USCA1 Opinion

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

______________________

brief for appellant.

Thomas E. Clinton, Robert E. Collins
__________________ _________________

and Clinton & Muzyka, P

____________________

on brief for appellees.

Myles W. McDonough and Sloane and Walsh on
__________________
________________

brief for J.M Cashm

Inc. and Cashman, KPA, A Joint Venture, amicus curiae.

_____________
____________________
October 10, 1996
____________________

OPINION EN BANC
____________________

____________________

*Of the First Circuit, sitting by designation.

CAMPBELL,

before the

Senior Circuit Judge.

______________________

en

banc

court

following

This

our

appeal

vacating

comes

of

an

unpublished panel decision in this case issued on February 6,

1996, affirming the decision

day

of the district court.

On the

of the panel opinion, another panel of this court handed

down

a decision

both

appeals

construing the

in a

DiGiovanni, Jr. v.
________________

vacated

materially

federal statute

different

Traylor Bros, Inc.,

____________________

way.

underlying

Rocco P.
_________

No. 94-1775.

We

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

working on

harbor worker injured

a construction barge, appeals from

while

a judgment of

the district

court dismissing his negligence

Atkinson-Kiewit,

J/V

("A-K"),

employer and the

charterer of the

firm that

barge.

this action under section 905(b) of the

Workers' Compensation Act (LHWCA),

authorizing covered employees

actions brought

the

his

brought

901 et
__

seq.,
____

vessel as a

third

the vessel.

In

A-K is immune from tort

by covered employees like Morehead.

bare boat charterer of

both

Longshore and Harbor

party for injury caused by the negligence of

its capacity as Morehead's employer,

was

Morehead

33 U.S.C.

to sue the

action against

the barge on

But as

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.

-22

The case raises difficult questions

in

this

circuit as

to the

liability

capacity employer under the LHWCA.

of first impression

of a

so-called dual

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

Court has endorsed the

third-party).

While the Supreme

bringing of section 905(b) negligence

actions against a dual capacity defendant in its vessel owner

capacity,

the Court has yet

point

which

at

employer

responsibility begins.

Nor

extent principles laid down

longshore

workers against

to define, in

responsibility

has the

such a case, the

ends

and

Court decided

vessel

to what

in negligence actions brought by

a vessel

apply to claims by non-stevedoring

owned by

a third-party

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

complete the

Guy

Atkinson

construction of

Narragansett Bay

in Rhode

Co.

and

Kiewit

the Jamestown

Island.

In

Eastern

to

Bridge spanning

order to

transport

materials and equipment around the bay to the work sites, A-K

bare

boat chartered several barges.

this case,

the CHER 106 and

The barges involved in

the HUGHES 707, were

-33

flat deck

barges

A-K

floating platforms bare of structures or equipment.

also leased

two

tugs from

Woods

transport the barges where needed.

Hole Towing

Co.

to

The tugs themselves were

crewed by Woods Hole employees.1

A-K hired

bridge.

carpenters from

Their responsibilities

a local

union to

included cutting timbers and

steel and setting up concrete forms for pours.

union's requirements

build the

prevented the tug captain

As the

local

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,

707 from

the

Steven Breault,

CHER 106.

were untying

A barge

was

connection with her going off hire.

to be

the HUGHES

surveyed

in

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.

party.
which was

Consequently,

flush with the

Woods Hole

deck on

is

one of the

no longer
barges.

a
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

reasonably safe proffer to one expected to walk thereon.

of a
The

court

would therefore find the barge,

unseaworthy,

whichever one it was,

but under the statute (33 U.S.C.

905(b)) this

is irrelevant."

-44

event,

Breault

(which

the

single open

hatch

was

insufficiently obvious.

testified that he had opened the hatch on the HUGHES

he named

as the

before the accident,

barge to

be surveyed)

because A-K was

a few

days

preparing for an

off-

hire survey before returning the barge to the owner.

Breault

testified that

to open

a supervisor carpenter

had told him

the hatch.

Morehead filed a complaint against A-K and Woods Hole on

April

22,

1991,

alleging

unseaworthiness, maintenance and

section 905(b) of the

motion

for summary

all claims

A bench

1994,

LHWCA.

Act

Following the denial

on April

court

11, 1994.

issued its

under

of A-K's

voluntarily withdrew

except his claim for negligence

district

negligence,

cure, and negligence

judgment, Morehead

trial commenced

the

Jones

under the LHWCA.

On

Findings

April 29,

and

Order

dismissing Morehead's complaint and A-K's cross-claim against

Woods Hole.

It wrote:

[T]he court
of

does not find

[appellee] viewed in

pro hac vice owner.

it negligence
its capacity as

Rather, it

appears

to be a temporary condition created by it

solely in its capacity
.

These

separate,

as charterer. . .

two capacities
even though

are

they be

legally
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.

___

parties

agree

that the

district

-55

court

902(21)).

actually meant

The

to

distinguish between

the appellee as vessel

and as employer.

We also interpret the district court's order in that fashion.

Judgment

was entered

on May

4, 1994

in A-K's

favor.

This appeal followed.

II. Standard of Review

II. Standard of Review

district

court's

fact-based

negligence are reviewable only for

findings

relative

clear error.

See,
___

Levene
______

v. Pintail Enters., 943

________________

F.2d 528, 535-36

1991),

cert.

940 (1992).

denied, 504

U.S.

to

e.g.,
____

(5th Cir.

However, the

_____________

question

of whether

the district

court applied

standard of care is one of law, subject to

review.

the proper

de novo appellate
__ ____

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

applied in deciding what

in its separate

and as owner

explain

the criteria

duties of care to attribute

capacities, respectively, as

(charterer) of

cited along with its

to section

not

the barge.

it

to A-K

LHWCA employer

Rather, it

simply

conclusions existing precedent relative

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).

related

cases,

The circumstances and context of these and

however,

are

too removed

for

their

mere

-66

citation

to

reveal the

analysis

that

the district

court

applied

in this

case.

provide

clear guidance.

Court will eventually

dual

status

employers

comparable to these.

the

legal

presented

Nor

We

Under

can only hope

of harbor

of the LHWCA

that the Supreme

elucidate the standards

workers

applicable to

in circumstances

Until then, we do our best

principles that,

here.

does the language

we

believe,

to outline

govern the

those principles

and

facts

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.

district court provisionally assumed, without

The

deciding, that

the barge on which Morehead was injured was a "vessel" within

the LHWCA.

Section

905(b) permits an LHWCA employee

in negligence only "[i]n the event of

the

negligence of a vessel."

defines "vessel" to include

parties

does

it

that may be held

on appeal

themselves "vessels"

v.

injury . . . caused by

Section 902(21)

of the LHWCA

a bare boat charterer

liable under section

among the

905(b).

not contest its status as bare boat charterer.

asserted

Unisea, Inc.,
____________

determine whether a

that the

HUGHES

under the LHWCA.

975

F.2d 657,

662

to sue

and CHER

A-K

Nor has

were not

See, e.g., Kathriner

___ ____ _________

(9th Cir.

1992)

(to

structure is a "vessel" under the LHWCA,

-77

most courts have applied the general definition in 1 U.S.C.

