Congress hoped that the passage of the
amendments would bring “further progress in reducing injuries”.
Ibid. Congress enhanced the remedial nature of the LHWCA in
five major respects: (a) it allowed more people to be covered
under the Act by expanding the definition of the term “maritime
employee”; (b) it eliminated the requirement that an injury occur
on navigable waters to be compensable, 33 U.S.C. § 903(a); (c)
it increased the benefits payable to injured workers; (d) it
established for the first time a statutory right for an employee
covered under the LHWCA to sue shipowners as third parties
based upon negligence, which it condified at 33 U.S.C.
12
§ 905(b)'. See generally 1A Jhirad, Benedict on Admiralty
§ 93, at 5-12 (7th ed. 1992); and (e) it eliminated indemnity
actions by the shipowner against the stevedore, repealing the
Ryan doctrine. Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp.,
350 U.S. 124 (1956).
Congress’ stated reason for the new statutory cause of action
(§ 905(b)) was the common refrain throughout the LHWCA:
safety. The House Report states:
Permitting actions against the vessel based
on negligence will meet the objective of
encouraging safety because the vessel will
still be required to exercise the same care as
a land-based person in providing a safe place
to work. Thus, nothing in this bill is intended
to derogate from the vessel’s
responsibility to take appropriate corrective
action where it knows or should have known
about a dangerous condition.
1972 U.S.C.C.A.N. 4704. As an example, the committee posits
a situation where a longshoremen slips on an oil spill on the
deck of a vessel:
So, for example, where a longshoremen slips
on an oil spill on a vessel’s deck and is
injured, the proposed amendments to Section
5 would still permit an action against the
vessel for negligence. To recover he must
establish that: (1) the vessel put the foreign
substance on the deck, or knew that it was
1. The Act also eliminated a longshoreman’s right to recover for the
unseaworthiness of a vessel as previously allowed in Seas Shipping Co. v.
Sieracki, 328 U.S. 85 (1946).
as Cie. aaa
ee Se a ee ee
13
there, and willfully or negligently failed to
remove it; or (2) the foreign substance had
been on the deck for such a period of time
that it should have been discovered and
removed by the vessel in the exercise of
reasonable care by the vessel under the
circumstances.
Ibid.
The First Circuit has taken away a remedy which Congress
has given, which it cannot do. In the case of Miles v. Apex
Marine, this Court noted that the Admiralty Courts could not
provide a remedy that was not given by Congress. 498 U.S. 19
(1990). By the same token, then, the Admiralty Court cannot
take away a remedy firmly established by Congress to promote
and encourage maritime safety.
B. The First Circuit’s Decisions Violate Congress’ Mandate
that Similarly Situated Workers Should Have the Same
Rights, Regardless of the Employment Arrangement.
A vessel owner should not be penalized when it employs
its own maritime workers. By the same token, a maritime worker
should not be denied a remedy where the vessel owner fails to
hire a specialized, separate crew to take care of the vessel. That
is exactly what happened here.
The Committee believes that the rights of an
injured longshoreman should not depend on
whether he was employed directly by the
vessel or by an independent contractor ...
The Committee’s intent is that the same
principles should apply in determining
liability of the vessel which employs its own
14
longshoremen or shipbuilders or repairmen
as apply when an independent contractor
employs such persons.
1972 U.S.C.C.A.N. 4705.
In both cases, the evidence qualified the plaintiffs for
recovery because they were injured by the negligence of the
vessel’s employees. 33 U.S.C. § 902(21); this renders the vessel
liable for negligence under § 905(b). But by calling its vessel
employees “construction workers”, the defendants immunized
themselves from virtually any potential negligence action under
§ 905(b). Allowing this case to stand would implicitly repeal
the statute and promote form over substance. This Court has on
three occasions struck down artificial employer-employee
relationships where a shipowner has acted as its own contractor
and hired all of its workers directly, and then claimed immunity
under the compensation statute. Reed v. Yaka, 373 U.S. 410
(1963); Jackson v. Lykes Steamship Co., 386 U.S. 731 (1967);
Jones and Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983).
The First Circuit decisions are in direct conflict with these cases.
Il.
THE DECISIONS CONFLICT WITH RELEVANT
DECISIONS OF THIS COURT.
As discussed earlier, the Court in its Pfeifer decision stated
that a vessel owner acting as its own stevedore is liable only for
negligence in its vessel owner capacity, not for negligence in its
stevedore capacity. 462 U.S. at 531, 2.6. Unlike in the present
cases, however, Pfeifer did not involve a case where the
employees acted in a dual capacity. A logical extension of the
Pfeifer principle would be that where vessel employees also act
as stevedores (or in this case, as maritime workers), they render
15
the vessel liable only when acting in their vessel employee
capacity. Under a Pfeifer analysis, then, the court should look
at the negligence which caused the injury. There are two possible
scenarios which can arise:
1. There is a defect with the vessel or its appliances,
appurtenances or equipment that the vessel owner or its
agents, servants or employees either knew, or should have
known, about.”
2. Anemployee of the vessel is negligent while doing
something in connection with the vessel.
Under the first scenario, it is irrelevant who actually caused
tne defect if the vessel owners or their agents, servants or
employees either knew or should have known about it. Howlett
v. Birkdale Shipping Co., 512 U.S. 92 (1994) (sufficient evidence
in the record to support a permissible inference that, during the
loading process, some crew members, who might have held
positions such that their knowledge should be attributed to the
vessel, did in fact observe the plastic on the ‘tween deck). Under
the second scenario, the court must look to see if the negligent
act was an act of “vessel negligence” under § 905(b), which
includes negligent acts of the vessel’s master, agent, officer,
operator or crew member. If the tortfeasor has vessel-related
duties and non-vessel related duties, the court must look at what
the tortfeasor was doing which caused the injury. For example,
if a harbor worker negligently throws a vessel’s bow line to
another harbor worker and hits him in the eye, it is an act of
vessel negligence and recovery would lie. On the other hand. if
the harbor worker negligently throws a coil of rope to another
harbor worker while the two are on land, it is not an act of vessel
2. This is not tantamount to an action for “unseaworthiness”, where
negligence need not be shown.
16
negligence and recovery would be limited to compensation
benefits.
To state it another way, under Pfeifer a dual capacity vessel
owner is liable only for negligence committed by it in its vessel
owner capacity. Following that principle to its logical
conclusion, a dual capacity employee will render the vessel liable
only if he is acting for the vessel at the time the negligent act is
committed. This can be the only interpretation of Pfeifer,
especially in light of the underlying theme of the 1972 LHWCA
amendments: to promote safety, and to make vessels liable for
their own acts of negligence.
The First Circuit refused to conduct a Pfeifer analysis. The
First Circuit stated that “While an emphasis on vessel type duties
may be appropriate for the fact specific inquiry into seaman
status, we place little weight on this attempt to bifurcate vessel
and construction activities when these workers were hired to
perform both”. Morehead en banc opinion at 18, n. 13. The
First Circuit’s concern is that by analyzing a worker’s duties at
the time of the accident, the worker could drift in and out of
coverage. In support of its position, it cites two sources: this
Court’s decision in Chandris v. Latsis, 115 S. Ct. 2172 (1995)
(which was aJones Act, not a § 905(b) decision); and, language
from the legislative history of the LHWCA stating that the Act
was promulgated to ensure certainty of coverage. Both sources
are inapposite, and cannot be taken out of context. Maritime
compensation coverage (33 U.S.C. § 904), the Jones Act (46
U.S.C. § 688), and vessel negligence (33 U.S.C. § 905(b)) are
as different from each other as apples, oranges, and pears.
Uniformity of coverage is key under the federal compensation
system for maritime workers. The 1972 amendments were
designed to end the situation where a maritime worker would
collect state compensation if injured on land, and federal
compensation if injured on navigable waters. Under the Jones
ere
17
Act, 46 U.S.C. § 688, one of the elements of proof is that the
plaintiff be a “member of a crew” of a vessel. This necessarily
involves an inquiry into the plaintiff’s overall duties, as this Court
did in Chandris v. Latsis, 115 S. Ct. 2172 (1995), to determine
whether the plaintiff has a “substantial employment- related
connection to a vessel in navigation”. 115 S. Ct. at 2192. Unlike
in maritime compensation and Jones Act cases, however, vessel
negligence is the only inquiry in a § 905(b) case. Once an
individual qualifies as a maritime employee under 33 U.S.C.
§ 902(3), it is irrelevant how frequently he is aboard a vessel, or
that he may sue a vessel under § 905(b) if he falls into an open
hatch on a vessel but not in an open manhole on land.
Maritime workers are provided with certainty of coverage
for their compensation benefits pursuant to § 904 of the
LHWCA. The Act covers them whether they are injured ashore
or on navigable waters, or whether they are injured on or off of
a vessel. However, the same cannot be said for actions under
§ 905(b). Because Congress has afforded workers an additional
statutory remedy for injuries caused by the negligence of a
vessel, the only “certainty of coverage” that can exist is that
harbor workers injured by the negligence of a vessel or by those
doing vessel related duties can recover § 905 (b) damages. Those
who are not injured by the negligence of a vessel are limited to
compensation benefits under § 904.
DiGiovanni and Morehead are also inconsistent with this
Court’s reasoning in Scindia v. De Los Santos, 451 U.S. 156
(1981). In Scindia, a longshoreman was injured while working
in the ship’s hold when he was struck by sacks of wheat which
fell from a pallet. It was unclear whether the sacks had fallen
due to the longshoremen’s negligent operation of the winch, or
due to the winch’s defective braking mechanism. It was also
unclear whether the shipowner was aware or chargeable with
knowledge of the problem with the winch. Among other things,
18
the Court held that the shipowner did not have a continuing duty
to supervise and inspect the stevedore’s cargo-handling operation
as “such an approach would repeatedly result in holding the
shipowner solely liable for conditions that are attributable to
the stevedore, rather than the ship”. Jd. at 169. The theory
behind the “turnover” doctrine is simple. A vessel is liable
pursuant to 33 U.S.C. § 905(b) for its own negligence, not for
the negligence of the subcontractors it hires such as stevedores
and ship repairers.
In DiGiovanni and Morehead the First Circuit allowed the
vessel owners to exonerate themselves from their own acts of
negligence simply because they manned their vessel with union
construction workers and characterized their actions as
construction activities rather than vessel activities. This violates
the mandate of Scindia that vessel owners be responsible for
their own acts of negligence.
IV.
THE DECISIONS CREATEA SPLIT BETWEEN THE
CIRCUITS.
Unlike the First Circuit, the Fifth Circuit has stated that a
vessel owner cannot be said to have turned a vessel over to itself
where it is contractually obligated to perform a job, requires
the vessel to effectuate the obligation, and remains in control of
the vessel to do so. Masinter v. Tenneco Oil Co., 867 F.2d 892
(Sth Cir. 1989). Morehead and DiGiovanni are factually similar.
Traylor Bros. and A-K remained in control of the barges, moving
them around the bay in furtherance of their overall mission: the
construction of the Jamestown Bridge, which they were
contractually obligated to build. Although some cases stand
for the proposition that a vessel owner can turn a vessel over to
its own employees, the types of work that the employees
foe aR, Ng Ser vg Oa he RBS
PPA SOS Sb SG Ba
Paik aS RENT aR SS Ne
19
performed in those cases was of a separate, specialized nature.
Pfeifer, supra (shipowner/stevedore); Scindia, supra (shipowner/
stevedore); Castorina v. Lykes Bros., 758 F.2d 1025 (Sth Cir.
1985) (shipowner/stevedore); Elberg v. Mobil Oil Corp., 967
F.2d 1146 (7th Cir. 1992) (shipowner/welder). Not one case
has ever held that a turnover existed in facts similar to the
Morehead and DiGiovanni cases.
Following this reasoning, the Fifth Circuit also reached a
different result in a case very similar to DiGiovanni and
Morehead. tn Pichof v. Bisso Towboat Co., Inc., 748 F.2d 300
(Sth Cir. 1984) the vessel owner acted as its own repairer. The
vessel’s employee, a repairman, was injured when he slipped
on diesel fuel on the bilge floor. The vessel owner alleged that
it was negligent as a vessel repairer, not as an owner. 748 F.2d
at 302. The Fifth Circuit observed that “the line between owner
and repairer is dull and elusive, at best”. Jd. at 303. Relying on
“intuition and common sense” the court held that the negligence
was at least partly vessel negligence and thus recovery could be
had under §905(b). Ibid. See also Smith v. Eastern Seaboard
Pile Driving, Inc., 604 F.2d 789 (2d Cir. 1979) (vessel owner’s
president who participated in repair mission and was negligent
was not immune from suit, as “supervisory personnel in
particular will continue to fulfill their general duties as agents
of the shipowner”). In Fanetti v. Hellenic Lines, Ltd., 678 F.2d
424 (2d Cir. 1982) a shipowner acted as its own stevedore and
tried to claim immunity from suit for its crewmember’s
negligence. In allowing recovery, the Fanetti court observed
that “a jury charge which relieved a shipowner of liability for a
dangerous condition which was known to the stevedore or to
any of its employees is clearly inappropriate where the
shipowner, itself, is the stevedore”. 678 F.2d 428.
The court reasoned that although a shipowner has a right to
rely on an independent expert contractor, it cannot rely upon an
20
expert contractor who, in fact, was not there. Jd. at 430. The
Court characterized such a concept as “schizophrenic” and “the
predictable effect upon the jury one of bafflement”. Jbid.
Vv.
THE FIRST CIRCUIT’S DEFINITION OF THE
TERM “VESSEL IN NAVIGATION” TO ALLOW
RECOVERY FOR JONES ACT NEGLIGENCE
CONFLICTS WITH DEFINITIONS ESTABLISHED BY
OTHER CIRCUITS AND BY THIS COURT.
