DocketNumber： 94-1581
Filed Date： 2/6/1996
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT 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
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges. ______________
____________________
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
____________________
____________________
*Of the First Circuit, sitting by designation.
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unpublished panel decision in this case issued on February 6,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 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.
-2- 2
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 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
-3- 3
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.1
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
union's 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 ____________________
1. Although Woods Hole was originally named as a defendant Pier. Breault threw a heavy line to Morehead, who, in
in this action, the district court granted its motion for
summary judgment against Morehead, who has not appealed from attempting to catch it, stepped backwards into an open hatch
that decision. Consequently, Woods Hole is no longer a
party. which was flush with the deck on one of the barges. The
2. The district court did not definitively find which barge district court noted conflicting testimony as to 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 Morehead was on when injured,2 but concluded that in any
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."
-4- 4
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:
[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
-5- 5
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 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 (5th 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. ___ ______________ _________
Lykes Bros. S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474 ________________ ____________
U.S. 846 (1985). The circumstances and context of these and
related cases, however, are too removed for their mere
-6- 6
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.
III. "Vessel" Status 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,
-7- 7
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.3 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.
IV. Statutory Framework 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. 904.4
____________________
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.
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.
-8- 8
This liability of employers is termed "exclusive and in place
of all other liability of such employer to the employee."
Id. 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.5 But employees may no longer sue the vessel on
____________________
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. Id. 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 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
-9- 9
a strict liability theory for her "unseaworthiness,"6
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 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 Shipping 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
____________________
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)).
-10- 10
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(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
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
chose to do so"); Gay v. Barge 226, 915 F.2d 1007, 1010 (5th ___ _________
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.
-11- 11
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.7 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 V. Defining the Vessel's Duty of Care: The Supreme Court
Cases Cases
As Jones & Laughlin allows Morehead to bring a third- ________________
party negligence action against a vessel owner even though
the latter 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
____________________
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).
-12- 12
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 worker8 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-
____________________
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.") (other citations omitted).
-13- 13
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:
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, 114 S. 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
-14- 14
acquire actual knowledge that "unsafe _________________
conditions" had developed in the vessel's _________
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. Id., ___
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. Id. 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 ___ ___ ____ _______
-15- 15
relieving vessels from this general duty [to exercise
reasonable care to discover dangerous conditions that
develop] rests upon 'the justifiable expectations of the
vessel that the 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 owner's duties of care relative to a
longshore worker employed by an independent stevedore.9 But
the Supreme Court has not yet had occasion to analyze the
____________________
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 ________________________
(5th Cir. 1988) (worker at barge-accessible oil well).
-16- 16
vessel's duties in a dual capacity case.10 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.11 The Court has said, though, that "[o]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
____________________
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 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 employer's, can be an
elusive quest.
-17- 17
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 crew on its barges.12 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.13
____________________
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
employee, 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 handled 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 only if no genuine issue
of fact exists as to whether the worker was a seaman under
the Jones Act.").
Morehead withdrew his Jones Act claim, presumably
because he did not believe he could establish Jones Act
-18- 18
VI. Lower Court Precedent 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?
____________________
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. ___ _____
-19- 19
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.
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).
-20- 20
Rearranging duties of care as in Fanetti raises serious _______
problems, discussed hereafter, by enlarging an employer's
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 do 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.14 Cf. 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
____________________
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. _______
-21- 21
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
The seminal Fifth Circuit case was Castorina v. Lykes _________ _____
Bros. S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474 U.S. ___________ ____________
____________________
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. Traylor __________ _______
Bros., 855 F. Supp. 37 (D.R.I. 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 job on the vessel, and
granting summary judgment to the defendant given its lack of
"active control" as vessel over a condition off-board the
vessel).
-22- 22
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." Id. 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 ___ ______ ____ ____________________
(5th 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 involving a harbor worker. In Levene v. ______
Pintail Enters., 943 F.2d 528 (5th Cir. 1991), cert. denied, _______________ ____________
-23- 23
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."