3 of a

capable

water");

"watercraft or other artificial contrivance

of

being used,

as

accord DiGiovanni
______ __________

106, 108-09 (D.R.I. 1993).

means of

used, or

transportation

v. Traylor Bros., 830

______________

on

F. Supp.

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

section

905(b)

claim

may

be

brought.

IV. Statutory Framework

IV. Statutory Framework

The LHWCA establishes

compensation

irrespective

prescribed

scheme

of

fault,

compensation

a comprehensive federal

which

for

to

holds

worker's

employers

securing the

qualified

injured in the course of their employment.

liable,

payment

maritime

of

the

employees

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

connection to
at 659-63
LHWCA).

have a substantial employment-related

a vessel in navigation");
__ __________

(applying tests

of "vessel"

Plaintiff withdrew his

Kathriner, 975 F.2d

_________
under Jones Act

maritime claims,

and

including

the claim of Jones Act negligence.

4.

Section

employer

904

provides

in

relevant part:

"(a)

Every

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."

U.S.C.

904.

-88

33

This liability of employers is termed "exclusive and in place

of all

Id.
___

other liability

of such employer

to the

employee."

905(a).

Section 905(b)

employees

of the

Act

to bring an action

authorizes certain

against the vessel

covered

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
person

employment, including
engaged in

worker including

any

longshoreman

longshoring operations,
a

ship repairman,

and

or

other

any harbor-

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

this chapter caused by

then

the negligence of a vessel,

such person, or

recover

damages by

action

against such

accordance with

covered under

anyone otherwise entitled to

reason thereof,
vessel

as a

the provisions

may bring

an

third party

in

of section

933 of

this title, and the employer shall not be liable to

the vessel for such damages
and any
shall

agreements or
be void.

vessel to

warranties to the

contrary

If such person was employed by the

provide

stevedoring services,

action shall be permitted

by the

directly or indirectly

no

such

if the injury was caused

negligence of persons engaged

stevedoring services to the vessel.

in providing
If such person

was employed to provide shipbuilding, repairing, or

breaking

services and

the owner, owner pro

charterer of
permitted,

such person's

hac vice, agent, operator, or

the vessel,
in

no such action

whole or

indirectly, against the

(in

employer was

in

part

shall be

or directly

injured person's

or

employer

any capacity, including as the vessel's owner,

owner pro hac vice, agent,

operator, or charterer)

or

of the

against the

employees

employer.

The

liability of the vessel under this subsection shall

not be based upon
a breach

the warranty of seaworthiness or

thereof at the time

the injury occurred.

The

remedy provided

in this

subsection shall

be

-99

strict

Congress

liability

having

longshore and

LHWCA.

of the

theory

eliminated

for

the

harbor workers in

her

latter

"unseaworthiness,"6

as

remedy

the 1972 Amendments

The 1972 Amendments require employees

vessel, bar

a vessel's obtaining

for

to the

to show fault

of indemnification

from

the

employer,

and

compensation recoverable

have

from an

Bulk Food Carriers, Inc., 489

__________________________

1974).

the

increased

the

employer.

F.2d

See
___

1041, 1042

Addison v.
_______

(1st

Cir.

Focusing on longshore workers who, to date, have been

occupational group

chiefly

discussed in

Supreme Court

cases under the

LHWCA, the Court described these

designed

shift

"to

compensating injured

prevent

worker's

injuries:

more

of

the

responsibility

longshoremen to the party

the

changes as

stevedore-employer."

for

best able to

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

categories

of

harbor

of negligence actions

workers

against

by certain

vessel

in

____________________

exclusive of all other remedies against

the vessel

except remedies available under this chapter.

33 U.S.C.

6.

See 33 U.S.C.
___

remedy

that was

condition
the

905(b).

established

Unseaworthiness is
"simply by

a maritime

showing that

some

or appurtenance on board the vessel at the time of

accident

was

stevedore-employer
Keller,
______

905(b).

unreasonably
was

the

sole

hazardous,
cause

of

even
the

if

the

hazard."

38 F.3d at 23 (citing Seas Shipping Co. v. Sieracki,

_________________
________

328 U.S. 85, 94 (1946)).

-1010

circumstances where the

offending vessel.

In

employer was also

the owner of

the

these so-called "dual capacity" cases,

Congress barred employees providing "shipbuilding, repairing,

or

breaking services"

for negligence

in any
___

from suing the

capacity.

Amendments did not purport

33

employer-vessel owner

U.S.C.

905(b).

The

to prohibit LHWCA employees other

than in the described categories from suing for negligence in

dual capacity

Cong., 2d

cases.

See
___

Sess., reprinted
_________

H.R.

Rep. No.

98-570(I),

in 1984 U.S.C.C.A.N.
__

98th

2734, 2741

(hereafter

this

1984 U.S.C.C.A.N.)

language [in

employee's

("The Committee

905(b)]

right to bring a

not be

v.

construed to

cause of action,

circumstances indicated within

Sea-Land Serv., Inc., 12

_______________________

intends that

limit an

except in the

the language."); cf.

___

F.3d 381,

386 (2d

Guilles
_______

Cir. 1993)

(affirming relief cook's judgment against negligent employer-

vessel

owner

. . . shows

employees

and

explaining

that Congress knew

from being

able to

that

"[t]he

how to

preclude a

1990)

("[T]he

occupations listed:

breakers.").

905(b)

change

class of

sue an employer-vessel

chose to do so"); Gay v. Barge 226, 915 F.2d

___
_________

Cir.

1984

bar

shipbuilders,

is

if it

1007, 1010 (5th

specific

ship repairers

to

the

and ship

The Supreme

905(b)

to

permit

Court

had previously

covered

negligence actions against

employees

interpreted

to

section

bring third-party

their employer qua

vessel owner.

-1111

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

fellow longshore

unnecessary).

fall

workers caused

1984 Amendments,

have been

construction of

a third-party

vessel

capacity.7

does not

Congress expressly excepted in the

supra, Jones & Laughlin

_____ ________________

bring

that

the injury would

As Morehead's occupational category

within any of those

current

from them where

the

statute to

negligence

would appear under

allow Morehead

action against

A-K in

to

its

To prevail, however, Morehead has to show

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

________________

party negligence

allows Morehead to

action against

bring a third-

a vessel owner

even though

the latter is simultaneously his statutorily-immune employer,

we

need to find

the principles for

alleged acts of negligence

determining whether the

the open hatch and

failure to

____________________

7.
a

The parties have not disputed on appeal that Morehead is

statutorily

employer.

covered

employee

of a

statutorily

covered

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

under section 905(b).

-1212

from suing

warn

qua

are attributable to A-K qua vessel owner rather than

employer.

The Supreme Court has indicated that Congress

left to the courts the task

care.

of defining the vessel's duty of

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

longshore

'left

resolved

workers

are

to be

duty to

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

care

Supreme Court

considered the

duty of

that a vessel owner owed to an injured longshore worker

who was

this

(1981), the

employed by

common

stevedore,

an independent

triangular

and

duty of care

responsibility upon the

with

actions

Congress'

relationship

longshore worker8

limiting the vessel's

intent

stevedoring firm.

at least

the

so as

For

vessel,

Court held

to put the

that

chief

independent stevedore was consistent

to

permit

third-party

negligence

against the vessel but to eliminate the vessel's no-

____________________

8.