This petition for certiorari is the second petition which
DiGiovanni has filed. Originally, the jury returned a verdict in
favor of DiGiovanni on the Jones Act (46 U.S.C. § 688) and on
the general maritime law counts. In light of the fact that the
jury found DiGiovanni to be a Jones Act seaman, it never reached
the issue of whether he was a “maritime employee” pursuant to
33 U.S.C. § 902. The First Circuit Court of Appeals, sitting en
banc, changed the definition of the term “vessel” under the Jones
Act. 959 F.2d 119 (ist Cir. 1992) (en banc). The court reversed
and remanded the case for consideration of the 33 U.S.C.
§ 905(b) issue, which was never reached. DiGiovanni petitioned
for certiorari to this Court, which denied the petition on October
5, 1992. 506 U.S. 827 (1992).
At the second trial of DiGiovanni, the trial court found that
“for at least a week before the accident, hydraulic fluid had
been leaking from the power pack onto the metal deck of the
supply barge. . . .Consequently, the deck of the supply barge
remained very slippery for the week or so leading up to the
accident”. The court held, however, that the defendant was not
negligent in its capacity as vessel owner. The effect of the two
decisions has been to leave DiGiovanni without a negligence
cause of action. DiGiovanni must be either “fish or fowl”. For
21
this reason, and for the reason that the circuits have conflicting
definitions of the term “vessel in navigation” which have not
been reconciled despite 75 years of maritime jurisprudence,
DiGiovanni once again asks this Court to grant certiorari on
this issue.
This case should also be heard by this Court due to the large
number of barges in this country, the ever increasing amount of
barge traffic and concomitant accidents, and the great volume
of maritime tort cases pending nationwide. Between 1978 and
1988, the number of registered vessels rose 33 1/3%. National
Transportation Statistics Annual Report (July 1990). Of the
40,000 registered vessels, 31,125 were presumably barges (non-
self-propelled vessels). Jd. at 32. Moreover, 6,367 vessels were
involved in marine accidents in 1988, a 15% increase over the
previous year. Jd. at 80. During that same period of time, the
number ef millions of tons of goods moved by barge increased
from 3.8 tons to 4.6 tons, an increase of 21%. See Waterborne
Commerce of the United States (Army Corps of Engineers 1989).
Over the past five years, approximately 3,000 maritime personal
injury suits have been commenced annually; at any given time,
there are roughly 4,000 maritime personal injury suits pending.
See Annual Report of the Director of the Administrative Office
of the United States Court (1987-1991).
A. The Conflict Between the Circuits on the Definition of
“Vessel in Navigation” under the Jones Act.
The en banc First Circuit decision held that as a matter of
law, the BETTY F was not a vessel for seaman status purposes
at the time of DiGiovanni’s injury. The Court announced a new
legal rule: “if a barge or other float’s ‘purpose or primary
business is not navigaticn or commerce’, then workers assigned
thereto for its shore enterprise are to be considered seamen only
when it is in actual navigation or transit”. 959 F.2d 1119, 1123.
22
In a 1996 case, the Second Circuit Court of Appeals
criticized the DiGiovanni approach and refused to adopt the
“primary purpose” test. TJonneson v. Yonkers Contracting Co.,
Inc., 82 F.3d 30 (2nd Cir. 1996). The Jonneson court noted that
although the First Circuit thought it had adopted the Fifth
Circuit’s test, “it-applied the Fifth Circuit’s test far more
restrictively than the Fifth Circuit, or, for that matter, any circuit,
ever had”. 82 F.3d at 34. In enunciating a different test, the
Second Circuit observed that it would not follow the First
Circuit’s “restrictive interpretation of ‘vessel in navigation’ ”.
Ibid. The Second Circuit’s test is:
(1) Whether the structure was being used
primarily as a work platform during a
reasonable period of time immediately
preceding the accident; (2) whether the
structure was moored or otherwise secured
at the time of the accident; and(3) whether,
despite being capable of movement, any
transportation function performed by the
structure was merely incidental to its primary
purpose of serving as a work platform.
82 F.3d at 36.
The Ninth Circuit Court of Appeals has a different
definition of the term “vessel in navigation” than either the First
Circuit or the Second Circuit. In the most recent case of Gizoni
v. Southwest Marine, Inc., the Ninth Circuit held that jury
instructions (pursuant to which the jury found that Gizoni was
not a seaman) emphasizing that a structure was not a vessel if
its transportation functions were only incidental, were wrong:
The fact that the craft was constructed for a
purpose other than the transportation of
PE Se ER ga
23
persons or things from one place to another
does not mean that as a matter of law, it is
not a vessel in navigation. The vessel
instruction here ignores Wenzel by overstating
the importance of the transportation purpose
... We have indicated before that unusual
looking crafts whose purpose is not the
transportation of persons or things can be
considered vessels under the Jones Act.
Gizoni v. Southwest Marine, Inc., 909 F.2d 385 (9th Cir. 1990),
aff'd, 502 U.S. 81, 56 F.3d 1138, 1142 (9th Cir. 1995) (citations
omitted).
B. The Conflict Between the Supreme Court and the First
Circuit on the Definition of “Vessel in Navigation” under
the Jones Act.
While this Court has never directly addressed the issue of
what constitutes a “vessel in navigation”, it has found non-
conventional watercraft of limited mobility to be considered
vessels for Jones Act purposes. Gianfala v. The Texas Co., 350
U.S. 879 (1955) (drilling barge without motive power or
navigation lights which had its spuds in place at the time of the
accident); Senko v. La Crosse Dredging Corp., 352 U.S. 370
(1957) (a dredge which was anchored to shore at all times during
the plaintiff’s employment and was seldom moved); Southwest
Marine, Inc. v. Gizoni, 502 U.S. 81 (1991) (a pontoon barge
without motive power secured to the end of a floating dry dock);
Grimes v. Raymond Concrete Pile Co., 356 U.S. 252 (1958) (pile
driver injured on submersible radar installation).
The DiGiovanni case also conflicts with this Court’s
rationale behind McDermott International, Inc. v. Wilander, 498
U.S. 337 (1991) (worker need not perform transportation related
24
functions on board a vessel to be a seaman). In Wilander, this
Court recognized the concept of special purpose vessels:
In the early periods of maritime commerce,
when the oar was the great agent of
propulsion, vessels were entirely unlike those
of modern times and each nation and period
has had its peculiar agents of commerce and
navigation adopted to its own wants and its
own waters; and the names and descriptions
of ships and vessels are without number...
there are other functions besides these of
mere navigation, and they are performed by
men who know nothing of seamanship. .. .
498 U.S. at 345 (emphasis added). It is inconsistent for the
First Circuit to fail to recognize special purposes vessels where
this Court has recognized special purpose seamen. In the case
of Chandris, Inc. v. Latsis, _. U.S __, 115 S. Ct. 2172 (1995)
this Court allowed the jury to consider the time that an engineer
spent aboard a vessel in dry dock to be considered in determining
whether he had the requisite employment related connection to
a “vessel in navigation”.
In Wilander, supra this Court decided the issue of “who is a
seaman”. In Latsis, supra this Court decided the issue of the
requisite duration of a worker’s connection to a vessel in order
to be eligible for a seaman status; a definition of the phrase
“vessel in navigation” would remove the conflict among the
circuits and restore uniformity in maritime commerce.
——
7
Boston, Massachusetts 02210
(617) 261-0080
| 25
CONCLUSION
&
For these various reasons, this petition for certiorari should
; be granted.
3
| Respectfully submitted,
3
i
1 DAVID B. KAPLAN
Counsel of Record
THOMAS M. BOND
THE KAPLAN/BOND GROUP
A Attorneys for Petitioners
/ Boston Fish Pier
: West Building, Suite 304
] P.O. Box 1404
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la
APPENDIX A — OPINION EN BANC OF THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
DATED OCTOBER 10, 1996 IN MOREHEAD VY.
ATKINSON-KIEWIT, J/V, ET AL.
United States Court of Appeals
For the First Circuit
No. 94-1581
MARK MOREHEAD,
Plaintiff, Appeliant,
V.
ATKINSON-KIEWIT, J/V, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Bailey Aldrich,” Senior Circuit Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges.
* Of the First Circuit, sitting by designation.
2a
Appendix A
Thomas M. Bond, David B. Kaplan and The Kaplan/Bond
Group on brief for appellant.
Thomas E. Clinton, Robert E. Collins and Clinton &
Muzyka, P.C. on brief for appellees.
Myles W. McDonough and Sloane and Walsh on brief for
J.M Cashman, Inc. and Cashman, KPA, A Joint Venture, amicus
curiae.
October 10, 1996
OPINION EN BANC
CAMPBELL, Senior Circuit Judge. This appeal comes
before the en banc court following our vacating of an unpublished
panel decision in this case issued on February 6, 1996, affirming
the decision of the district court. On the day of the panel opinion,
another panel of this court handed down a decision construing
the federal statute underlying both appeals in a materially
different way. Rocco P. DiGiovanni, Jr. v. Traylor Bros. Inc.,
No. 94-1775. We vacated both opinions and granted rehearing
en banc so as to provide a consistent rule in this circuit pending,
at least, further instruction from the Supreme Court or Congress.
Plaintiff Mark Morehead, a harbor worker injured while
working on a construction barge, appeals from a judgment of
the district court dismissing his negligence action against
Atkinson-Kiewit, J/V (“A-K”), a firm that was both his employer
and the charterer of the barge. Morehead brought this action
under section 905(b) of the Longshore and Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.,
authorizing covered employees to sue the vessel as a third party
for injury caused by the negligence of the vessel. In its capacity
as Morehead’s employer, A-K is immune from tort actions
3a
Appendix A
brought by covered employees like Morehead. But as the bare
boat charterer of the barge on which Morehead was injured,
A-K is deemed also to be the statutory vessel owner: and it was
in this capacity that A-K was sued.
The case raises difficult questions of first impression in this
circuit as to the liability of a so-called dual capacity employer
under the LHWCA. We must decide whether A-K’s alleged
negligence occurred in its “employer” capacity (a Capacity
immune from suit), or rather was in its capacity as “vessel” (a
negligence action being authorized under section 905(b) against
a vessel as third-party). While the Supreme Court has endorsed
the bringing of section 905(b) negligence actions against a dual
capacity defendant in its vessel owner capacity, the Court has
yet to define, in such a case, the point at which employer
responsibility ends and vessel responsibility begins. Nor has the
Court decided to what extent principles laid down in negligence
actions brought by longshore workers against a vessel owned
by a third-party apply to claims by non-stevedoring contractor
harbor workers brought against a vessel owned by their own
employer.
I. Background
Mark Morehead was employed by A-K, a joint venture
formed between Guy Atkinson Co. and Kiewit Eastern to
complete the construction of the Jamestown Bridge spanning
Narragansett Bay in Rhode Island. In order to transport materials
and equipment around the bay to the work sites, A-K bare boat
chartered several barges. The barges involved in this case, the
CHER 106 and the HUGHES 707, were flat deck barges —
floating platforms bare of structures or equipment. A-K also
leased two tugs from Woods Hole Towing Co. to transport the
4a
Appendix A
barges where needed. The tugs themselves were crewed by
Woods Hole employees. '
A-K hired carpenters from a local union to build the bridge.
Their responsibilities included cutting timbers and steel and
setting up concrete forms for pours. As the local unions
requirements prevented the tug captain or crew from handling
the lines on the barges, some carpenters also tended the lines on
the barges as “scowmen.” Morehead’s regular duties included
both carpentry and linehandling.
On January 29, 1990, Morehead and another carpenter/
scowman, Steven Breault, were untying the HUGHES 707 from
the CHER 106. A barge was to be surveyed in connection with
her going off hire. A tug stood nearby. The barges were not at
this time carrying materials or equipment, but rather were set
off on the north side of the Davisville Pier. Breault threw a heavy
line to Morehead, who, in attempting to catch it, stepped
backwards into an open hatch which was flush with the deck on
one of the barges. The district court noted conflicting testimony
as to which barge Morehead was on when injured,” but concluded
1. Although Woods Hole was originally named as a defendant in this
action, the district court granted its motion for summary judgment against
Morehead, who has not appealed from that decision. Consequently, Woods
Hole is no longer a party.
2. The district court did not definitively find which barge Morehead
was on at the time of the accident. The court found “more likely” that
Morehead was on the HUGHES 707 and Breault was on the CHER 106, but
wrote: “In either event, however, the court would find a single open hatch
... insufficiently obvious. There would seem a presumption that an unmarked
18 inch opening on an otherwise solid deck is a failure of a reasonably safe
proffer to one expected to walk thereon. The court would therefore find the
barge, whichever one it was, unseaworthy, but under the statute (33 U.S.C>
§ 905(b))this is irrelevant.”
Sa
Appendix A
that in any event, the single open hatch was insufficiently
obvious. Breault testified that he had opened the hatch on the
HUGHES (which he named as the barge to be surveyed) a few
days before the accident, because A-K was preparing for an off-
hire survey before returning the barge to the owner. Breault
testified that a supervisor carpenter had told him to open the
hatch.
Morehead filed a complaint against A-K and Woods Hole
on April 22, 1991, alleging Jones Act negligence, unsea-
worthiness, maintenance and cure, and negligence under section
905(b) of the LHWCA. Following the denial of A-K’s motion
for summary judgment, Morehead voluntarily withdrew all
claims except his claim for negligence under the LHWCA. A
bench trial commenced on April 11, 1994. On April 29, 1994,
the district court issued its Findings and Order dismissing
Morehead’s complaint and A-K’s cross-claim against Woods
Hole. It wrote:
[T]he court does not find it negligence of
[appellee] viewed in its capacity as pro hac
vice owner. Rather, it appears to be a
temporary condition created by it solely in
its capacity as charterer. . . .
These two capacities are legally separate,
even though they be the same individual.
This passage confusingly distinguishes between an owner pro
hac vice and a bare boat charterer (the statute includes both in
its definition of “vessel,” see 33 U.S.C. § 902(21)). The parties
agree that the district court actually meant to distinguish between
the appellee as vessel and as employer. We also interpret the
district court’s order in that fashion.
6a
Appendix A
Judgment was entered on May 4, 1994 in A-K’s favor. This
appeal followed.