Id. 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 longshoreman might encounter in
the course of his work." Id. 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." Id. 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 (5th Cir. 1989), a non-dual capacity case in which the
vessel crew was solely responsible for placing a stairway in
-24- 24
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. Id. ___
VII. Resolving This Case 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.
-25- 25
The statutory language and the legislative history of
the 1972 and 1984 Amendments plainly evidence Congress'
intent that the worker's 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 Committee's intent is that the same ____
principles should apply in determining liability of the __________
vessel which employs its own longshoremen . . . as apply when
an independent contractor employs such persons.") (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.
-26- 26
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 stevedore's
supervision, the vessel itself 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 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
-27- 27
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).
Equating employment for worker's compensation purposes solely
with construction activity, he asserts that no construction
-28- 28
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
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 should 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
-29- 29
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 principles 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 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
-30- 30
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 "construction" 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 1984,16 explicitly requires 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
____________________
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.").
-31- 31
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
compensation 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 would thus defeat one
-32- 32
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).
-33- 33
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.17
Here, however, 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 distinct 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. __________
____________________
17. Cf. Pichoff v. Bisso Towboat Co., 748 F.2d 300, 302-03 ___ _______ _________________
(5th 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).
-34- 34
- Concurring Opinion Follows - - Concurring Opinion Follows -
-35- 35
SELYA, Circuit Judge (concurring). Under existing SELYA, Circuit Judge (concurring). ______________
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 ________
-36- 36
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 follows Dissenting opinion follows
-37- 37
CYR, Circuit Judge (dissenting). As I am in CYR, Circuit Judge (dissenting). ______________
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 compensa-
tion 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
____________________
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
-37- 37
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." Id. 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.
____________________
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 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 long-
shoring services. Similar provisions are appli-
cable to shipbuilding or repair employees employed
directly by the vessel. The Committee's intent is ___ ___________ ______ __
that the same principles should apply in deter- ____ ___ ____ __________ ______ _____ __ ______
mining 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., 1st Sess. 7-8, reprinted in _________ __
1972 U.S.C.C.A.N. at 4705 (emphasis added).
-38- 38
First, footnote 6 is unelucidated dictum. See Dedham ___ ______
Water Co., Inc. v. Cumberland Farms Dairy, Inc., 972 F.2d ________________ _____________________________
453, 459 (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.2 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").
____________________
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.
-39- 39
More importantly, even if footnote 6 were to be consid-
ered 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 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 proto-
typical 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 opera-
tions")). That is to say, a contrary construction of section
905(b) would deprive dual capacity employers of their antici-
-40- 40
pated 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 con- _____ _____ __ __ ___________ ____
tractor, it is part of the ship's duty to _______ __ __ ___ ______ ____ __
exercise reasonable care to inspect its ________ __________ ____
own workers' workplace, to remove grease
spills, etc. In 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 _________________ _________
-41- 41
came after, there is no indication that the Second Circuit
has altered its position.3
II II
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"
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
____________________
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).
-42- 42
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 (1st 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 ___
-43- 43
generally 2A Arthur Larson, Workmen's Compensation Law _________ ____________________________
72.82, at 14-234 (1983).4 Thus, 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 immedi-
ately 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 "unsea-
worthiness" 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 hence-
____________________
4. Many states do recognize a dual capacity doctrine
though in circumstances inapposite here where the employer
acts in a non-landowner 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 reason- ______
ably safe product. See, e.g., Schump v. Firestone Tire & ___ ____ ______ _________________
Rubber Co., 541 N.E.2d 1040, 1042-43 (Ohio 1989). __________
-44- 44
forth, by virtue of the 1972 amendments, both single capacity
and dual capacity cases were to be subject to the same negli-
gence 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 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 steve-
-45- 45
doring 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 steve-
doring 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). _______
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
-46- 46
because it forfeits virtually all control over ensuing events
once it turns its vessel over to another legal entity (and
that entity's 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 "turn over" 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. 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); _____ ______
-47- 47
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 vessel's 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, Ltd., 667 F.2d 213, 214 (1st ________ ______________________
Cir. 1981) (noting that Scindia's "obviously improvident" _______
standard of care generally pertains only to hazards develop-
ing 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 qua 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 control exercised and the knowledge acquired by
these agents normally must be imputed to the vessel.5
____________________
5. Indeed, the following language from the House Report
severely undercuts the statutory interpretation proposed by
the en banc court:
-48- 48
The apology for the dual capacity fiction 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
"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
____________________
[N]othing 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).