In

was

the

Howlett,
_______
employer
Edmonds
_______
(1979)
fault,

Howlett, the Court suggested

_______
typical
114 S.

one
Ct.

in most

in

the

at 2062

that this relationship

longshoring
("The injured

business.

See
___

longshoreman's

instances, an independent stevedore, see

___

v. Compagnie Generale Transatlantique, 443 U.S. 256

___________________________________
must pay
but is

the

statutory

shielded from

any

benefits regardless
further liability

longshoreman.") (other citations omitted).

-1313

of

to the

fault liability (the "unseaworthiness" claim).

case

that

also

involved

independent vessel,

longshore

the Court restated

In Howlett, a
_______

worker

The first, which courts have come to call

"turnover duty,"
______________

condition
commencement

of

the
of

relates
ship

stevedoring

reasonable

have

to prevent

longshoremen in areas

the

operations

shipowner must

care

the

applicable once

operations

provides that a

to
upon

stevedoring

. . . . The second duty,

begun,
exercise

injuries to

that remain

under

the "active control of the vessel.". . .

_____________________________
The

third

intervene,"
_________

duty,

called

concerns

the
the

an

the vessel's limited

residual duties:

the

suing

"duty to
________
vessel's

obligations

with

operations in areas

regard

to

under the

cargo

principal

control of the independent stevedore.

Howlett,
_______

114 S.

Ct. at

2063 (citations

omitted) (emphasis

added).

This court

recently applied

United States, 38
______________

F.3d

these duties in

16 (1st

Cir.

1994), a

involving the triangular relationship of

contractor, and longshore worker.

a vessel prior

to "turnover":

"duty

condition."

of safe

Keller v.
______

case

vessel, stevedoring

We described two duties of

the "duty

Id.
___

at

to warn" and

23-24.

We

described three "continuing" duties of care:

First, the vessel owner might remain

under
actual

such a

duty

also

were

physical control or

it

to

retain

custody of a

the

further

portion

of the vessel, or participate in

stevedoring

operations.

Scindia,
_______

451

U.S. at

167, 101 S. Ct.

Second,

a duty to intervene might attach

in

event the

the

at 1622 . . . .

vessel owner

were to

-1414

acquire

actual knowledge
_________________

that

"unsafe

conditions" had developed in the vessel's

_________
appurtenances

since

turnover, that

the

stevedore-employer
unsafe

will not

condition,

and
___

address the
that

the

stevedore's

decision

not to

remedy the

developing

hazard

was

"obviously

improvident" in the circumstances.

at 174-75, 101 S. Ct. at 1625-26.

Id.,
___
Third,

even absent actual control, participation

or knowledge, a post-"turnover"
arise if the vessel owner
by

contract,

monitor

statute

stevedoring

duty may

was obligated,
or

custom,

to

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

duties to

a longshore worker who had fallen from a ladder on

board the vessel.

its turnover nor

We ruled that the district

its continuing

court had not

erred in

relying on

testimony based on

which indicated fulfillment

industry standards,

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

the

did the Supreme

independent

Court in Scindia,
_______

stevedore's

greater

this court noted

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

reasonable

care

develop]

from

to

rests upon

vessel that

the

general

discover

'the

duty

dangerous

[to

exercise

conditions

justifiable expectations

stevedore

competence and see to the

(citation

this

would

perform

with

of

that

the

reasonable

safety of the cargo operations.'")

omitted); Scindia,
_______

451

U.S. at

172 ("[the

1972

Amendments] did not undermine the justifiable expectations of

the vessel

that the stevedore would

competence and see to

perform with reasonable

the safety of the cargo

operations").

Further supporting the vessel owner's justifiable reliance on

the

stevedore is

legislative

its

and

workers

(citing

that the

is "subject

administrative prescriptions

a 'safe'

33 U.S.C.

C.F.R.

latter

workplace."

941 and

1918.1-1918.106,

Keller,
______

to detailed

for affording

38 F.3d

at 24

accompanying regulations,

1918.25, and

29

Scindia, 451 U.S.

_______

at 170).

In

outlined

Scindia and
_______

vessel

Howlett
_______

the Supreme

owner's duties

longshore worker employed by

of

Court, as

care

noted,

relative

an independent stevedore.9

to a

But

the Supreme Court

has not

yet had occasion

to analyze

the

____________________

9.

Other

covered

courts have

employees

other

applied
than

familiar tripartite context.

Scindia
_______
longshore

duties to
workers

See, e.g., Elberg, 967

___ ____ ______

LHWCAin

the

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).

-1616

vessel's duties in a dual capacity case.10

considered

to what

non-longshoring

operandi

acting

harbor

often differ

workers.11

[section

degree its

workers,

Scindia analysis
_______

whose

duties

considerably from those

The Court has

905(b)] does

Nor has the Court

make

said, though, that

it clear

that

applies to

and

modus

of longshore

"[o]f course,

a vessel

owner

as its own stevedore is liable only for negligence in

its 'owner'

capacity, not for negligence

[the insured employer] capacity."

in its 'stevedore'

Jones & Laughlin, 462 U.S.

________________

at 531 n.6.

How to distinguish

between vessel owner

negligence and

employer negligence

owner

and

where the same entity

employer

statutory right to

is

sue is

key

here,

is both vessel

because

solely for injury

vessel negligence of a vessel as third-party.

Morehead's

caused by

the

For other work

____________________

10.

In Jones & Laughlin, the negligence of the dual capacity

________________

defendant qua vessel had been conceded.

11.

Longshore

load

workers such

as

those in

Scindia typically
_______

and unload cargo ships that are operated full-time by a

master

and

distinguished

crew.
from

Vessel

negligence

stevedore negligence

can
by

often

be

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.

may

construction barges

work (as

here) on

Harbor workers, however,

that are

moved

about by

tugs and have no

as such.

As part of their employment, the harbor workers may

do whatever is

needed from

fully-dedicated professional crew

time to time

to tend lines

and

service the barges, besides performing construction duties as

carpenters, electricians, or the
responsibilities

fall within

like.

Thus, assessing what

the purview

of the

vessel's
______

duty of care, as distinguished from the employer's, can be an

elusive quest.

-1717

injuries

expressly

within

the

provides

scope

that

of his

he

compensation prescribed under the

must

employment,

accept

the

the

LHWCA

worker's

LHWCA as "exclusive and in

place of" all other employer liability.

further

defendant

the

complicates

this

case:

905(a).

as

the

has two capacities, so too, it might be said, does

plaintiff.

perform

matter

33 U.S.C.

Morehead was

both carpentry and

employ a separate crew on

a carpenter, but

scowmen's duties.

its barges.12

was hired to

A-K

did not

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.
and
tugs.

As noted, the tugs that towed the barges were captained

crewed by
These

employees of
employees

barges; under union

Woods Hole, which

did not

handle

supplied the

the lines

rules, only carpenters/scowmen

by A-K (such as Morehead) did.

on

the

employed

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.
at

2183-84 (citing

McDermott Int'l, Inc. v.