II. Standard of Review
A district court’s fact-based findings relative to negligence
are reviewable only for clear error. See, e.¢_, Levene v. Pintail
Enters., 943 F.2d 528, 535-36 (Sth Cir. 1991,, cert. denied, 504
U.S. 940 (1992). However, the question of whether the district
court applied the proper standard of care is one of law, subject
to de novo appellate review. See, e.g., Keller v. United States,
38 F.3d 16, 22-23 (1st Cir. 1994); Elberg v. Mobil Oil Corp.,
967 F.2d 1146, 1149 (7th Cir. 1992).
The district court did not explain the criteria it applied in
deciding what duties of care to attribute to A-K in its separate
capacities, respectively, as LHWCA employer and as owner
(charterer) of the barge. Rather, it simply cited along with its
conclusions existing precedent relative to section 905(b) liability,
e.g., Scindia Steam Navigation Co. v. De los Santos, 451 U.S.
156 (1981), and Castorina v. Lakes Bros. S.S., 758 F.2d 1025
(Sth Cir.), cert. denied, 474 U.S. 846 (1985). The circumstances
and context of these and related cases, however, are too removed
for their mere citation to reveal the analysis that the district court
applied in this case. Nor does the language of the LHWCA
provide clear guidance. We can only hope that the Supreme Court
will eventually elucidate the standards applicable to dual status
employers of harbor workers in circumstances comparable to
these. Until then, we do our best to outline the legal principles
that, we believe, govern the facts presented here. Under those
principles — and giving due deference to the district court’s
authority as fact finder — we affirm the judgment below.
Ta
Appendix A
III. “Vessel” Status
We briefly discuss first a less troublesome issue. The district
court provisionally assumed, without deciding, that the barge
on which Morehead was injured was a “vessel” within the
LHWCA. Section 905(b) permits an LHWCA employee to sue
in negligence only “[i]n the event of injury . . . caused by the
negligence of a vessel.” Section 902(21) of the LHWCA defines
“vessel” to include a bare boat charterer among the parties that
may be held liable under section 905(b). A-K does not contest
its status as bare boat charterer. Nor has it asserted on appeal
that the HUGHES and CHER were not themselves “vessels”
under the LHWCA. See, e.g., Kathriner v. Unisea, Inc., 975
F.2d 657, 662 (9th Cir. 1992) (to determine whether a structure
is a “vessel” under the LHWCA, most courts have applied the
general definition in 1 U.S.C. § 3 of a “watercraft or other
artificial contrivance used, or capable of being used, as a means
of transportation on water”); accord DiGiovanni v. Traylor Bros.,
830 F. Supp. 106, 108-09 (D.R.I. 1993). The LHWCA definition
of “vessel” is significantly more inclusive than that used for
evaluating seaman status under the Jones Act.? For present
purposes, we may assume that both barges were vessels under
the LHWCA, for the negligence of which a section 905(b) claim
may be brought.
3. See Generally Chandris. Inc. v. Latsis, 115 S. Ct. 2172, 2192
(1995)(to qualify as a seaman under the Jones Act, “a maritime employee
must have a substantial employment-related connection to a vessel in
navigation”); Kathriner, 975 F.2d at 659-63 (applying tests of “vessel” under
Jones Act and LHWCA). Plaintiff withdrew his maritime claims, including
the claim of Jones Act negligence.
—-
8a
Appendix A
IV. Statutory Framework
The LHWCA establishes a comprehensive federal worker’s
compensation scheme which holds employers liable, irrespective
of fault, for securing the payment of the prescribed compensation
to qualified maritime employees injured in the course of their
employment. 33 U.S.C. § 904.‘ This liability of employers is
termed “exclusive and in place of all other liability of such
employer to the employee.” Jd. § 905(a).
Section 905(b) of the Act authorizes certain covered
employees to bring an action against the vessel as a third party
if their employment injury was caused by the negligence of the
vessel.° But employees may no longer sue the vessel on a strict
4. Section 904 provides in relevant part: “(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 . . . . (b) Compensation
shall be payable irrespective of fault as a cause for the injury.” 33 U.S.C.
§ 904.
A statutorily covered employee is “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,” except “a master or member of a crew of any
vessel” and other limited categories of workers. Jd. § 902(3). ~~
5. Section 905(b) provides:
In the event of injury to a person covered under this
chapter 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 in accordance with
(Cont'd)
ALES
0A ae ar EN ata SOP ARLE liad A iad OH yh
9a
Appendix A
liability theory for her “unseaworthiness,”® Congress having
eliminated the latter as a remedy for longshore and harbor
workers in the 1972 Amendments to the LHWCA. The 1972
(Cont'd)
the provisions of section 933 of this title, 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 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, owner
pro hac vice, agent, operator, or charterer) or against
the employees of the employer. 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
chapter.
33 U.S.C. § 905(b).
6. See 33 U.S.C. § 905(b). Unseaworthiness is a maritime remedy that
was established “simply by showing that some condition or appurtenance
on board the vessel at the time of the accident was unreasonably hazardous,
even if the stevedore-employer was the sole cause of the hazard.” Keller, 38
F.3d at 23 (citing Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 (1946)).
10a
Appendix A
Amendments require employees to show fault of the vessel, bar
a vessel’s obtaining of indemnification from the employer, and
have increased the worker’s compensation recoverable from an
employer. See Addison v. Bulk Food Carriers, Inc., 489 F.2d
1041, 1042 (1st Cir. 1974). Focusing on longshore workers who,
to date, have been the occupational group chiefly discussed in
Supreme Court cases under the LHWCA, the Court described
these changes as designed “to shift more of the responsibility
for compensating injured longshoremen to the party best able
to prevent injuries: the stevedore-employer.” Howlett v. Birkdale
Shinning Co., 114 S. Ct. 2057, 2063 (1994); see also Keller, 38
F.3d at 23.
In the 1984 Amendments to the LHWCA, Congress further
narrowed the availability of negligence actions by certain
categories of harbor workers against a vessel in circumstances
where the employer was also the owner of the offending vessel.
In these so-called “dual capacity” cases, Congress barred
employees providing “shipbuilding, repairing, or breaking
services” from suing the employer-vessel owner for negligence
in any capacity. 33 U.S.C. § 905(b). The Amendments did not
purport to prohibit LHWCA employees other than in the
described categories from suing for negligence in dual capacity
cases. See H.R. Rep. No. 98-570(1), 98th Cong., 2d Sess.,
reprinted in 1984 U.S.C.C.A.N. 2734, 2741 (hereafter 1984
U.S.C.C.A.N.) (“The Committee intends that this language [in
§ 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.”); cf. Guilles v. Sea-Land Serv., Inc., 12 F.3d 381,
386 (2d Cir. 1993) (affirming relief cook’s judgment against
negligent employer-vessel owner and explaining that “[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
i iar
aint at Rts Whey sees end o'e
lla
Appendix A
chose to do so”); Gay v. Barge 226, 915 F.2d 1007, 1010 (Sth
Cir. 1990) (“[T]he § 905(b) bar is specific to the occupations
listed: shipbuilders, ship repairers and ship breakers.”’).
The Supreme Court had previously interpreted section
905(b) to permit covered employees to bring third-party
negligence actions against their employer qua vessel owner. See
Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-32
(1983) (asserting that if Congress had intended to exempt
employer-vessel owners from negligence suits, then the sentence
in section 905(b) barring recovery from them where fellow
longshore workers caused the injury would have been
unnecessary). As Morehead’s occupational category does not
fall within any of those Congress expressly excepted in the 1984
Amendments, supra, Jones & Laughlin would appear under
current construction of the statute to allow Morehead to bring a
third-party negligence action against A-K in its vessel Capacity.’
To prevail, however, Morehead has to show that any negligence
on A-K’s part is attributable to it as vessel rather than as
Morehead’s insured LHWCA employer.
V. Defining the Vessel’s Duty of Care: The Supreme Court
Cases
As Jones & Laughlin allows Morehead to bring a third-party
negligence action against a vessel owner even though the latter
7. The parties have not disputed on appeal that Morehead is a statutorily
covered employee of a statutorily covered employer. As a harbor worker
with carpentry and linehandling duties, Morehead meets the Statutory
definition of a covered employee under section 902(3) and does not fall within
any of the categories of workers expressly prohibited from suing under section
905(b).
12a
Appendix A
is simultaneously his statutorily-immune employer, we need to
find the principles for determining whether the alleged acts of
negligence — the open hatch and failure to warn — are
attributable to A-K qua vessel owner rather than qua employer.
The Supreme Court has indicated that Congress left to the courts
the task of defining the vessel’s duty of care. See Howlett, 114
S. Ct. at 2063 (“Because Congress did not ‘specify the acts or
omissions of the vessel that would constitute negligence,’ the
contours of a vessel’s duty to longshore workers are ‘left to be
resolved through the “application of accepted principles of tort
law and the ordinary process of litigation.” ’ ”) (citing Scindia,
451 U.S. at 165-66).
In Scindia Steam Navigation Co. v. De los Santos, 451 U.S.
156 (1981), the Supreme Court considered the duty of care that
a vessel owner owed to an injured longshore worker who was
employed by an independent stevedoring firm. For this common
triangular relationship at least — vessel, stevedore, and longshore
worker® — the Court held that limiting the vessel’s duty of care
so as to put the chief responsibility upon the independent
stevedore was consistent with Congress’ intent to permit third-
party negligence actions against the vessel but to eliminate the
vessel’s no-fault liability (the “unseaworthiness” claim). In
Howlett, a case that also involved a longshore worker suing an
independent vessel, the Court restated the vessel’s limited
residual duties:
8. In Howlett, the Court suggested that this relationship was the typical
one in the longshoring business. See Howlett, 114. S. Ct. at 2062 (“The injured
longshoreman’s employer — in most instances, an independent stevedore,
see Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 (1979)
— must pay the statutory benefits regardless of fault, but is shielded from
any further liability to the longshoreman.”) (citations omitted).
13a
Appendix A
The first, which courts have come to call the
“turnover duty,” relates to the condition of
the ship upon the commencement of
stevedoring operations... . The second duty,
applicable once stevedoring operations have
begun, provides that a shipowner must
exercise reasonable care to prevent injuries
to longshoremen in areas that remain under
the “active control of the vessel.” .. . The
third duty, called the “duty to intervene,”
concerns the vessel’s obligations with regard
to Cargo operations in areas under the
principal control of the independent
stevedore.
Howlett, 114S. Ct. at 2063 (citations omitted) (emphasis added).
This court recently applied these duties in Keller v. United
States, 38 F.3d 16 (1st Cir. 1994), a case also involving the
triangular relationship of vessel, stevedoring contractor, and
longshore worker. We described two duties of a vessel prior to
“turnover”: the “duty to warn” and the “duty of safe condition.”
Id. at 23-24. We further described three “continuing” duties of
care:
First, the vessel owner might remain
under such a duty were it to retain actual
physical control or custody of a portion of
the vessel, or participate in stevedoring
operations. Scindia, 451 U.S. at 167, 101 S.
Ct. at 1622... . Second, a duty to intervene
might attach in the event the vessel owner
were to acquire actual knowledge that
l4a
Appendix A
“unsafe conditions” had developed in the
vessels appurtenances since turnover, that the
stevedore-employer will not address the
unsafe condition, and that the stevedore’s
decision not to remedy the developing hazard
was “obviously improvident” in the
circumstances. /d., at 174-75, 101 S. Ct. at
1625-26. Third, even absent actual control,
~ participation or knowledge, a post-“turnover”’
duty may arise if the vessel owner was
obligated, by contract, statute or custom, to
monitor stevedoring operations for the
purpose of detecting and remedying unsafe
conditions. /d. at 172, 101 S. Ct. at 1624-25.
Id. at 32.
Keller affirmed a judgment that an independent vessel owner
had breached neither its turnover nor its continuing duties to a
longshore worker who had fallen from a ladder on board the
vessel. We ruled that the district court had not erred in relying
on testimony based on industry standards, which indicated
fulfillment of the turnover duty. We also found no breach of a
continuing duty of the vessel, where the allegedly dangerous
condition developed during cable loading operations which were
under the stevedore’s control.
As did the Supreme Court in Scindia, this court noted the
independent stevedore’s greater skill and expertise relative to
the vessel’s, making the former better positioned than the vessel
to prevent employee injury, and the traditional stevedoring
warranty to perform competently. See id. at 29-30; see also
Howlett, 114 S. Ct. at 2065 (“The rule relieving vessels from
this general duty [to exercise reasonable care to discover
15a
Appendix A
dangerous conditions that develop] rests upon ‘the justifiable
expectations of the vessel that tne stevedore would perform with
reasonable competence and see to the safety of the cargo
operations.’ ”) (citation omitted); Scindia, 451 U.S. at 172 (“[the
1972 Amendments] did not undermine the justifiable
expectations of the vessel that the stevedore would perform with
reasonable competence and see to the safety of the cargo
operations”). Further supporting the vessel owner’s justifiable
reliance on the stevedore is that the latter is “subject to detailed
legislative and administrative prescriptions for affording its
workers a ‘safe’ workplace.” Keller, 38 F.3d at 24 (citing 33
U.S.C. § 941 and accompanying regulations, 29 C.F.R.
§§ 1918.1-1918.106, § 1918.25, and Scindia, 451 U.S. at 170).
In Scindia and Howlett the Supreme Court, as noted, outlined
a vessel owners duties of care relative to a longshore worker
employed by an independent stevedore.’ But the Supreme Court
has not yet had occasion to analyze the vessel’s duties in a dual
capacity case.'° Nor has the Court considered to what degree its
Scindia analysis applies to non-longshoring harbor workers,
whose duties and modus operandi often differ considerably from
those of longshore workers.'' The Court has said, though, that
9. Other courts have applied Scindia duties to LHWCA-covered
employees other than longshore workers in the familiar tripartite context.
See, e.g., Elberg, 967 F.2d at 1149-50 (welder); Teply v. Mobil Oil Corp.,
859 F.2d 375, 377 (Sth Cir. 1988) (worker at barge-accessible oil well).
10. In Jones & Laughlin, the negligence of the dual capacity defendant
qua vessel had been conceded.