-49- 49
construction employees.6 Clearly, then, the dual capacity
fiction 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
____________________
6. For example, in the companion en banc case, the employer, __ ____
Traylor 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 (5th 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.").
-50- 50
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 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 Agua y Vida en el Desierto v. ___ ____ ________________________________
Suarez-Medina, 36 F.3d 177, 181 (1st Cir. 1994) (remedial _____________
statutes are to be broadly construed).7 Consistent with this
presumptive interpretation, unless dual capacity employers
like A-K demonstrate some legislative purpose behind the
____________________
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 inter-
pretive rule may be used to expand a covered worker's 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.
-51- 51
LHWCA that is either served by Castorina or disserved by _________
Fanetti, the benefit of the doubt would belong to the _______
plaintiff-employee.8
III III
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
____________________
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 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 (e.g., shipbuilders). See, e.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 congres-
sional intendment that some dual capacity employers are
subject to suit under section 905 seems to me to be settled
beyond serious question.
-52- 52
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.9
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, "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
____________________
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 v. 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 ______________ ________
1179, 1187 (7th Cir. 1984) ("[F]or 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). _____ _________
-53- 53
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 any, 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 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 bifurca-
tion 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
-54- 54
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 alone 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
employer's 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 employer's on-site construction
division supervisors customarily made workplace safety deci-
sions 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 facie showing that primary responsibility for workplace
safety had been adequately delegated to its "construction
division," the Scindia rationale would contemplate that the _______
-55- 55
injury sustained by the plaintiff-employee have occurred in a
workplace area not under the "active control" of the dual
capacity employer's "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 unimpeach-
able: 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
-56- 56
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 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,
-57- 57
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 "reason- _______
able care" required for actionable negligence, it nonetheless
serves 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
-58- 58
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.
-59- 59
Don W. Kathriner v. Unisea, Inc., a Washington Corporation , 975 F.2d 657 ( 1992 )
irene-c-roach-irene-c-roach-as-mother-and-personal-representative-of , 857 F.2d 1575 ( 1988 )
Edmonds v. Compagnie Generale Transatlantique , 99 S. Ct. 2753 ( 1979 )
Scindia Steam Navigation Co. v. De Los Santos , 101 S. Ct. 1614 ( 1981 )
Southwest Marine, Inc. v. Gizoni , 112 S. Ct. 486 ( 1991 )
Howlett v. Birkdale Shipping Co., S.A. , 114 S. Ct. 2057 ( 1994 )
Illinois Constructors Corp. v. Logan Transportation, Inc. , 715 F. Supp. 872 ( 1989 )
Mosquera-Perez v. Immigration & Naturalization Service , 3 F.3d 553 ( 1993 )
Heck v. Humphrey , 114 S. Ct. 2364 ( 1994 )
Bank of New England Old Colony, N.A. v. R. Gary Clark, Tax ... , 986 F.2d 600 ( 1993 )
Pasquale Fanetti v. Hellenic Lines Ltd. , 678 F.2d 424 ( 1982 )
Helvering v. Stockholms Enskilda Bank , 55 S. Ct. 50 ( 1934 )
Dallas County Commissioners Court v. Richardson , 464 U.S. 1009 ( 1983 )
Hogar Agua Y Vida en El Desierto, Inc. v. Suarez-Medina , 36 F.3d 177 ( 1994 )
Kathleen Russo, Wife Of/and Herbert L. Gay v. Barge 266 and ... , 915 F.2d 1007 ( 1990 )
Seas Shipping Co. v. Sieracki , 66 S. Ct. 872 ( 1946 )
William Addison v. Bulk Food Carriers, Inc., and Third-... , 489 F.2d 1041 ( 1974 )
Lee A. Pichoff, Jr., Cross-Appellant v. Bisso Towboat Co., ... , 748 F.2d 300 ( 1984 )
lester-levene-sr-and-shirley-levene-american-casualty-company-of , 943 F.2d 528 ( 1991 )
Pettibone Corporation v. Carl Easley , 935 F.2d 120 ( 1991 )