______________________

U.S.

337, 347 (1991)).

502

U.S. 81 (1991), the

rigging

foreman

Supreme Court held

who handled
repair

matter of law from seeking a tort

because

specifically

ship

Wilander, 498
________

In Southwest Marine, Inc. v. Gizoni,

______________________
______

platforms to vessels under

merely

See Chandris, 115 S. Ct.

___ ________

repairers

lines

that a shipyard

connecting floating

was not precluded

as a

remedy under the Jones Act

are

enumerated under the LHWCA.

among

those

jobs

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.
worker
of

A maritime

is limited to LHWCA remedies only if no genuine issue

fact exists as

to whether the worker

was a seaman under

the Jones Act.").

Morehead
because

he

withdrew
did not

his

believe

Jones

Act

he could

-1818

claim,

presumably

establish

Jones Act

VI. Lower Court Precedent

VI. Lower Court Precedent

While

the

capacity cases

capacity

Supreme Court

has

said

beyond giving approval

defendants

in their

vessel

little about

to the suing

whether

the alleged negligence was due

employer or

qua vessel,

latter instance.

And,

with recovery

of dual

owner capacity,

circuits have decided cases similar to ours.

dual

some

They have asked

to the defendant qua

allowed only in

the

principles borrowed from Scindia have

_______

been applied to harbor workers as well as longshore workers.

Applying

Scindia to
_______

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

vessel

owner?

emphasized

such awareness also be attributed

And

vessel

as we

note

owner's

supra, Scindia
_____ _______

reliance

upon

the

to it as

and Keller
______

presumed

expertise of the stevedore, an independent contractor.

the vessel owner is

also the stevedore, is it

Where

reasonable to

attribute such reliance?

____________________

seaman status.

Nonetheless,

our

on

attention

the

Morehead has attempted to focus

vessel-type

responsibilities

that

Breault

performed

discussed infra.
_____
be

in

the

period

the

fact-specific inquiry

status, we place little weight

hired

the

injury,

as

While an emphasis on vessel-type duties may

appropriate for

vessel

before

and construction
to perform both.

into

on this attempt to

activities when these

seaman

bifurcate

workers were

The definition of a covered employee

under the LHWCA excludes "a master or member of a crew of any

vessel."
this

33

U.S.C.

902(3).

It

seems inconsistent

exclusion for Morehead to buttress

LHWCA with

arguments portraying a

his claim under the

fellow employee, Breault,

as if he were a member of the crew of the vessel.

-1919

with

See infra.
___ _____

Concerns

Fanetti
_______

of

this

nature

led the

Second

Circuit

in

v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir. 1982),

___________________

cert. denied,
_____________

longshore

463 U.S.

worker's claim

1206

(1983),

to indicate

against a dual

that

capacity defendant

would be analyzed differently from a claim against a separate

shipowner

brought

stevedore.

deck

In Fanetti,
_______

by an unsafe

argued that

by

1) in

the

employee

a longshore

condition.

its role

of

independent

worker was injured

The dual

as

an

on

capacity defendant

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

escape

liability

"employer

hat."

Circuit rejected the defendant's

in negligence

Relying on

as

vessel

a dissent by

attempt to

by seizing

its

Judge Friendly in

Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 687

_______
____________________

(2d Cir.)

(Friendly,

U.S.

J.,

dissenting),

(1978),

the court of appeals

greater
_______

duty of care

cert. denied,
_____________

ruled that a

when there is

responsible for

workplace conditions,

owner

to oversee

board.

may rely

See
___

Fanetti, 678
_______

F.2d at 689-90).

929

vessel assumes a

no independent employer
___________

the safety

F.2d at 428

439

upon whom

of the

the vessel

workplace on

(citing Canizzo,
_______

579

-2020

Rearranging duties of care

problems, discussed

tort liability

Cf.
___

hereafter,

beyond the

Howlett, 114
_______

S. Ct.

as in Fanetti raises serious

_______

by enlarging

purposes of the

at 2063.

an

employer's

1972 Amendments.

Fanetti,
_______

moreover, was

decided

before

Jones & Laughlin

_________________

Supreme Court.

would

was

handed down

in

the

We do not think that the Second Circuit today

endorse Fanetti's
_______

broadened duty

of care,

given the

Supreme Court's remark "that a vessel owner acting as its own

stevedore

is

capacity, not

liable

only

for negligence

for negligence in

the

Court expected

Scindia to carry
_______

No later case

the

over to dual

from the

its

its 'stevedore'

Jones & Laughlin, 462 U.S. at 531 n.6.

________________

that

in

'owner'

capacity."

This comment suggests

limited

vessel liability

capacity situations as

Second Circuit, nor

from any

in

well.

other

circuit, has been called to our attention following Fanetti's

_______

enlargement

of

vessel's

duty

in

dual

capacity

situation.14

Second

Cf.
___

Circuit

Guilles, 12
_______

decision

contrary to Fanetti
_______

action under

F.3d at

citing

and ruling

section 905(b)

383, 387

(a recent

Circuit

authority

Fifth

only that a

valid cause

existed, where the

of

parties had

____________________

14.

Fanetti
_______

might have reached

liability without

applying

the same result

a broader

duty

of vessel

of care.

The

defendant did not dispute that the vessel's crew created

hazard

while

operations.
situation,

performing
See
___

the

work

Fanetti,
_______

defendant

678
qua

unrelated
F.2d
vessel

at

to

the

longshoring

426.

In

arguably had

this
active

control over the crew and knew or should have known about the
injury-causing

actions,

making

Scindia standards.
_______

-2121

it

liable

even

under the

stipulated

to

the vessel's

termed dicta, we

do not

negligence).

feel free to

Whether or

overlook the

not

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

Court's

this approach

limiting of a

as

in keeping

vessel's duty of

with

the Supreme

care (e.g., Scindia

and Jones & Laughlin),

________________

injured

their

workers the

____

_______

and with Congress' intent to

provide

same

remedies, regardless

employer or another happens

to be the

of

whether

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.

Atkinson-Kiewit, J.V.,
______________________
(applying

Scindia duties and

_______

partial judgment
Bros., 855 F.
_____
94-1775

894 F.

on the

pleadings);

July 27,

486

(D. Mass.

1995)

denying defendant's motion for

Supp. 37 (D.R.I.

(1st Cir.

Supp.

See, e.g., Halpin v.

___ ____ ______

DiGiovanni
__________

v. Traylor
_______

1994), appeal docketed,

_______________

1994) (finding no

No.

violation of

Scindia
_______
of the
over or

duties where hazard was obvious following "turnover"

vessel, defendant
knowledge of leak

employment operations,
rise to

a duty

and

as vessel lacked

"active control"

from equipment placed

the circumstances

to intervene);

aboard for

did not

give

Koernschild v. W.H. Streit,

___________
_____________

Inc., 834 F. Supp. 711 (D.N.J. 1993) (applying Scindia duties

____
_______
and denying

summary judgment to the

dispute existed concerning

defendant where factual

the plaintiff's awareness

of the

hazard); Coats v. Luedtke Eng'g Co., 744 F. Supp.

_____
__________________

884 (E.D.