11. Longshore workers such as those in Scindia typically load and
unload cargo ships that are operated full-time by a master and crew. Vessel
negligence can often be distinguished from stevedore negligence by
(Cont'd)
l6a
Appendix A
“lo]f course, [section 905(b)] does make it clear that a vessel
owner acting as its own stevedore is liable only for negligence
in its ‘owner’ capacity, not for negligence in its ‘stevedore’ [the
insured employer] capacity.” Jones & Laughlin, 462 U.S. at 531
n.6.
How to distinguish between vessel owner negligence and
employer negligence — where the same entity is both vessel
owner and employer — is key here, because Morehead’s statutory
right to sue is solely for injury caused by the vessel negligence
of a vessel as third-party. For other work injuries within the
scope of his employment, the LHWCA expressly provides that
he must accept the worker’s compensation prescribed under the
LHWCA as “exclusive and in place of” all other employer
liability. 33 U.S.C. § 905(a).
A further matter complicates this case: as the defendant has
two capacities, so too, it might be said, does the plaintiff.
Morehead was a carpenter, but was hired to perform both
carpentry and scowmen’s duties. A-K did not employ a separate
(Cont'd)
determining to what extent the dangerous condition was caused, or allowed
to persist, by reason of the neglect of the vessel’s crew rather than of the
stevedoring employees. Harbor workers, however, may work (as here) on
construction barges that are moved about by tugs and have no fully-dedicated
professional crew as such. As part of their employment, the harbor workers
may do whatever is needed from time to time to tend lines and service the
barges, besides performing construction duties as carpenters, electricians,
or the like. Thus, assessing what responsibilities fall within the purview of
the vessel’s duty of care, as distinguished from the employers, can be an
elusive quest.
Sinn ig Se Nel ana Y a DIRE Nec 26 Eth AE RIOR NORE BT AB a 2 at Fete Sk bed?
5 i
Py ee, Pe eee ee
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4
4
+
3
3
17a
Appendix A
crew on its barges.'? As we will discuss further below, this
“double dual capacity” aspect of the case is a factor to be
considered in determining whether negligent acts are properly
attributable to a defendant as vessel.'?
12. As noted, the tugs that towed the barges were captained and crewed
by employees of Woods Hole, which supplied the tugs. These employees did
not handle the lines on the barges; under union rules, only carpenters/
scowmen employed by A-K (such as Morehead) did.
13. This mix of responsibilities might, in other cases, expand the range
of possible remedies available to an injured emplovee, who must then choose
between the mutually exclusive regimes of the LHWCA and Jones Act. See
Chandris, 115 S. Ct. at 2183-84 (citing McDermott Int'l, inc. v. Wilander,
498 U.S. 337, 347 (1991)). In Southwest Marine, Inc. v. Gizoni, 502 U.S. 81
(1991), the Supreme Court held that a shipyard rigging foreman — who
har.dled lines connecting floating platforms to vessels under repair — was
not precluded as a matter of law from seeking a tort remedy under the Jones
Act merely because ship repairers are among those jobs specifically
enumerated under the LHWCA. See id. at 89 (“By its terms the LHWCA
preserves the Jones Act remedy for vessel crewmen, even if they are employed
by a shipyard. A maritime worker is limited to LHWCA remedies ouly if no
genuine issue of fact exists as to whether the worker was a sean.an under the
Jones Act.”).
Morehead withdrew his Jones Act claim, presumably because he did
not believe he could establish Jones Act seaman status. Nonetheless,
Morehead has attempted to focus our attention on the vessel-type
responsibilities that Breault performed in the period before the injury, as
discussed infra. While an emphasis on vessel-type duties may be appropriate
for the fact-specific inquiry into seaman status, we place little weight on
this attempt to bifurcate vessel and construction activities when these workers
were hired to perform both. The definition of a covered employee under the
LHWCA excludes “a master or member of a crew of any vessel.” 33 U.S.C.
§ 902(3). It seems inconsistent with this exclusion for Morehead to buttress
his claim under the LHWCA with arguments portraying a fellow employee,
Breault, as if he were a member of the crew of the vessel. See infra.
18a
Appendix A
VI. Lower Court Precedent
While the Supreme Court has said little about dual capacity
cases beyond giving approval to the suing of dual capacity
defendants in their vessel owner capacity, some circuits have
decided cases similar to ours. They have asked whether the
alleged negligence was due to the defendant qua employer or
qua vessel, with recovery allowed only in the latter instance.
And, principles borrowed from Scindia have been applied to
harbor workers as well as longshore workers.
Applying Scindia to a dual capacity defendant raises
questions even in the longshoring context. For example, if a
defendant is aware of a defect in the work area as stevedore
employer, should such awareness also be attributed to it as vessel
owner? And as we note supra, Scindia and Keller emphasized a
vessel owner’s reliance upon the presumed expertise of the
stevedore, an independent contractor. Where the vessel owner
is also the stevedore, is it reasonable to attribute such reliance?
Concerns of this nature led the Second Circuit in Fanetti v.
Hellenic Lines Ltd., 678 F.2d 424 (2d Cir. 1982), cert. denied,
463 U.S. 1206 (1983), to indicate that a longshore worker’s claim
against a dual capacity defendant would be analyzed differently
from a claim against a separate shipowner brought by the
employee of an independent stevedore. In Fanetti, a longshore
worker was injured on deck by an unsafe condition. The dual
capacity defendant argued that 1) in its role as employer-
stevedore, it was primarily responsible for the safety of the
workplace, and 2) as vessel owner, it should be able to rely upon
its expertise as stevedore, thereby avoiding liability as vessel
for the negligence.
19a
Appendix A
The Second Circuit rejected the defendant’s attempt to
escape liability in negligence as vessel by seizing its “employer
hat.” Relying on a dissent by Judge Friendly in Canizzo v. Farrell
Lines, Inc., 579 F.2d 682, 687 (2d Cir.) (Friendly, J., dissenting),
cert. denied, 439 U.S. 929 (1978), the court of appeals ruled
that a vessel assumes a greater duty of care when there is no
independent employer responsible for workplace conditions,
upon whom the vessel owner may rely to oversee the safety of
the workplace on board. See Fanetti, 678 F.2d at 428 (citing
Canizzo, 579 F.2d at 689-90).
Rearranging duties of care as in Fanetti raises serious
problems, discussed hereafter, by enlarging an employers tort
liability beyond the purposes of the 1972 Amendments. Cf.
Howlett, 114 S. Ct. at 2063. Fanetti, moreover, was decided
before Jones & Laughlin was handed down in the Supreme Court.
We de not think that the Second Circuit today would endorse
Fanetti’s broadened duty of care, given the Supreme Court’s
remark “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.
This comment suggests that the Court expected the limited vessel
liability in Scindia to carry over to dual capacity situations as
well. No later case from the Second Circuit, nor from any other
circuit, has been called to our attention following Fanetti’s
enlargement of a vessel’s duty in a dual capacity situation."* Cf.
14. Fanetti might have reached the same result of vessel liability
without applying a broader duty of care. The defendant did not dispute that
the vessel’s crew created the hazard while performing work unrelated to
longshoring operations. See Fanetti, 678 F.2d at 426. In this situation, the
defendant qua vessel arguably had active control over the crew and knew or
should have known about the injury-causing actions, making it liable even
under the Scindia standards.
20a
Appendix A
Guilles, 12 F.3d at 383, 387 (a recent Second Circuit decision
citing Fifth Circuit authority contrary to Fanetti and ruling only
that a valid cause of action under section 905(b) existed, where
the parties had stipulated to the vessel’s negligence). Whether
or not termed dicta, we do not feel free to overlook the Court’s
statement in Jones & Laughlin.
Contrary to Fanetti, the Fifth Circuit, which has decided a
great number of LHWCA cases, has allocated the same vessel
duties of care to dual and single capacity defendants. It regards
this approach as in keeping with the Supreme Court’s limiting
of a vessel’s duty of care (e.g., Scindia and Jones & Laughlin),
and with Congress’ intent to provide injured workers the same
remedies, regardless of whether their employer or another
happens to be the legal owner of the vessel.'*
15. Other courts have followed suit. See, e.g., Halpin v. Atkinson-
Kiewit, J.V., 894 F. Supp. 486 (D. Mass. 1995) (applying Scindia duties and
denying defendant’s motion for partial judgment on the pleadings);
DiGiovanni v. Travlor Bros., 855 F. Supp. 37 (D.R.1. 1994), appeal docketed,
No. 94-1775 (1st Cir. July 27, 1994) (finding no violation of Scindia duties
where hazard was obvious following “turnover” of the vessel, defendant as
vessel lacked “active control” over or knowledge of leak from equipment
placed aboard for employment operations, and the circumstances did not
give rise to a duty to intervene); Koernschild v. W.H. Streit, Inc., 834 F.
Supp. 711 (D.N.J. 1993) (applying Scindia duties and denying summary
judgment to the defendant where factual dispute existed concerning the
plaintiff’s awareness of the hazard); Coats v. Luedtke Eng’g Co., 744 F.
Supp. 884 (E.D. Wisc. 1990) (deeming “employer” responsible for providing
employee a safe passageway to his jobcen essel, and granting summary
judgment to the defendant given its lack — “w ve control” as vessel over a
condition off-board the vessel).
2la
Appendix A
The seminal Fifth Circuit case was Castorina v. Lykes Bros.
S.S., 758 F.2d 1025 (Sth Cir.), cert. denied, 474 U.S. 846 (1985).
There, a longshore worker exposed to asbestos during cargo
operations alleged that his employer-vessel owner knew of the
harm qua vessel and failed to make the vessel safe. The Fifth
Circuit stated that the LHWCA compensation scheme “requires
us to separate the negligence of the shipowner and that of the
stevedore, even when the shipowner performs its own stevedoring
activities.” Jd. at 1033. Noting that the alleged harm had arisen
during stevedoring activities, the court refused to impute any
knowledge of this danger by the employer to it as vessel. It
explained:
To impute this knowledge to a shipowner-
employer would be to hold it liable in tort
for damages arising from its negligence as
stevedore, and effectively to eliminate the
exclusivity provisions of sections 905(a) &
(b). This result is contrary to the language
and purpose of the Act as amended. We
therefore hold that the duty owed by a
shipowner to a longshoreman under section
905(b) is that established by Scindia and its
progeny; this duty is neither heightened nor
diminished when the longshoreman is
employed directly by the vessel.
Id.; accord Tran v. Manitowoc Eng’g Co., 767 F.2d 223, 228
(Sth Cir. 1985).
On the facts of Castorina, it was relatively easy to apply
the Scindia standard to the shipowner-employer. In a later case,
the Fifth Circuit applied Scindia in a more complex situation
22a
Appendix A
involving a harbor worker. In Levene v. Pintail Enters., 943 F.2d
528 (Sth Cir. 1991), cert. denied, 504 U.S. 940 (1992), the injured
employee was a heavy equipment operator who performed other
maritime tasks as well. A captain had instructed Levene to untie
another owner’s barge, which blocked access to the particular
barge they had been instructed to pick up. Levene was injured
on the other owner’s barge, where grease and scrap materials
were present on the deck. See id. at 530.
Applying the Scindia duty of turnover and the duty arising
from active control over a dangerous condition, the Levene court
rejected the employee’s claim. The court explained that Scindia
did not mandate “extending the duty of a shipowner to protection
against hazards on another ship.” Jd. at 534. “[W]e decline to
fashion a general standard of ‘reasonable care’ that would require
a shipowner to protect against any and all hazards a long-
shoreman might encounter in the course of his work.” Jd. Further,
the court did not view “the fleeting contact between Pintail [the
employer-vessel owner] and the BB-242 [the separate owner’s
barge] as the kind of control that could result in a finding of
liability.” Jd. at 535. It noted that the duty arising from active
control over a hazardous condition may be triggered when the
dangerous condition is on the vessel itself. See id. (discussing
Masinter v. Tenneco Oil Co., 867 F.2d 892, 896-97 (Sth Cir.
1989), a non-dual capacity case in which the vessel crew was
solely responsible for placing a stairway in a way that caused
injury to a worker, and the vessel was “contractually bound to
conduct the drilling operations and remained in control of the
vessel to effectuate this obligation”). Even though the captain
“temporarily was in ‘command’ ” of both the vessel and the
separate owner’s barge, the court found that this did not rise to
the level of active control required. /d.
23a
Appendix A
VII. Resolving This Case
We agree with the Fifth Circuit, for similar reasons, that
the duties of care described in Scindia should be applied in dual
Capacity cases insofar as the facts allow. To do so, 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. A court may sometimes be assisted in this process
by the defendant’s internal employment arrangements assigning
certain personnel to the “vessel” side of its operation. On
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. Nonetheless, Scindia’s general
approach, at least, can be followed and, in many cases, some or
all of its express analysis may be useable.
The statutory language and the legislative history of the 1972
and 1984 Amendments plainly evidence Congress’ intent that
the workers compensation scheme be the primary remedy for
all covered workers, regardless of an employer’s commercial
practice in regard to vessel ownership. See 33 U.S.C. § 905(a)
(exclusiveness of employer’s liability); 1984 U.S.C.C.A.N. at
2740 (“In the Committee’s view, the Longshore Act should be
the primary source of compensation for covered workers who
are disabled or who may die as a result of a job-related injury or
disease.”) (emphasis supplied); H.R. Rep. No. 92-1441, 92d
Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 4698, 4705
(“[T]he 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
24a
Appendix A
Committees 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.”) (emphasis supplied). The 1972
Amendments carefully balanced the concerns of employers,
vessels, and covered workers. We are not disposed to upset that
balance 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.
As already observed, Scindia will sometimes afford less
direct guidance on those duties owed to harbor workers than it
does on those owed to longshore workers. Courts will need to
decide, on a case-specific basis, whether the harbor worker’s
employment arrangement sufficiently resembles that in Scindia
to make particular specifics germane.
Here, the employment arrangement is sufficiently analogous
to make Scindia a useful guide. The Scindia Court reasoned that
once longshore workers came aboard and began carrying out
their cargo duties under a stevedores supervision, the vessel itsclf
had no general duty to exercise reasonable care to inspect for
unsafe workplace conditions; rather, it could rely on the
longshore worker’s employer to do so. See Scindia, 451 U.S. at
172. Here, A-K hired harbor workers through the local
carpenters’ union and, as their employer, supervised them as
they tended the barges, handling the lines and carrying out
construction activities thereon. Both types of activities —
construction and scowmen’s work — were assigned to them and
were performed for A-K qua employer. Workers like Morehead
received their daily instructions from A-K’s carpenter-foremen,
while A-K’s project safety manager met periodically with them
25a
Appendix A
to discuss site-specific safety issues. Therefore, Scindia’s
principle of limited liability of the vessel sensibly and logically
applies, because the employees effectively assumed control of
the barges working under A-K in its capacity as their employer.
A-K qua shipowner had no separate captain and crew assigned
to the barge. The allegedly negligent conditions (the open hatch
and the absence of warnings) were not attributable to the errors
of separate maritime agents acting specifically for the vessel.
Rather the alleged acts of negligence were those of fellow harbor
workers acting within the scope of their daily employment for
the employer. Cf. 33 U.S.C. § 905(b) (prohibiting liability of an
employer-vessel owner for acts “caused by the negligence of
persons engaged in providing stevedoring services to the vessel’’).
Morehead does not assert any breach of the Scindia
“turnover” duty (e.g., that A-K, as vessel owner, turned over the
barge to the harbor workers knowing or with the duty to have
known, of some defect in the barge that later caused injury).
Morehead argues only that we should deem that A-K as vessel
violated duties it owed him because, at the time he was injured,
A-K as vessel (rather than A-K as employer) is asserted to have
had “active control” over or “actual knowledge” of the open
hatch. Cf. Howlett, 114 S. Ct. at 2063 (noting appellant confined
arguments to breach of turnover duty to warn); Elberg, 967 F.2d
at 1150 (noting appellant confined arguments to breach of duty
to intervene). Fquating employment for worker’s compensation
purposes solely with construction activity, he asserts that no
construction purpose, hence no employment purpose, was being
pursued at the time of his injury. He draws support from the
district court’s findings that the barges were set alongside the
pier and were not carrying construction equipment. Morehead
emphasizes that A-K had instructed Breault to open the hatch to
air the barge out so that A-K could exercise what Morehead
26a
Appendix A
argues was a vessel! function having a marine surveyor examine
the barge before returning it to the owner. He further claims that
A-K’s safety manager or other carpenter foremen knew or shou!d
have known that the open hatch was a potentially hazardous
condition. Resting on purported agency principles, Morehead
asks us to assign these employees’ acts to A-K in its vessel
capacity, on the theory that A-K in its vessel rather than employer
capacity had control over or knowledge of the open hatch and
the failure to warn about it.
A-K responds that Breault was performing employment
duties when he opened the hatch and when he threw the line to
Morehead before the accident. Like Morehead, Breault had been
hired both for carpenter and scowman duties. As typical in the
case of harbor workers, as distinct from land-based carpenters,
the men were expected as part of their employment duties to
lend a hand with supporting maritime chores as well as to pursue
their particular construction trade. A-K maintains that its “active
control” over or knowledge about the open hatch into which
Morehead fell is therefore attributable to it as employer, not as
vessel since the hatch was opened (presumably by Breault) and
the line thrown in the course of harbor worker duties which both
men were regularly hired to perform.
We agree with A-K that, for present purposes, the barges
tended by its carpenters/scowmen were operated within A-K’s
control and knowledge qua employer. The barges, which were
Breault and Morehead’s workplace, can be analogized to the
areas of a vessel taken over by longshore workers in the Scindia
setting. Under the princ iples of that case, the stevedore — or, in
a dual capacity case, the employer in a stevedore capacity — is
ordinarily liable for the safety of the workplace and for any
injuries that occur. The vessel, or the employer in its vessel
27a
Appendix A
capacity, is not implicated except in the unusual circumstance
that the vessel itself continues to exercise active control over
the work area.
We recognize that a competing analysis is possible, which,
however, we reject. A court could make an attempt to ascribe
Breault’s and Morehead’s specific activities relative to
Morehead’s injury either to their employer or to the vessel,
depending on how the court chose to classify the objectives that
those activities were thought to serve. One could inquire whether
the hatch was opened to “help” the vessel (i.e., to air it in
preparation for returning it to the owner) rather than in
furtherance of some construction activity. If so, the defendant
qua vessel might be held liable for any negligence. Such an
analysis, however, would involve courts in slippery semantical
debate. Is an accident while tying up a barge at a construction
site in furtherance of a “constructions objective or a “vessel”
objective? If both objectives are being served, which
predominates? And how does one square the fact that the
employees here were hired by the employer for scowmen not
just carpenter duties? Harbor workers are, after all, by definition,
employees whose paid duties include maritime components.
As noted, the statute makes the employer’s worker’s
compensation liability “exclusive and in place of all other liability
...." 33 U.S.C. § 905(a). The legislative history and the Court’s
precedents since 1972 make worker’s compensation the primary
remedy for an injured employee. The exception in section 905(b)
for third-party negligence, narrowed in 1984,"* explicitly requires
16. Cf. Roach v. M/V Aqua Grace, 857 F.2d 1575, 1580 (11th Cir. 1988)
(“While this [1984] amendment does not disturb the holding of Jones &
Laughlin Steel Corp., it does indicate a Congressional intent to limit
invocation [sic] of the dual capacity doctrine under the Act.”).
28a
Appendix A
a finding of vessel fault. We would be disregarding Congressional
intent and might even be returning in the direction of the Sieracki
doctrine which did not require such a showing, see supra n.6, if
we were to attribute some of the regular duties that a harbor
worker is employed to perform to the vessel, because of their
speculative seaman-like character, and only the residue to the
employer. This approach would greatly expand a defendant’s
liability qua vessel in a work arrangement not too different from
that in Scindia, i.e., one where the employees have effectively
taken over the vessel to carry out their employment duties under
their employer’s supervision. A similar expansion of liability
would follow from too easily assigning any knowledge acquired
by A-K employees in the regular course of employment (such
as the carpenter foremen or worksite safety manager) to A-K in
a vessel capacity. Neither the statute nor case law supports such
an approach, which, on the present facts, would leave this
worker’s compeiisation statute as a strange hybrid combining
mandated compensation coverage with a widespread license for
covered employees to sue because of the negligence of their
supervisors and fellow employees within the workplace.
One of the essential purposes of the 1972 and 1984
Amendments was to provide employees and employers with a
greater degree of certainty as to the coverage in effect. The
legislative history of the 1984 Amendments documents this
concern:
[T}he situation in which a worker may be
covered at one time, and not covered at
another, depending on the nature of the work
which the worker is performing at the time
of the injury must be avoided since such a
result would be enormously destabilizing, and
29a
Appendix A
would thus defeat one of the essential
purposes of these amendments.
1984 U.S.C.C.A.N. at 2736-2737. A “functional” interpretation,
hinging the type of liability on the nature and purpose of the
duties being performed by covered employees at any given time,
would increase uncertainty and the frequency of disputes over
the scope of coverage. As Morehead’s and Breault’s employment
contemplated that they would alternate frequently between
construction and linehandling, a single, overall classification of
their duties is most appropriate for determining the types of
remedies available. Cf. Gay, 915 F.2d at 1011 (“[T]o deny Gay
[the employee] a cause of action in the morning but to grant him
one in the afternoon is to make his rights under the Act as random
and indiscriminate as the sea herself. This sort of incertitude is
precisely what Congress attempted to eliminate from the
LHWCA in both its 1972 and 1984 amendments.) (footnote
omitted); cf. Chandris, 115 S. Ct. at 2187 (“In evaluating the
employment-related connection of a maritime worker to a vessel
in navigation, courts should not employ ‘a “snapshot” test for
seaman status, inspecting only the situation as it exists at the
instant of injury’. . . . [A] worker may not oscillate back and
forth between Jones Act coverage and other remedies depending
on the activity in which the worker was engaged while injured.”)
(citations omitted).
Cases will, of course, arise from time to time involving an
injury that was negligently caused by someone acting as the agent
of the vessel owner rather than of the employer."’ Here, however,
17. Cf. Pichoff v. Bisso Towboat Co., 748 F.2d 300, 302-03 (Sth Cir.
1984) (ruling in a dual capacity case that a general manager who ordered a
hurried inspection of a fuel tank leak and failed to provide adequate lighting
was acting as an agent of the vessel).
30a
Appendix A
we see nothing requiring the district court to find that Breault,
in leaving open the hatch, acted in any capacity other than as
Morehead’s fellow employee pursuing assigned harbor worker
duties rather than as A-K’s agent in its distinct shipowner’s
capacity. Morehead and Breault were hired to perform both
construction and scowmen duties. A carpenter-supervisor
instructed Breault to open the hatch. A-K’s project safety
manager generally oversaw the safety of work operations.
Morehead has not shown why, in these circumstances, A-K in
its district capacity as owner of the vessel rather than as his
employer, may have breached a duty of care to protect him
against the open hatch.
We conclude that the district court correctly viewed the open
hatch as a condition temporarily created by A-K as employer,
and affirm the district court’s judgment in favor of A-K.
So ordered.
— Concurring Opinion Follows —
3la
Appendix A
SELYA, Circuit Judge (concurring). Under existing
Supreme Court precedent, this is a close and a vexing case. A
large part of the problem is that the Court’s language in Jones
Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-32 & n.6
(1983) — whether deemed a holding or a considered dictum —
forces judges who are called upon to decide “dual Capacity”
LHWCA cases to engage in a legal fiction, pretending that a
single entity (the injured person’s employer) is really two distinct
and separable entities (employer and vessel owner pro hac vice).
In my view, this self-induced schizophrenia muddles the law
and disrupts the delicate balance that Congress labored to strike
between the entitlement of stevedores and others similarly
situated to workers’ compensation benefits, and the entitlement
of employers who provide that coverage to immunity from
negligence suits. In short, I believe that Congress should have
been taken literally when it wrote that an employer’s
responsibility to furnish workers’ compensation benefits under
the LHWCA is “exclusive and in place of all other liability of
such employer to the employee.” 33 U.S.C. § 905(a).
This reasoning leads me to conclude, with all respect, either
that Congress inadvertently muddied the waters in phrasing
LHWCA § 905(b), or, alternatively, that Jones & Laughlin was
wrongly decided. Still, I recognize that the Supreme Court’s
opinion is binding on this court, and that we therefore must
undertake what Judge Campbell charitably terms “an elusive
quest.” Ante at note 11. Once reconciled to that necessity, I can
in good conscience join this court’s cogent opinion. I write
separately, however, to urge the Supreme Court and Congress to
reflect upon the mind games that Jones & Laughlin —
particularly as applied to harbor workers — compels us to play,
and, hopefully, to revisit the question of whether “dual capacity”
employers should be liable at all in negligence actions brought
by their employees.
— Dissenting opinion foliows —
32a
Appendix A
CYR, Circuit Judge (dissenting). As I am in fundamental
disagreement with the treatment given the duties of care
incumbent upon dual capacity LHWCA employers by the en
banc court under the Supreme Court decision in Scindia, I
respectfully dissent.
I.
Two years after its seminal decision in Scindia, see supra
Section V (en banc opinion), the Supreme Court held that an
injured longshore worker who receives LHWCA compensation
benefits is not barred from bringing a negligence action against
his vessel-owner employer under section 905(b), notwithstanding
the seemingly unqualified “exclusivity” provision in section
905(a) that the sole liability to which maritime employers may
be subjected is LHWCA compensation benefits. See Jones &
Laughlin, 462 U.S. at 530-31; see also supra note 5 (en banc
opinion). Beyond the conclusive contextual support for this
holding, the relevant legislative history confirms a congressional
intendment “that the rights of an injured longshoreman . . . should
not depend on whether he was employed directly by the vessel
or by an independent contractor.” Jones & Laughlin, 462 U.S.
at 531-32 (quoting H.R. Rep. No. 92-1441).'
1. The full House Report excerpt states:
The Committee has also recognized the need for
special provisions to deal with a case where a
longshoreman or ship builder or repairman is
employed directly by the vessel. In such case,
notwithstanding the fact that the vessel is the
employer, the Supreme Court, in Reed v. S.S. Yaka,
373 U.S. 410 (1963), and Jackson v. Lykes Bros.
Steamship Co., 386 U.S. [731] (1967), held that the
unseaworthiness remedy is available to the injured
employee. The Committee believes that the rights of
(Cont'd)
33a
Appendix A
Without further elaboration, the Jones & Laughlin Court
appended a conclusory footnote (“footnote 6”) to its holding:
“Of course, § [905(b)] does make clear 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.” Jd. at
531 n.6. The en banc court interprets footnote 6 as the Supreme
Court’s endorsement of a legal fiction central to the present
controversy: a dual capacity employer engaged in maritime
construction presumptively operates in two wholly discrete
capacities (i.e., vessel owner and construction company). I
respectfully disagree.
First, footnote 6 is unelucidated dictum. See Dedham Water
Co., Inc. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459
(Cont'd)
an injured longshoreman or ship builder or repairman
should not depend on whether he is 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. Similar provisions
are applicable to shipbuilding or repair employees
employed directly by the vessel. The Committee's
intent is that the same principles should apply in
determining liability of the vessel which employs its
own longshoremen or ship builders or repairmen as
apply when an independent contractor employs such
persons.
H.R. Rep. No. 92-1441, 92d Cong., Ist Sess. 7-8, reprinted in 1972
U.S.C.C.A.N. at 4705 (emphasis added).