Wisc. 1990)

providing

employee

(deeming

a safe

"employer" responsible

passageway to

his job

for

on the

vessel, and

granting summary judgment to the defendant given its

"active

control" as

vessel over

vessel).

-2222

a condition

lack of

off-board the

846 (1985).

during

cargo

owner knew

vessel

There, a longshore

operations

of the

safe.

alleged

harm qua

The

Fifth

and that

shipowner performs

1033.

Noting

stevedoring

that

vessel and

Circuit

compensation scheme "requires us

of the shipowner

worker exposed to

asbestos

his employer-vessel

failed to

stated

that

to separate the

of the stevedore,

make the

the LHWCA

negligence

even when

its own stevedoring activities."

that

the

activities,

alleged

the

court

harm had

refused

arisen

Id. at
___

during

to impute

knowledge of this danger by the employer to it as vessel.

explained:

the

any

It

To impute this
employer
tort

would be to

for

hold it

damages

negligence as
to

knowledge to a shipowner-

arising

from

its

stevedore, and effectively

eliminate the

exclusivity provisions

of sections 905(a) & (b).

contrary to

liable in

This result is

the language and

the Act

as amended.

that the

duty owed

purpose of

We therefore

hold

by a shipowner

to a

longshoreman under section 905(b) is that

established by Scindia
_______
this

duty

is

diminished

and its

neither

when

the

progeny;

heightened

nor

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
_________

apply the Scindia standard

_______

later

case,

the Fifth

was relatively

to the shipowner-employer.

Circuit

applied Scindia

in

easy to

In

a more

_______

complex

situation involving a

Pintail Enters., 943 F.2d 528

_______________

harbor worker.

In Levene v.
______

(5th Cir. 1991), cert. denied,

____________

-2323

504

U.S.

940

(1992),

equipment operator

who

the

injured employee

performed other

was

maritime

heavy

tasks

as

well.

captain

owner's barge,

had instructed

Levene

which blocked access to

up.

the

grease and

barge, where

were present on the deck.

Applying

arising from

Levene
______

court

the

Levene was injured

on

scrap materials

See id. at 530.

___ ___

Scindia duty
_______

of

active control over a

rejected

another

the particular barge

they had been instructed to pick

other owner's

to untie

the

turnover

and the

duty

dangerous condition, the

employee's claim.

The

court

explained that Scindia did not mandate "extending the duty of

_______

a shipowner

to protection against hazards

Id. at 534.
___

"[W]e

'reasonable care'

on another ship."

decline to fashion a general

that would require a

standard of

shipowner to protect

against any and all hazards a longshoreman might encounter in

the course of

view

his work."

"the fleeting

Id.
___

contact

Further,

the court did

between Pintail

not

[the employer-

vessel owner]

and the BB-242 [the separate owner's barge] as

the

control that

kind

liability."

of

Id. at 535.
___

active control

when

over a

could

in

a finding

of

It noted that the duty arising from

hazardous condition may

the dangerous condition is

id. (discussing
___

result

on the vessel

be triggered

itself.

Masinter v. Tenneco Oil Co., 867

________
________________

See
___

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

-2424

a way

that caused injury

to a

"contractually bound to conduct

____________________

remained

in

obligation").

control

of

Even though

the

worker, and

the vessel

was

the drilling operations and

vessel

to

effectuate

the captain "temporarily

this

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.

VII.
VII.

Resolving This Case

Resolving This Case

We agree

that

the

To do so, a

with the

duties of

applied in

into

Id.
___

Fifth Circuit, for

care

described

dual capacity cases

vessel owner, each

independent

separately holding

assisted

employment

in this

process

by

arrangements assigning

"vessel" side of

its operation.

be

facts allow.

the employer-shipowner

employer

under principles suggested in Scindia.

_______

be

Scindia should
_______

insofar as the

court may have to divide

hypothetical

in

similar reasons,

and independent

the duties

allocated

A court may sometimes

the defendant's

certain personnel

internal

to the

On occasion, however,

the

duties

and work

worker may

arrangements pertaining

be so foreign

context that Scindia's

_______

point of departure.

to those in

to a

suing harbor

Scindia's stevedoring
_______

analysis will become

no more than

Nonetheless, Scindia's general approach,

_______

at least, can be followed and,

in many cases, some or all of

its express analysis may be useable.

-2525

The statutory language

the

1972

and

intent that

remedy for

1984

Amendments

legislative history

plainly evidence

the worker's compensation scheme

all covered workers, regardless

commercial practice

U.S.C.

and the

in regard to

of

Congress'

be the primary

of an employer's

vessel ownership.

See 33
___

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

No.

92d

92-1441,

Cong.,

2d

Sess.,

supplied); H.R. Rep.

reprinted
_________

in
__

1972

U.S.C.C.A.N. 4698, 4705 ("[T]he bill

a longshoreman

provides in the case of

who is employed directly by

the vessel there

will be no action for damages if the injury was caused by the

negligence

of

persons

services . . . .

principles
__________

should

The

engaged

in

performing

Committee's intent

apply

in

determining

longshoring

is that the

liability

same
____

of the

vessel which employs its own longshoremen . . . as apply when

an independent contractor

supplied).

The

1972

employs such persons.")

Amendments

concerns of employers, vessels, and

carefully

(emphasis

balanced

covered workers.

the

We are

not disposed to upset that balance by expanding the liability

of employers

the statute

that act simultaneously as

vessel owners, when

does not call for such a reading and the Supreme

Court has cautioned against it.

-2626

As already observed, Scindia will

_______

direct guidance on

sometimes afford less

those duties owed to harbor

it does on those owed to longshore workers.

workers than

Courts will need

to

decide,

on a

case-specific

worker's employment arrangement

basis,

whether the

harbor

sufficiently resembles

that

in Scindia to make particular specifics germane.

_______

Here,

analogous

the

out

supervision,

exercise

arrangement

to make Scindia a useful guide.

_______

reasoned that

carrying

employment

once longshore

their

the

vessel

reasonable

conditions; rather,

employer to do so.

cargo

care

is

sufficiently

The Scindia Court

_______

workers came aboard

duties

itself

had

to inspect

it could rely on

under

no

for

and began

stevedore's

general

duty

to

unsafe workplace

the longshore worker's

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

thereon.

lines and carrying

Both

scowmen's work

for A-K qua

types

of activities

construction

were assigned to them and

employer.

daily instructions from

Workers like Morehead

were performed

received their

periodically with them to discuss

site-specific safety issues.

limited liability

and

A-K's carpenter-foremen, while A-K's

project safety manager met

of

out construction activities

of the

Therefore,

Scindia's principle
_______

vessel sensibly

and logically

applies, because the employees effectively assumed control of

-2727

the

barges

employer.

working

A-K

in its

capacity

as

their

A-K qua shipowner had no separate captain and crew

assigned to

(the

under

open

the barge.

hatch

The allegedly

and

the

absence

of

negligent conditions

warnings)

were not

attributable to the errors of separate maritime agents acting

specifically

for the

vessel.

negligence were those of

Rather

the alleged

fellow harbor workers acting within

the scope of their daily employment for the employer.