34a
Appendix A
(1st Cir. 1992) (“Dictum constitutes neither the law of the case
nor the stuff of binding precedent. ”). Although great deference
normally is accorded considered Supreme Court dicta, see, e.g.,
Bank of New England Old Colony, N.A. v. Clark, 986 F.2d 600,
603 (1st Cir. 1993), the only question of statutory interpretation
confronting the Court in Jones & Laughlin was whether the
LHWCA imposed any duty of care at all upon dual capacity
vessel owners, since the parties were in agreement that the
defendant vessel owner would be liable for its negligent conduct
absent any such per se immunity prescribed by statute.” Not only
did the parties in Jones & Laughlin not brief the complex legal
issue presently before us, but there is no exegetic discussion —
either in footnote 6 or elsewhere in the Jones & Laughlin opinion
— of the legal issue itself, the LHWCA’s legislative history, or
supportive Supreme Court precedent. See Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 2370 (1994) (rejecting Court’s
own dictum in prior opinion which “had no cause to address,
and did not carefully consider, the damages question before us
today”).
More importantly, even if footnote 6 were to be considered
binding precedent, its curt conclusion begs the essential question:
in defining the duties of care, how are the courts to determine in
what conditions particular negligent conduct is to be considered
traceable to a dual capacity employer qua vessel owner? Far
from creating or endorsing a presumptive legal fiction, footnote
6 may simply impart the Court’s view that a dual capacity
employer in some future case might yet be able to demonstrate
an efficient bifurcation of its statutory duties of care under the
2. Longshoreman Pfeifer had slipped and fallen while on board a barge
owned by his employer, which had “negligently failed to remove [ice] from
the gunnels.” Jones & Laughlin, 462 U.S. at 526.
35a
Appendix A
LHWCA. The current circuit split on this issue thus indicates at
the very least that the legal fiction purportedly endorsed by
footnote 6 has not won universal acceptance in the lower courts.
The Fifth Circuit has accepted footnote 6 as evidence that
the Supreme Court meant to endorse an artificial legal construct
deemed central to the LHWCA’s integrity as a prototypical
workers’ compensation statute. See Levene, 943 F.2d at 531
(citing Castorina, 758 F.2d at 1032-33 (noting: since legislative
history contemplates that all maritime employees receive the
“same” remedy, “[w]e can find no reason to impose on a
shipowner a greater duty of care toward longshoremen because
the shipowner conducts its own stevedoring operations”)). That
is to say, a contrary construction of section 905(b) would deprive
dual capacity employers of their anticipated return for assuming
the burden of contributing to the section 904 workers’
compensation scheme.
The Second Circuit, on the other hand, has pointed out that
attempting to fit dual capacity employers into the traditional
Scindia mold causes serious anomalies and artificialities not
present in single capacity cases. See, e.g., Fanetti, 678 F.2d at
428 (“[A] [jury] charge which relieves a shipowner of liability
for a dangerous condition which was ‘known to the stevedore
or to any of its employees’ is clearly inappropriate where the
shipowner, itself, is the stevedore.’ ”) (quoting Napoli v. Hellenic
Lines, Ltd., 536 F.2d 505, 508 (2d Cir. 1976)). For example, as
the Second Circuit observed:
Where . . . there is no independent contractor,
it is part of the ship’s duty to exercise
reasonable care to inspect its own workers’
workplace, to remove grease spills, etc. In
36a
Appendix A
such a case there is no “independent
contractor” with primary responsibility upon
whom the ship may properly rely . . . . Things
are very different when the longshoreman
works for an independent stevedore who has
primary responsibility for the workplace.
Id. (quoting Canizzo, 579 F.2d at 689-90 (Friendly, J., dissenting,
in part)) (emphasis added). Although Fanetti preceded Jones &
Laughlin, whereas the Castorina decision came after, there is
no indication that the Second Circuit has altered its position.’
Il.
The en banc court embraces the presumptive “bifurcation”
approach adopted in Castorina out of concern that the Fanetti
option would eviscerate the 1972 LHWCA amendments’
principal purpose: to offer all maritime employers maximum
protection from unpredictable tort liability in return for their
fixed monetary contributions to the LHWCA compensation fund.
See also DiGiovanni v. Traylor Brothers, Inc., 855 F. Supp. 37,
42 (D.R.I. 1994) (same, citing by analogy to “exclusivity”
3. The en banc court notes that the Fanetti panel need not have
announced so broad a statement of the duties incumbent upon dual capacity
employers. See supra note 14 (en banc opinion). In my view, this overlooks
the purposes served by such statements: first, to explicate the court’s rationale
through reference to potential anomalies and inequities which might otherwise
be thought to undermine its rationale; second, to provide guidance on remand.
See, e.g., Scindia, 451 U.S. at 156 (setting forth complete explication of
duties of care for remand, some arguably inapposite to record facts). No
Supreme Court or Second Circuit case either explicitly or implicitly overrules
Fanetti. Cf. Guilles, 12 F.3d at 387 (citing Levene only for the limited
proposition that non-longshore workers not specifically barred by the 1984
LHWCA amendments — like harbor workers — may bring suit against their
dual capacity employers under the Jones & Laughlin reasoning); cf. also
supra Section VI (en banc opinion).
37a
Appendix A
provision in Rhode Island Workers’ Compensation Statute, see
R.I. Gen. Laws § 28-29-20 (1994)). Accordingly, the en banc
court views the bifurcation fiction as the only means of achieving
the congressional goal “that the rights of an injured longshoreman
. .. Should not depend on whether he was employed directly by
the vessel or by an independent contractor.” H.R. Rep. No. 92-
1441 (noting that the “same principles should apply in
determining the liability of the vessel” in both single capacity
and dual capacity cases). I find its reasoning unpersuasive.
First, though courts must attempt to discern legislative intent
based on the statute as a whole, see Thinking Machs. Corp. v.
Mellon Fin. Servs. Corp., 67 F.3d 1021, 1024 (1st Cir. 1995),
nothing in the LHWCA or its sparse legislative history provides
conclusive support for the “evisceration” argument adopted today
by the en banc court. As single capacity employers would
continue to retain all their section 905(a) protections, the Fanetti
approach may limit some employers’ LHWCA immunity but it
certainly does not render the LHWCA exclusivity provision
superfluous. See Mosquera-Perez v. INS, 3 F.3d 553, 556 (st
Cir. 1993) (no statutory provision should be interpreted as
meaningless). .
Second, Jones & Laughlin itself demonstrates that the
supposedly unlimited, pro-employer exclusivity provision in
section 905(a) is far more flexible than the land-based workers’
compensation statutes in most states, which in comparable
contexts would not permit a worker to bring a negligence action
against the employer as owner of the property on which the
worker’s injury occurred. See generally 2A Arthur Larson,
Workmen's Compensation Law § 72.82, at 14-234 (1983).* Thus,
4. Many states do recognize a dual capacity doctrine — though in
circumstances inapposite here — where the employer acts in a non-landowner
(Cont'd)
38a
Appendix A
it seems reasonably clear that Congress did not envision section
905 as an exact analog to state workers’ compensation schemes.
Third, the cited House Report language appears immediately
after a discussion of Congress’ intention to abrogate the Court’s
previous decisions in Reed v. Yaka, 373 U.S. 410 (1963), and
Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731 (1967), see
supra note 1, which held that dual capacity employers were as
vulnerable to “unseaworthiness” claims under the pre-1972
LHWCA as were non-employer vessel owners. Congress meant
to eliminate the wasteful litigation burdening the courts under
the pre-1972 LHWCA,; viz., the “triangulation” in litigation
caused by the confluence of a longshore worker’s strict liability
claim for “unseaworthiness’”’ against the vessel owner and the
vessel owner’s claim for indemnification from a negligent
stevedore-employer.
Thus, in all likelihood the House Report’s reference to “same
principles” was simply meant as a caution that henceforth, by
virtue of the 1972 amendments, both single capacity and dual
Capacity cases were to be subject to the same negligence liability
principles, not to the heightened standards of care governing
“unseaworthiness” claims — a differential that would otherwise
have afforded employees in dual capacity cases a decided
advantage in litigation. See, e.g., Shaw v. North Pennsylvania
R. Co., 101 U.S. 557, 565 (1879) (“No statute is to be construed
(Cont'd)
capacity. For example, a worker injured by a product manufactured by the
employer would not be barred from bringing a product liability claim for
breach of the duty — owed the consuming public — to make a reasonably
safe product. See, e.g., Schump v. Firestone Tire & Rubber Co., 541 N.E.2d
1040, 1042-43 (Ohio 1989).
39a
Appendix A
as altering the common law further than its words import.”) .
Therefore, even without indulging the “bifurcation” fiction
adopted by the en banc court, it is entirely reasonable to point
out that dual capacity employers, in return for assuming much
more limited section 904 workers’ compensation liability,
obtained an important benefit from the 1972 amendments; that
is, complete insulation from the much more onerous strict
liability to which they had been exposed previously in actions
for breach of the warranty of seaworthiness.
Fourth, Congress may well have envisioned different duties
of care for single capacity and dual capacity employers. Unlike
their single capacity counterparts, dual capacity vessel owners
presumably derive economic benefit as a result of their decision
to act in a dual capacity. In fact, this economic benefit itself
may well counterbalance any “heightened” duty of care attending
their decision.
A shipowner is, of course, at liberty to refrain
from hiring an independent stevedoring
contractor. Presumably it does so to save
money. However, that saving is accomplished
at the-cost of not having an independent
expert on board. As myriad cases in this field
demonstrate, the presence of the expert
independent stevedoring contractor furnishes
the shipowner with significant protection, in
the form of insulation from liability for its
own acts which would otherwise attach. But
the shipowner cannot save the premium and
still claim the protection.
Fanetti, 678 F.2d at 428 (emphasis added).
40a
Appendix A
Indeed, permitting the dual capacity employer to
compartmentalize its actual “knowledge” between its two
artificial personae in these circumstances would undercut the
primary LHWCA policy goal identified in Scindia. That is to
say, there would be no economic incentive for shipowner-
employers to hire independent stevedoring companies, which
generally possess greater expertise in conducting longshoring
activities with maximum levels of worker safety. Such an
artificial rule inevitably would increase the hazardous working
conditions encountered by longshore and harbor workers, and
thereby undermine the spirit of the LHWCA.
Fifth, the en banc court’s bifurcation fiction obviates any
factfinding inquiry into the “dual capacity” employer’s actual
mode of operations. Under either Fanetti or Levene, single and
dual capacity employers are subject to the “same” standards of
care; the differences are purely circumstantial. The Scindia
paradigm recognizes that a single capacity vessel owner is subject
to comparatively relaxed duties of care because it forfeits
virtually all control over ensuing events once it turns its vessel
over to another legal entity (and that entities employees) in
relation to which the vessel owner enjoys no presumptive right
of control absent specific contractual arrangements to the
contrary.
On the other hand, as a general rule the notice or knowledge
— as well as the foreseeability — attributable to a dual capacity
employer will be greater simply because a vessel owner which
hires its own longshore or harbor workers does not in fact n turn
over n its vessel to a separate entity. Rather, the dual capacity
employer remains in control —- at least to some extent (both in
time and space) — and often remains in total control of the entire
vessel and its appurtenances throughout the relevant time period.
4la
Appendix A
Thus, the fuller range of knowledge and foreseeability normally
accompanying constant and total control represents a compelling
reason for broader accountability on the part of the dual capacity
employer, consistent with general tort principles, see, e.g.,
Illinois Constructors Corp. v. Logan Transp., Inc., 715 F. Supp.
872, 882 n.22 (N.D. Ill. 1989) (agent’s knowledge is imputable
to principal, exposing principal to direct liability in tort); People
v. American Medical Ctrs. of Michigan, Ltd., 324 N.W.2d 782,
783 (Mich. Ct. App. 1981) (same), cert. denied, 464 U.S. 1009
(1983); Allen v. Prudential Property & Cas. Ins. Co., 839 P.2d
798, 806 (Utah 1992) (same).
Even a single capacity employer owner must shoulder the
ongoing duty to intervene as necessary to correct hazardous
conditions in any part of the vessel remaining within its control,
as well as when it acquires actual knowledge of a developing
hazard posed by the vessels appurtenances (e.g., an open deck
hatch or a leaking powerpack), and knows that the independent
stevedore’s failure to remedy the hazard is plainly improvident.
See Keller, 38 F.3d at 32; cf. also Melanson v. Caribou Reefers,
Lid., 667 F.2d 213, 214 (1st Cir. 1981) (noting that Scindia’s
“obviously improvident” standard of care generally pertains only
to hazards developing in vessel’s gear, rather than
nonappurtenances like cargo). By the opposite token, however,
what can it matter whether a dual capacity employer knows, as
it surely does, that its decision gua independent stevedore not to
eliminate a known hazard ‘is or is not improvident? After all, a
vessel can exercise control, and acquire knowledge, only through .—
its owner and crew, 33 U.S.C. § 902(21) (“vessel” includes
“agents” and “crew members”), and in single capacity cases the
42a
Appendix A
control exercised and the knowledge acquired by these agents
normally must ve imputed to the vessel.° The apology for the
dual capacity ‘iction might be more compelling were there some
reality-based indication as to when the markedly different
responsibilities incumbent upon dual capacity employers become
engaged. But this is simply not the case, of course. Even the
determinative one-time a turn over” in a single capacity case,
which brings about a clearly distinguishable realignment of
responsibilities in keeping with the change in control, bears no
relevance in the dual capacity case. In the Jamestown Bridge
construction project, for example, the control and use of some
vessels, or discrete areas of various vessels, frequently alternated
between an employer’s vessel-operating employees and its .
construction employees .° Clearly, then, the dual capacity fiction
5. Indeed, the following language from the House Report severely
undercuts the statutory interpretation proposed by the en banc court:
{Nothing in the [LHWCA] is intended to derogate
from the vessel's responsibility to take appropriate
corrective action where it knows or should have
known about a dangerous condition.
So, for example, where the longshoreman slips on
an oil spill on a vessel’s deck and is injured, the
proposed amendments to Section 5 would still permit
an action against the vessel for negligence. To recover,
he must establish that: (1) the vessel put a foreign
substance on the deck, or knew that it was there, and
willfully or negligently failed to remove it; or (2) the
foreign substance had been on the deck for such a
period of time that it should have been discovered
and removed by the vessel in the exercise of
reasonable care under the circumstances.
H.R. Rep. No. 92-1441 (emphasis added).