U.S.C.

acts of

905(b) (prohibiting liability of

Cf. 33
___

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

have known, of

injury).

some defect

Morehead argues

in the barge

the duty to

that later

only that we should deem

caused

that A-K

as vessel violated duties it owed him because, at the time he

was injured, A-K as

asserted

knowledge"

2063

to

have

vessel (rather than A-K as

had

of the open

(noting

appellant

"active

hatch.

control"

Cf.
___

confined

employer) is

over

Howlett, 114
_______

arguments

to

or

"actual

S. Ct. at

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

-2828

purpose, hence

no employment

purpose, was being

pursued at

the time of his injury.

He draws support from

court's findings that the barges

and were

not

carrying

were set alongside the pier

construction

emphasizes that A-K had instructed

the district

equipment.

Morehead

Breault to open the hatch

to air the barge out so that A-K could exercise what Morehead

argues

was a

examine

the

further claims

vessel function

barge before

having

returning it

to

that A-K's safety manager

foremen knew or should

marine surveyor

the owner.

or other carpenter

have known that the open

potentially hazardous condition.

principles, Morehead asks us

rather than

employer

hatch was a

Resting on purported agency

to assign these employees' acts

to A-K in its vessel capacity, on the theory that

vessel

He

capacity had

A-K in its

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.

in

the case of

harbor workers, as

As typical

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

maintains that

the

open

hatch

their

particular construction

its "active control" over

into

which

Morehead

-2929

trade.

A-K

or knowledge about

fell

is

therefore

attributable to it as employer, not as vessel since the hatch

was opened (presumably by Breault) and the line thrown in the

course of harbor worker duties

which both men were regularly

hired to perform.

We agree with A-K that, for present purposes, the barges

tended by

control

its carpenters/scowmen were operated

and knowledge qua employer.

____________

within A-K's

The barges, which were

Breault and

Morehead's workplace,

can be analogized

to the

areas

vessel taken

longshore workers

in the

of a

Scindia
_______

setting.

stevedore

over by

Under

the principles

of that

case, the

or, in a dual capacity case, the employer in a

stevedore capacity

is ordinarily

the workplace and for

or the

employer in

except

in the

liable for the safety of

any injuries that occur.

its vessel

capacity, is

unusual circumstance

The vessel,

not implicated

that the

vessel itself

continues to exercise active control over the work area.

We

recognize that

which, however, we reject.

competing analysis

is

possible,

A court could make an attempt

to

ascribe Breault's and Morehead's specific activities relative

to Morehead's

vessel,

injury

depending on

either to

how the

their

employer or

court chose

to

the

to classify

the

objectives that those activities were thought to serve.

One

could

the

vessel

inquire whether

(i.e., to air it
____

the owner)

rather than

the hatch

was opened

in preparation for

in furtherance of

-3030

to "help"

returning it to

some construction

activity.

liable

If

so, the

defendant qua

for any negligence.

vessel might

Such an analysis, however, would

involve courts in slippery semantical debate.

while

of a

be held

Is an accident

tying up a barge at a construction site in furtherance

"construction" objective or

both objectives

how does one

are being

square the

a "vessel" objective?

served, which predominates?

fact that the

hired by the employer for scowmen not

employees here

If

And

were

just carpenter duties?

Harbor workers are, after all, by definition, employees whose

paid duties include maritime components.

As

noted,

the statute

compensation liability

liability . . . ."

history and

33

makes

the employer's

"exclusive and in place

U.S.C.

905(a).

the Court's precedents since

The

worker's

of all other

legislative

1972 make worker's

compensation the primary remedy for an injured employee.

exception

in

section

905(b)

for

third-party

narrowed in

1984,16 explicitly requires a

fault.

would be

might

We

even

negligence,

finding of vessel
______

disregarding Congressional

be returning

in the

The

direction of

intent and

the Sieracki
________

doctrine which did not require such a showing, see supra n.6,
___ _____

if we

were to attribute

harbor worker

some of the

regular duties that

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
_____________________________
Congressional intent

to limit

invocation [sic] of

capacity doctrine under the Act.").

indicate a
the dual

-3131

of

their

residue

speculative seaman-like

to the employer.

different

from that

and

only the

This approach would greatly expand

a defendant's liability qua vessel

too

character,

in

in a work arrangement not

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

regular course

or

worksite

on

safety manager)

the

present

sue

to A-K

in a

facts, would

vessel capacity.

leave

an approach,

this

of

the

worker's

combining mandated

with a widespread license

because

the

the carpenter foremen

as a strange hybrid

compensation coverage

to

employees in

nor case law supports such

compensation statute

employees

by A-K

of employment (such as

Neither the statute

which,

acquired

for covered

negligence

of

their

supervisors and fellow employees within the workplace.

One of

Amendments

the

was to

greater degree of

essential purposes

provide

of

the 1972

employees and

certainty as

to the

and

1984

employers with

coverage in

effect.

The legislative history of the 1984 Amendments documents this

concern:

[T]he situation in which a

covered at one time,
another,
work

the time
since

and not covered

depending on the

which the

worker is

of the injury

such a result

worker may be
at

nature of the
performing at

must be

avoided

would be enormously

destabilizing, and would thus

-3232

defeat one

of

the

essential

purposes

of

these

amendments.

1984

U.S.C.C.A.N.

at

2736-2737.

interpretation, hinging

and

purpose

of

employees at

would

and Breault's

linehandling,

duties

remedies

is

duties

being

disputes over

alternate

single,

on the nature

performed

by

coverage.

employment contemplated

between

overall

most appropriate

Cf. Gay,
___ ___

for

covered

increase uncertainty and

the scope of

frequently

available.

"functional"

the type of liability

any given time, would

the frequency of

Morehead's

the

that they

construction

classification

determining

915 F.2d at

As

of

and

their

the types

of

1011 ("[T]o deny

Gay [the employee] a

grant him one in

the

Act

cause of action

the afternoon is to

as random

in the morning but

make his rights

and indiscriminate

as the

to

under

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

maritime worker to a vessel in navigation, courts

employ 'a "snapshot" test

the situation as it exists

should not

for seaman status, inspecting only

at the instant of

injury'. . . .

[A] worker may not oscillate back and forth between Jones Act

coverage

which

and other

the worker

remedies

was

engaged

depending on

the activity

while injured.")

in

(citations

omitted).

-3333

Cases will, of course, arise from time to time involving

an

the

injury that was

negligently caused by

someone acting as

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

assigned

than as

Morehead's fellow

harbor worker duties rather

its distinct shipowner's capacity.

hired

to perform

than as A-K's agent in

Morehead and Breault were

both construction

carpenter-supervisor

employee pursuing

and scowmen duties.

instructed Breault

to open

the hatch.

A-K's project safety manager

generally oversaw the safety of

work

has

operations.

circumstances, A-K

vessel

Morehead

not

shown why,

in its distinct capacity as

in

these

owner of the

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

employer, and

a condition

temporarily

affirm the district court's

created by

A-K

as

judgment in favor

of A-K.

So ordered.
__________

____________________

17.
(5th

Cf. Pichoff v. Bisso Towboat Co., 748 F.2d 300, 302-03

___ _______
_________________
Cir. 1984)

general manager
tank

(ruling

in a

who ordered a

dual

capacity case

hurried inspection of

that

a fuel

leak and failed to provide adequate lighting was acting

as an agent of the vessel).

-3434

- Concurring Opinion Follows - Concurring Opinion Follows -

-3535

SELYA,
SELYA,

Circuit Judge
Circuit Judge
______________

Supreme Court precedent, this

A large part

(concurring).
(concurring).

Under

is a close and a

of the problem is that the

existing

vexing case.

Court's language in

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-32
____________________________
_______

&

n.6

(1983)

dictum

whether deemed

forces judges who

capacity"

LHWCA

pretending

that

employer)

is

cases

holding or

are called upon

to

engage

single

entity

really

two

distinct

(employer and vessel owner

in

to decide "dual

legal

fiction,

injured

person's

and separable

entities

(the

pro hac vice).

___ ___ ____

self-induced schizophrenia muddles

a considered

In

my view, this

the law and

disrupts the

delicate balance that Congress

labored to strike between the

entitlement of

others similarly

workers'

employers

negligence

stevedores and

compensation

who

provide

suits.

benefits,

that

In short,

and

coverage

the

to

situated to

entitlement

immunity

of

from

I believe that Congress should

have

been taken literally

responsibility

under

the

to

furnish

LHWCA is

liability of such

when it wrote

workers'

"exclusive and

employer to

that an employer's

compensation

in

place of

the employee."

benefits

all other

33 U.S.C.

905(a).

This reasoning leads me

either that

phrasing

Congress

LHWCA

inadvertently muddied

905(b),

Laughlin was wrongly

________

to conclude, with all respect,

or, alternatively,

decided.

Still,

-3636

the

waters

in

that Jones &

________

I recognize that

the

Supreme Court's opinion is binding on this court, and that we

therefore must undertake what Judge Campbell charitably terms

"an elusive

quest."

that necessity, I

cogent opinion.

Supreme Court

Ante
____

can in good

11.

and Congress to

Once

reconciled to

conscience join this

write separately,

that Jones & Laughlin

_________________

workers

at note

however, to

reflect upon

particularly

court's

urge the

the mind

as applied to

games

harbor

compels us to play, and, hopefully, to revisit the

question

liable

of

at

whether

all

in

"dual

capacity"

negligence

actions

employers should

brought

employees.

Dissenting opinion follows

Dissenting opinion follows

by

be

their

-3737

CYR,
CYR,

Circuit Judge
Circuit Judge
______________

(dissenting).
(dissenting).

As

am

in

fundamental disagreement with the treatment given

of care incumbent

en

upon dual capacity LHWCA

the duties

employers by the

banc court under the Supreme Court decision in Scindia, I

_______

respectfully dissent.

Two

supra
_____

years after

Section V (en

its seminal

decision in

banc opinion),

Scindia, see
_______ ___

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

notwithstanding

the

employer

seemingly

under

section

unqualified

"exclusivity"

provision in section 905(a) that the sole liability to

maritime

employers may

be subjected

is LHWCA

905(b),

which

compensation

benefits.

See Jones & Laughlin, 462 U.S. at 530-31; see also

___ ________________
___ ____

supra note
_____

(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

contractor."

by the vessel or by

Jones & Laughlin, 462 U.S.

_________________

an independent

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

longshoreman

or

ship

deal

with a

builder

or

case where

repairman

is

-3737

Without further elaboration, the Jones & Laughlin Court

_________________

appended a conclusory footnote ("footnote 6") to its holding:

"Of

course,

acting

[905(b)] does

make clear that

a vessel owner

as its own stevedore is liable only for negligence in

its `owner'

capacity."

capacity, not for negligence

Id.

at 531 n.6.

The

in its `stevedore'

en banc court

interprets

___

footnote

6 as

the Supreme

Court's endorsement

fiction central to the present controversy:

employer

engaged

operates

in two

in

maritime

wholly

a legal

a dual capacity

construction

presumptively

discrete capacities

owner and construction company).

of

(i.e.,

vessel

I respectfully disagree.

____________________

employed

directly by

notwithstanding the

the vessel.
fact

that the

employer, the Supreme Court,

373

U.S. 410

In

(1963), and

such case,

vessel is

the

in Reed v. S.S. Yaka,

____
_________
Jackson v.
_______

Lykes Bros.
___________

Steamship Co., 386 U.S. [731] (1967), held that the

_____________
unseaworthiness remedy is
employee.
of

The

an injured

available to the injured

Committee believes that the

longshoreman

repairman

should

employed

directly

not
by

depend
the

or

ship
on

builder

whether

vessel

rights

or

he
by

or
is
an

independent
provides

contractor.

in

the case

employed directly

Accordingly,
of

by the

shoring

vessel there will

cable

persons engaged in

services.

be no

performing longare appli-

to shipbuilding or repair employees employed

the same
___ ____

mining
______

The Committee's intent is

___ ___________ ______ __

principles should
__________ ______

liability of
_________ __

own longshoremen or
___ ____________ __
apply
_____

is

was caused by the

Similar provisions

directly by the vessel.

that
____

bill

longshoreman who

action for damages if the injury

negligence of

the

apply in
_____ __

the vessel which

___ ______ _____

deter______

employs its
_______ ___

ship builders or repairmen

____ ________ __ _________

when an independent
____ __ ___________

as
__

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).

-3838

First, footnote

Water Co., Inc. v.

________________

6 is

unelucidated dictum.

See Dedham
___ ______

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.

____ _____________________________________

Clark, 986 F.2d 600,

_____

603 (1st Cir. 1993), the

of statutory interpretation confronting

v.

only question

the Court in Jones &

_______

Laughlin
________

was whether the LHWCA

imposed any duty

___ ____

all upon dual capacity vessel owners,

___

in

since the parties were

agreement that the defendant vessel owner would be liable

for its

negligent conduct

prescribed by

Laughlin not
________

statute.2

absent any

brief the complex legal

or elsewhere

legal

issue

in the

itself,

supportive Supreme

se immunity
__

issue presently before

either in footnote

Jones & Laughlin opinion

_________________

the

LHWCA's

Court precedent.

512 U.S. 477, 114 S.Ct. 2364,

own dictum in prior

such per
___

Not only did the parties in Jones &

_______

us, but there is no exegetic discussion

of care at
__ ____ __

of the

legislative

history, or

See Heck
___ ____

v. Humphrey,
________

2370 (1994) (rejecting Court's

opinion which "had no cause

to address,

and did

not carefully consider, the

damages question before

us today").

____________________

2.

Longshoreman Pfeifer

board
failed

had

a barge owned by his

slipped and

fallen

while

on

employer, which had "negligently

to remove [ice] from the gunnels."

462 U.S. at 526.

-3939

Jones & Laughlin,

________________

More importantly, even if footnote 6

ered

binding

essential

the

precedent,

question:

courts

to

its

curt

were to be consid-

conclusion

begs

the

in defining the duties of care, how are

determine

in

what

negligent conduct

is to

be considered

capacity employer

qua vessel owner?