6. For example, in the companion en bane case, the employer, Traylor
(Cont'd)
43a
Appendix A
presumes circumstantial settings which overlook the actual facts
in many if not most cases.
At best, therefore, the Castorina fiction devolves into a
metaphysical exercise, at worst into an inducement to dual
capacity employers to perpetuate hazardous conditions within
their exclusive control. See Fanetti, 678 F.2d at 428. Furthermore,
it runs directly counter to the clear statement of congressional
intent in the LHWCA legislative history; viz., that the “same
principles [i.e., the Scindia duties of care] should apply in
determining the liability of the vessel” in both single Capacity
and dual capacity cases. See H.R. Rep. No. 92-1441.
Sixth, the mere fact that the 92d Congress reduced the tort
liability exposure of LHWCA employers in certain respects does
not permit the extrapolation indulged by the en banc court; viz.,
Congress must have intended to accord employers the maximum
protection from negligence liability regardless of any actual
differences in their respective levels of knowledge about, or
capacities to control, the workplace. In so doing, the en banc
(Cont’d)
Brothers, Inc., was required to use the BETTY F and the supply barge,
alternately, as a means of transporting the crane, its Operating employees
and supplies to the designated work sites on Narragansett Bay or as an
instrumentality for constructing the coffer dams. Sometimes, in fact, it
appears that these discrete operating modes either merged or alternated with
such frequency that it could not be ascertained with any confidence, even on
the date of the accident, whether the Traylor Brothers’ supply barge crew, or
its construction team “alter ego,” had custody and control of the deck of the
supply barge. Cf. Masinter v. Tenneco Oil Co., Inc., 867 F.2d 892 (Sth Cir.
1989) (noting that “the present case does not involve a vessel owner ‘turning
over’ the control of a vessel to a stevedore or independent contractor. Rather,
[the vessel owner] was contractually bound to conduct the drilling operations
and remained in control of the vessel to effectuate this obligation.”).
44a
Appendix A
court gives little recognition to the one presumptive principle of
statutory interpretation plainly applicable here: the LHWCA
“must be liberally construed in conformance with its purpose,
and in a way which avoids harsh and incongruous results.” Reed,
373 U.S. at 415 (emphasis added). See Voris v. Eikel, 346 U.S.
328, 333 (1953); see also Hogar Aqua y Vida en el Desierto v.
Suarez-Medina, 36 F.3d 177, 181 (ist Cir. 1994) (remedial
statutes are to be broadly construed).’ Consistent with this
presumptive interpretation, unless dual capacity employers like
A-K demonstrate some legislative purpose behind the LHWCA
that is either served by Castorina or disserved by Fanetti, the
benefit of the doubt would belong to the plaintiff-employee.*®
7. Generally, this interpretive rule operates to bring injured maritime
workers within the workers’ compensation scheme in circumstances where
§ 904 is ambiguous. Insofar as maritime workers are deprived of other
common law remedies under § 905(a), a liberal interpretation is not invariably
synonymous with one that is “favorable” in fact to maritime workers. In
Reed, 373 U.S. 410 (1963), and Jackson, 386 U.S. 731 (1967), however, the
Court made clear that this interpretive rule may be used to expand a covered
workers adjunct remedies under the LHWCA, beyond the remedy directly
afforded under § 904. The legislative history of the 1972 LHWCA
amendments questions Reed, but only regarding the continued availability
of the “unseaworthiness” remedy against dual capacity employers, see supra
note 1, leaving undisturbed Reed's pro-employee interpretive presumption
in the face of other unresolvable statutory ambiguities.
8. I share the common-sense assessment advanced in the concurring
opinion, see supra, that the dual capacity fiction is unnecessarily
cumbersome, but cannot agree that Congress intended, or the Jones &
Laughlin Court should have held, that all tort suits against dual capacity
employers were barred outright. First, the unambiguous second sentence in
§ 905(b) (“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.” prevented any such interpretation by the Court. By expressly
: (Cont'd)
45a
Appendix A
Il.
Absent controlling precedent or conclusive evidence of
congressional intent, we must determine the particular duties of
care to be borne by the dual capacity employer. See Scindia,
451 U.S. at 165-66, 167 (“Section 905(b) did not specify the
acts or omissions of the vessel that would constitute negligence
. .. » Much was left to be resolved through the ‘application of
accepted principles of tort law and the ordinary process of
litigation.’ ”) (quoting H.R.Rep. No.92-1441). Since legal
fictions often overlook relevant realities in order to promote some
greater systemic benefit, in my view a finding of dual Capacity
should be the exception, not the presumptive rule.°
(Cont'd)
restricting the permissible scope of such suits, this language unmistakably
implies that there is no such outright bar of negligence suits by employees
against their dual capacity employers. See Jones & Laughlin, 462 U.S. at
530-31. Second, the concurring opinion suggests that the 92d Congress
unintentionally created the present muddle in 1972, then surmises that
Congress nonetheless intended the exclusivity provision as a total bar to
dual capacity suits. Be that as it may, Congress amended the LHWCA in
1984, one year after the Jones & Laughlin decision, and enacted outright
bars relating only to particular classes of dual capacity employers (c.g.,
shipbuilders). See, ¢.g., Guilles, 12 F.3d at 386. Thus, Congress had the
Opportunity in 1984 to overturn the Jones & Laughlin decision in its entirety,
yet chose to overrule it only in part. Consequently, a congressional intendment
that some dual capacity employers are subject to suit under section 905 seems
to me to be settled beyond serious question.
9. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 92 (1934)
((“[L}egal fictions have an appropriate place in the administration of the
law when they are required by the demands of convenience and justice.”);
Pettibone Corp. v. Easley, 935 F.2d 120, 123 (7th Cir. 1991) (“Even legal
fictions have their limits.”); Cruz y. Chesapeake Shipping, Inc., 932 F.2d
218, 227-28 (3d Cir. 1991) (noting that maritime law creates legal fictions
“for [ ) practical operational reasons”); United States v. Markgraf, 736 F.2d
(Cont'd)
46a
Appendix A
Neither the Congress nor the Scindia Court could have
foreseen the recent, fast-paced evolution in maritime construction
practices which has exacerbated the instant controversy.
Ultimately, therefore, the Congress or the Supreme Court must
provide a definitive response to the present conundrum. Until
then, however, a the rights of an injured longshoreman . . . should
not depend on whether he was employed directly by the vessel
or by an independent contractor.” Jones & Laughlin, 462 U.S. at
531-32.
It is for very good reason that the- LHWCA did not invite
the courts simply to presume an adequate segregation of the
workplace-safety responsibilities incumbent upon maritime
employers under the LHWCA, based merely on some informal
or de facto bifurcation of its vessel-owner and construction
operations. Such a presumption would allow, even encourage,
dual capacity employer operations to lapse into the types of tacit
work arrangements which place employees at unnecessary risk;
for example, where few workers, if amy, understand which of
their dual capacity employer’s alter egos is ultimately
responsible, through its own employees, for monitoring,
reporting and/or remedying developing hazards.
At most, therefore, bifurcation should be available as an
affirmative defense, as to which the putative dual capacity
employer bears the burden of proof. Scindia noted that the vessel
owner may surrender and entrust a discrete work area to a single
(Cont'd)
1179, 1187 (7th Cir. 1984) (“[FJor more than 200 years we have been told
that the proper office of legal fictions is to prevent, rather than to create,
injustices.” (citing 3 William Blackstone, Commentaries on the Laws of
England 43 (1768)), cert. dismissed, 469 U.S. 1199 (1985).
47a
Appendix A
capacity employer because the latter presumptively possesses
not only the hands-on opportunity to monitor vessel workplace
conditions, but also the required expertise in supervising
workplace safety. See Keller, 38 F.3d at 29-30. On the other
hand, since a dual capacity employer may Or may not actually
consign its workplace safety responsibilities to its “construction
division,” its bifurcation defense should not be allowed if, for
instance, the dual capacity employer withheld such
responsibilities from its construction division ab initio, or
delegated them without the clarity and authority reasonably
required to enable their reliable discharge. Cf. id. at 32 (“a post-
‘turnover’ duty may arise if the vessel owner was obligated, by
contract, statute or custom, to monitor stevedoring operations
for the purpose of detecting and remedying unsafe conditions”).
For example, the slipshod arrangements in place in the
companion cases now before the en banc court were of a type
that could do nothing to encourage, let alotie develop, the
expertise necessary to enable a dual capacity employer's
“construction division” reliably to discharge its delegated
workplace-safety responsibilities along the lines touted in
Scindia.
Consequently, in my view the first step in establishing the
actual bifurcation needed to sustain a dual-capacity employers
affirmative defense would be to demonstrate, either through an
express delegation of responsibility, or by way of an implied
delegation based, for example, on evidence that the dual Capacity
employers on-site construction division supervisors customarily
made workplace safety decisions of a type and magnitude
adequate to indicate that reasonably reliable prophylactic
measures would be undertaken to prevent workplace mishaps of
the sort experienced by the plaintiff-employee.
Secondly, once a dual capacity employer has made the prima
48a
Appendix A
facie showing that primary responsibility for workplace safety
had been adequately delegated to its “construction division,” n
the Scindia rationale would contemplate that the injury sustained
by the plaintiff-employee have occurred in a workplace area not
under the “active control” of the dual capacity employers “vessel
division” (or its vessel crew) during any appreciable pre-injury
period after the hazardous condition first developed. See Scindia,
451 U.S. at 167 (noting that vessel may be liable for its negligent
conduct “in areas . . . under the active control of the vessel during
the stevedoring operations”); Fanetti, 678 F.2d at 429 (noting
that the 1972 LHWCA amendments “neither expressly nor
implicitly purport[ ] to overrule or modify the traditional rule
that the 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 stevedore, whose
limited liability is fixed by statute, is partly to blame”) (quoting
Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256,
_ 264 (1979)).
The rationale for such a requirement seems unimpeachable:
an employer may not use the dual capacity fiction to circumvent
LHWCA tort liability by artificially compartmentalizing its
actual knowledge. Id. at 430 (“[R]equiring trial judges to give
juries instructions about the shipowner’s right to rely upon an
expert contractor who, in fact, was not there . . . is schizophrenic
and the predictable effect upon the jury one of bafflement.”).
Since dual capacity employers that utilize vessels to perform
their maritime construction activities may never engage in a one-
time turnover of any discrete area of the vessel (as would the
single capacity vessel owner in the more traditional stevedoring
context), a rational factfinder reasonably could conclude that
the area within which the hazardous condition developed had
been jointly or interchangeably used by the dual capacity
employer’s vessel division and its construction division
49a
Appendix A
employees to such an extent that the dual capacity employer
had never surrendered “active control” of the injury site to its
construction “division.” Thus, were there to be a remand in this
case, the record might enable a reasonable finding that agents
of A-K’s “construction division” exclusively and continuously
controlled the barge from the time the hazardous condition first
developed until a few days later when Morehead fell into the
open hatch.
Once a dual capacity employer satisfies the two
aforementioned components in its burden of proof, tort liability
could not be imposed absent showings by the plaintiff-employee
that the employer had acquired (i) actual knowledge of the
developing hazard in an area no longer within the employer’s
“active control” and (ii) notice that the failure of its construction
division to remedy the hazard was “obviously improvident.”
Scindia, 451 U.S. at 174-75. Thus, the dual capacity employer
would remain responsible for monitoring all areas of the vessel
for developing hazards, even though it is allowed to rely upon
its construction division, in the first instance, to remedy hazards
within areas under the “active control” of its construction
division.
Actual knowledge of a developing hazard normally would
be imputed to a corporate dual capacity employer if its agents
or employees acquired actual knowledge of the developing
hazard. Under the “obviously improvident” standard, liability
also could be imputed to the dual capacity employer based on
extrinsic evidence as to the obviousness of the developing hazard
and the length of time it remained unremedied.
Although the “obviously improvident” standard imported
from Scindia entails a lesser duty of care than the “reasonable
care” required for actionable negligence, it nonetheless serves—
50a
Appendix A
to diminish the grave risk that virtually any perfunctory
designation of employees as “vessel-owner” workers may allow
a dual capacity employer to shield itself from all tort liability.
Thus, on remand the record in the present case might enable a
finding that the decision not to close the open hatch for a few
days was not “obviously improvident” even assuming
responsibility for the decision were to be imputed to A-K. Cf.
Scindia, 451 U.S. at 175, 178-79 (noting genuine factual dispute
whether vessel owner was liable because it knew that stevedore’s
decision not to fix defective winch for two days had been
obviously improvident, and remanding for further factual
findings). In both cases before the en banc court, however, the
district court decisions were made in reliance on the Castorina
standard for defining the duties of care incumbent upon dual
capacity employers. Since the ultimate findings — as to whether
breaches of the applicable duty of care occurred — necessarily
were dependent upon how those duties were defined, I would
remand the A-K case for further proceedings and/or specific
factual findings on the defendant employer’s affirmative defense
of bifurcation.
Sla
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS, FOR THE FIRST CIRCUIT
DATED FEBRUARY 6, 1996 IN MOREHEAD
V. ATKINSON-KIEWIT, J/V, ET AL.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1581
MARK MOREHEAD,
Plaintiff, Appellant,
v.
ATKINSON-KIEWIT, J/V, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. Bailey Aldrich,” Senior Circuit Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
* Of the First Circuit, sitting by designation.
52a
Appendix B
Thomas M. Bond, with whom David B. Kaplan and The Kaplan/
Bond Group were on brief for appellant.
Kathleen B. Carr, with whom Thomas E. Clinton, Robert E.
Collins and Clinton & Muzvka, P.C. were on brief for appellees.
February 6, 1996
CAMPBELL, Senior Circuit Judge. Plaintiff Mark
Morehead, a harbor worker injured while working on a
construction barge, appeals from a judgment dismissing his
negligence action against Atkinson-Kiewit, J/V (“A-K”), a firm
that was both his employer and charterer of the barge. Morehead
brought this action under section 905(b) of the Longshore and
Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901
et seq., authorizing covered employees to sue a vessel as a third
party for injury caused by the negligence of the vessel. In its
capacity as Morehead’s employer, A-K is immune from tort
actions brought by covered employees like Morehead. But as
the bare boat charterer of the barge on which Morehead was
injured, A-K is deemed also to be the statutory vessel owner;
and it was in this capacity that A-K was sued.
The case raises difficult questions of first impression in this
circuit as to the liability of a so-called dual capacity employer
under the LHWCA. In particular, we must decide how to assess
whether A-K’s alleged negligence occurred in its vessel capacity
(allowing suit to be brought under section 905(b)) or in its
employer capacity (immunizing it from suit). While the Supreme
Court has endorsed the bringing of section 905(b) negligence
actions against a dual capacity defendant in its vessel owner
capacity, the Court has yet to define, in such a case, the point at
which employer responsibility ends and vessel responsibility
53a
Appendix B
begins. Nor has the Court decided to what extent principles laid
down in stevedore cases involving a separately owned vessel
apply to claims by non-stevedore harbor workers.
I. Background
Mark Morehead was employed by A-K, a joint venture
formed between Guy Atkinson Co. and Kiewit Eastern to
complete the construction of the Jamestown Bridge spanning
Narragansett Bay in Rhode Island. In order to transport materials
and equipment around the bay to the work sites, A-K bare boat
chartered several barges. The barges involved in this case, the
CHER 106 and the HUGHES 707, were flat deck barges —
floating platforms bare of structures or equipment. A-K also
leased two tugs from Woods Hole Towing Co. to transport the
barges where needed. The tugs themselves were crewed by
Woods Hole employees.'
A-K hired carpenters from a local union to build the bridge.
Their responsibilities included cutting timbers and steel and
setting up concrete forms for pours. As union requirements
prevented the tug captain or crew from handling the lines on the
barges, some carpenters also tended the lines on the barges as
“scowmen.” Morehead’s regular duties included both carpentry
and linehandling.
On January 29, 1990, Morehead and another carpenter/
scowman, Steven Breault, were untying the HUGHES 707 from
the CHER 106. A barge was to be surveyed in connection with
1. Although Woods Hole was originally named as a defendant in this
action, the district court granted its motion for summary judgment against
Morehead, who has not appealed from that decision. Consequently, Woods
Hole is no longer a party.
54a
Appendix B
her going off hire. A tug stood nearby. The barges were not at
this time carrying materials or equipment, but rather were set
off on the north side of the Davisville Pier. Breault threw a heavy
line to Morehead, who, in attempting to catch it, stepped
backwards into an open hatch which was flush with the deck on
one of the barges. The district court noted conflicting testimony
as to which barge Morehead was on when injured,” but concluded
that in any event, the single open hatch was insufficiently
obvious. Breault testified that he had opened the hatch on the
HUGHES (which he named as the barge to be surveyed) a few
days before the accident, because A-K was preparing for an off-
_ hire survey before returning the barge to the owner. Breault
testified that a supervisor carpenter had told him to open the
hatch.
Morehead filed a complaint against A-K and Woods Hole
on April 22, 1991, alleging Jones Act negligence,
unseaworthiness, maintenance, and cure, and negligence under
section 905(b) of the LHWCA. Following the denial of A-K’s
motion for summary judgment, Morehead voluntarily withdrew
all claims except his claim for negligence under the LHWCA.
A bench trial commenced on April 11, 1994. On April 29, 1994,
the district court issued its Findings and Order dismissing
Morehead’s complaint and A-K’s cross-claim against Woods
Hole. It wrote:
2. The district court did not definitively find which barge Morehead
was on at the time of the accident. The court found “more likely” that
Morehead was on the HUGHES 707 and Breault was on the CHER 106, but
wrote: “In either event, however, the court would find a single open hatch . . .
insufficiently obvious. There would seem a presumption that an unmarked
18 inch opening on an otherwise solid deck is a failure of a reasonably safe
proffer to one expected to walk thereon. The court would therefore find the
barge, whichever one it was, unseaworthy, but under the statute (33 U.S.C.
§ 905(b)) this is irrelevant.”
55a
Appendix B
[T]he court does not find it negligence of
[appellee] viewed in its capacity as pro hac
vice owner. Rather, it appears to be a
temporary condition created by it solely in
its capacity as charterer.... These two
Capacities are legally separate, even though
they be the same individual.
This passage confusingly distinguishes between an owner pro
hac vice and a bare boat charterer (the statute includes both in
its definition of “vessel,” see 33 U.S.C. § 902(21)). The parties
agree that the district court actually meant to distinguish between
the appellee as vessel and as employer. We also interpret the
district court’s order in that fashion.
Judgment was entered on May 4, 1994 in A-K’s favor. This
appeal followed.
II. Standard of Review
A district court’s fact-based findings relative to negligence
are reviewable only for clear error. See, e.g., Levene v. Pintail
Enters., 943 F.2d’528, 535-36 (Sth Cir. 1991), cert. denied, 504
U.S. 940 (1992). However, the question of whether the district
court applied the proper standard of care is one of law, subject
to de novo appellate review. See, e.g., Keller v. United States,
38 F.3d 16, 22-23 (1st Cir. 1994); Elberg v. Mobil Oil Corp.,
967 F.2d 1146, 1149 (7th Cir. 1992).
The lower court did not explain the criteria it applied in
deciding what duties of care to attribute, respectively, to A-K in
its separate capacities as LHWCA employer and as owner
(charterer) of the barge. Rather, it simply cited along with its
56a
Appendix B
conclusions existing precedent relative to section 905(b) liability,
e.g., Scindia Steam Navigation Co. v. De los Santos, 451 U.S.
156 (1981), and Castorina v. Lykes Bros. S.S., 758 F.2d 1025
(Sth Cir.), cert. denied, 474 U.S. 846 (1985). The factual
circumstances of these and related cases, however, are too
removed from those here to reveal the precise standards and
analysis that were applied in this case. Nor does the language of
the LHWCA provide clear guidance. We can only hope that the
Supreme Court will eventually elucidate the standards applicable
to dual status employers of harbor workers in circumstances
comparable to these. Until then, we do our best to outline the
legal principles that we believe, govern the facts presented here.
Under those principles — and giving due deference to the district
court’s authority as fact finder — we affirm the judgment below.
III. “Vessel” Status
We dispose first of a less troublesome issue. The district
court provisionally assumed that the barge on which Morehead
was injured was a “vessel” within the LHWCA, although it found
no need to decide the matter. Section 905(b) permits an LHWCA
employee to sue in negligence only “[i]n the event of injury...
caused by the negligence of a vessel.” Section 902(21) of the
LHWCA defines “vessel” to include a bare boat charterer among
the parties that may be held liable under section 905(b). A-K
has not contested its status as bare boat charterer. Nor has it
asserted on appeal any reason to conclude that the HUGHES
and CHER were not among the structures included as “vessels”
under the LHWCA. See, e.g., Kathriner v. Unisea, Inc., 975 F.2d
657, 662 (9th Cir. 1992) (to determine whether a structure is a
“vessel” under the LHWCA, most courts have applied the
general definition in 1 U.S.C. § 3 of a “watercraft or other
artificial contrivance used, or capable of being used, as a means
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of transportation on water”); accord DiGiovanni v. Traylor Bros.,
830 F. Supp. 106, 108-109 (D.R.I. 1993). The LHWCA definition
of “vessel’’ is more inclusive than that used for evaluating
seaman status under the Jones Act.’ For present purposes, we
shall assume without deciding that both barges were vessels
under the LHWCA, for the negligence of which a section 905(b)
claim may be brought.
IV. Statutory Framework
The LHWCA establishes a comprehensive federal worker’s
compensation scheme which holds employers liable, irrespective
of fault, for securing the payment of compensation to qualified
maritime employees injured in the course of their employment.
33 U.S.C. § 904.* This liability of employers is termed
“exclusive.” Id. § 905(a).
3. See Generally Chandris, Inc. v. Latsis, 115 S. Ct. 2172, 2192 (1995)
(to qualify as a seaman under the Jones Act, “a maritime employee must
have a substantial employment-related connection to a vessel in navigation”);
Kathriner, 975 F.2d at 659-663 (applying tests of “vessel” under Jones Act
and LHWCA). Plaintiff withdrew his maritime claims, including the claim
of Jones Act negligence.
4. Section 904 provides in relevant part: “(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... . (b) Compensation
shall be payable irrespective of fault as a cause for the injury.” 33 U.S.C.
§ 904.
A statutorily covered employee is “any person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship repairman,
sh »builder, and ship-breaker,” except “a master or member of a crew of any
vessel” and other limited categories of workers. Id. § 902(3).
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Appendix B
Section 905(b) of the Act authorizes certain covered
employees to sue the vessel as a third party if their employment
injury was caused by the negligence of the vessel.* But
5. Section 905(b) provides:
In the event of injury to a person covered under this
chapter 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 in accordance with the
provisions oi section 933 of this title, 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 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, owner
pro hac vice, agent, operator, or charterer) or against
the employees of the employer. 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
- chapter.
33 U.S.C. § 905(b).
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Appendix B
employees may no longer sue the vessel on a strict liability
theory for her “unseaworthiness,”’® Congress having eliminated
the latter as a remedy for longshore and harbor workers in the
1972 Amendments to the LHWCA. The 1972 Amendments
require employees to show fault of the vessel, bar a vessel’s
attempt to obtain indemnification from the employer, and
otherwise have increased the worker’s compensation recoverable
from an employer. See Addison v. Bulk Food Carriers, Inc., 489
F.2d 1041, 1042 (1st Cir. 1974). Focusing on longshore workers
who, to date, have been the occupational group chiefly discussed
in Supreme Court cases under the LHWCA, the Court described
these changes as designed “to shift more of the responsibility
for compensating injured longshoremen to the party best able
to prevent injuries: the stevedore-employer.” Howlett v. Birkdale
Shipping Co., 114 S. Ct. 2057, 2063 (1994); see also Keller, 38
F.3d at 23.
In 1984 Amendments to the LHWCA, Congress further
narrowed the availability of negligence actions by certain
categories of harbor workers against a vessel in circumstances
where the employer was also the owner of the offending vessel.
In these so-called “dual capacity” cases, Congress barred
employees providing “shipbuilding, repairing, or breaking
services” from suing the employer-vessel owner for negligence
in any capacity. 33 U.S.C. § 905(b). The Amendments did not
purport to prohibit LHWCA employees other than in the
described categories from suing for negligence in dual capacity
6. See 33 U.S.C. § 905(b). Unseaworthiness is a maritime remedy that
was established “simply by showing that some condition or appurtenance on
board the vesse! at the time of the accident was unreasonably hazardous,
even if the stevedore-employer was the sole cause of the hazard.” Keller, 38
F.3d at 23 (citing Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 (1946)).
~ SID
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Appendix B
cases. See H.R. Rep. No. 98-570(I), 98th Cong., 2d Sess
reprinted in 1984 U.S.C.C.A.N. 2734, 2741 (hereafter 1984
U.S.C.C.A.N.) (“The Committee intends that this language [in
§ 905(b)] not be construed to limit an employees right to bring a
cause of action, except in the circumstances indicated within
the language.”); cf. Guilles v. Sea-Land Serv., Inc., 12 F.3d 381,
386 (2d Cir. 1993) (affirming relief cook’s judgment against
negligent employer-vessel owner and explaining that “[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”); Gay v. Barge 226, 915 F.2d 1007, 1010 (Sth
Cir. 1990) (“[T]he § 905(b) bar is specific to the occupations
listed: shipbuilders, ship repairers and ship breakers.”).
The Supreme Court had previously interpreted section
905(b) to permit covered employees to bring third-party
negligence actions against their employer qua vessel owner. See
Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-32
(1983) (explaining that if Congress had intended to exempt
employer-vessel owners from negligence suits, then the sentence
in section 905(b) barring recovery from them where fellow
longshore workers caused the injury would have been
unnecessary). As Morehead’s occupational category does not
fall within any of those Congress expressly excepted in the 1984
Amendments, supra, Jones & Laughlin would appear to allow
Morehead to bring a third-party negligence action against A-K
in its vessel capacity.’ To prevail, Morehead has to show that
7. The parties have not disputed on appeal that Morehead is a statutorily
covered employee of a statutorily covered employer. As a harbor worker with
carpentry and linehandling duties, Morehead meets the statutory definition
of a covered employee under section 902(3) and does not fall within any of
the categories of workers expressly prohibited from suing under section
905(b).
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Appendix B
any negligence on A-K’s part is attributable to it as vessel rather
than as Morehead’s insured LHWCA employer.
V. Defining the Vessel’s Duty of Care: The Supreme Court
Cases
As Jones & Laughiin allows Morehead to bring a third-
party action against the vessel owner that is simultaneously his
employer, we are left to ascertain the contours of the duty of
care owed to Morehead by A-K in its distinct Capacity as vessel.
Such a definition is needed in order to decide whether the alleged
negligence — the open hatch and failure to warn — is
attributable to A-K qua vessel owner rather than qua employer.
Congress left to the courts the task of defining the applicable
duty of care. See Howlett, 114 S. Ct. at 2063 (“Because Congress
did not ‘specify the acts or omissions of the vessel that would
constitute negligence,’ the contours of a vessel's duty to
longshore workers are ‘left to be resolved through the
“application of accepted principles of tort law and the ordinary
process of litigation.” ’ ”) (citing Scindia, 451 U.S. at 165-66).
In Scindia Steam Navigation Co. v. De los Santos, 451 U.S.
156 (1981), the Supreme Court considered the duty of care that
a vessel owner owed to an injured longshore worker who was
employed by an independent stevedoring firm. For this common
triangular relationship at least — vessel, stevedore, and
longshore worker* — the Court held that limiting the vessel’s
8. In Howlett, the Court suggested that this relationship was the typical
one in the longshoring business. See Howlett, 114 S. Ct. at 2062 (“The injured
longshoreman’s employer — in most instances, an independent stevedore,
see Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 (1979)
— must pay the statutory benefits regardless of fault, but is shielded from
any further liability to the longshoreman.”) (citations omitted).
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Appendix B
duty of care so as to put the chief responsibility upon the
independent steve
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