___

endorsing a presumptive legal

conditions

particular

traceable to

Far

a dual

from creating

or

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

bifurcation of its statutory duties of

an efficient

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

that

Circuit has

accepted footnote 6

the Supreme Court meant

as evidence

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:

_________

legislative history contemplates that all

since

maritime employees

receive the "same" remedy, "[w]e can find no reason to impose

on

a shipowner

because the

tions")).

a greater duty

shipowner

of care

conducts its

toward longshoremen

own stevedoring

opera-

That is to say, a contrary construction of section

905(b) would deprive dual capacity employers of their antici-

-4040

pated return for assuming

the burden of contributing

to the

section 904 workers' compensation scheme.

The Second Circuit,

that

attempting

traditional

to fit

Scindia
_______

on the other hand,

dual

mold

capacity

causes

has pointed out

employers into

serious

anomalies

the

and

artificialities not

present in single capacity

cases.

e.g.,
____

F.2d at

charge which

Fanetti, 678
_______

relieves a

428 ("[A]

shipowner of liability for

[jury]

See,
___

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.'")

v. Hellenic Lines, Ltd., 536

_____________________

F.2d 505,

(quoting Napoli
______

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
________ __________ ____
own workers' workplace, to
spills, etc.
"independent
responsibility

to inspect

its

remove grease

In such a case there is no

contractor"
upon

whom

with

primary

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

dissenting,

preceded

Canizzo, 579
_______

in part))

F.2d

at

689-90 (Friendly,

(emphasis added).

Jones & Laughlin,

_________________

whereas the

-4141

Although

J.,

Fanetti
_______

Castorina decision
_________

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

purpose:

to offer

from unpredictable

1972 LHWCA amendments' principal

all maritime employers maximum protection

tort liability in return

monetary contributions

for their fixed

to the LHWCA compensation

fund.

See
___

also DiGiovanni v. Traylor Brothers, Inc., 855 F.

____ __________
_______________________

42 (D.R.I.

1994) (same,

provision in

R.I.

28-29-20 (1994)).

views the

achieving

to "exclusivity"

Rhode Island Workers' Compensation Statute, see

___

Gen. Laws

court

citing by analogy

Supp. 37,

the

Accordingly, the en banc

bifurcation fiction

congressional goal

as the

"that

the

only means

of

rights of

an

____________________

3.

The en banc court

notes that the Fanetti panel

_______

have announced so broad a

upon dual capacity
opinion).

statement of the duties

employers.

See supra note

___ _____

need not
incumbent

14 (en

banc

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

second, to provide

be

thought

to

undermine

guidance on remand.

See,
___

its

rationale;

e.g., Scindia,
____ _______

451 U.S. at 156 (setting forth complete explication of duties

of

care

facts).

for
No

remand,

some arguably

Supreme Court

or

Second Circuit

explicitly or implicitly overrules

F.3d at 387 (citing
that

Fanetti.
_______

not specifically

like

to

record

case

either

Cf. Guilles, 12
___ _______

Levene only for the limited

______

non-longshore workers

1984 LHWCA amendments

inapposite

harbor workers

proposition

barred
may

suit against their dual capacity employers under the

Laughlin
________

reasoning);

cf. also
___ ____

opinion).

-4242

supra
_____

Section

by the
bring
Jones &
_______

VI (en

banc

injured

was

longshoreman . . .

employed directly

contractor."

vessel"

by the

H.R. Rep. No.

principles should

should not depend

vessel

or by

on whether he

an independent

92-1441 (noting that

apply in determining the

the "same

liability of the

in both single capacity and dual capacity cases).

find its reasoning unpersuasive.

First, though courts must attempt to discern legislative

intent based on the

Corp.
_____

statute as a whole, see

___

Thinking Machs.
_______________

v. Mellon Fin. Servs. Corp., 67 F.3d

_________________________

1021, 1024 (1st

Cir. 1995), nothing

history

argument

in the LHWCA

provides conclusive

adopted

today by

or its sparse

support for

the en

banc

legislative

the "evisceration"

court.

As single

capacity employers would continue to retain all their section

905(a)

protections,

employers' LHWCA

the

the

Fanetti approach
_______

immunity but

limit

it certainly does

LHWCA exclusivity provision

Perez v. INS, 3
_____
___

may

some

not render

superfluous.

See Mosquera___ _________

F.3d 553, 556 (1st Cir. 1993)

(no statutory

provision should be interpreted as meaningless).

Second, Jones & Laughlin

_________________

itself demonstrates that

supposedly unlimited, pro-employer

section

905(a)

workers'

is far

compensation

more

contexts would

negligence

action

property

on

which

against

the

flexible

statutes

comparable

exclusivity provision

in

not permit

the

than the

in

land-based

most states,

which

in

a worker

to bring

employer as

worker's

the

injury

owner

occurred.

of

the

See
___

-4343

generally
_________

72.82,

2A

Arthur Larson,

at 14-234 (1983).4

Workmen's Compensation Law

____________________________

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

ately after

the

Report language appears

a discussion of Congress'

immedi-

intention to abrogate

Court's previous decisions in Reed v. Yaka, 373 U.S. 410

____
____

(1963),

and Jackson v.
_______

731 (1967), see supra

___ _____

employers

were as

Lykes Bros. Steamship Co., 386 U.S.

__________________________

note 1, which held that

vulnerable

under the pre-1972 LHWCA

to

dual capacity

"unseaworthiness"

claims

as were non-employer vessel owners.

Congress meant to eliminate the wasteful litigation burdening

the

courts

under

"triangulation" in

longshore

worker's

worthiness" against

claim

for

the

pre-1972

LHWCA;

litigation caused by the

strict

liability

indemnification

from

the

confluence of a

claim

the vessel owner and

viz.,

for

"unsea-

the vessel owner's

negligent

stevedore-

employer.

Thus, in all likelihood

"same principles" was

the House Report's reference to

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

example, a

a non-landowner
___ _________

injured by a product

For

See,
___

not

product liability claim for breach

owed the consuming public

______

ably safe product.

worker

manufactured by the employer would

be barred from bringing a

of the duty

capacity.

e.g., Schump v.
____ ______

to make a reasonFirestone Tire &

_________________

Rubber Co., 541 N.E.2d 1040, 1042-43 (Ohio 1989).

__________

-4444

forth, by virtue of the 1972 amendments, both single capacity

and dual capacity cases were to be subject to the same negli-

gence liability

of

principles, not to

the heightened standards

care governing "unseaworthiness" claims

a differential

that would otherwise have afforded employees in dual capacity

cases

a decided advantage in litigation.

_________

North Pennsylvania R. Co., 101

___________________________

U.S. 557,

See, e.g., Shaw v.

___ ____ ____

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

employers, in

904

to

from

insulation

out

that

return for assuming much

workers' compensation

benefit

point

the

1972

from the

which they had

capacity

more limited section

liability, obtained

amendments;

much more

dual

that

onerous strict

an important

is,

complete

liability to

been exposed previously in actions for breach

of the warranty of seaworthiness.

Fourth,

duties

of

employers.

Congress

care

for

may

well have

single

capacity

Unlike their single capacity

capacity vessel owners presumably

a result of

envisioned

their decision to

and

dual

different

capacity

counterparts, dual

derive economic benefit as

act in a

dual capacity.

In

fact,

this economic benefit

itself may

well counterbalance

any "heightened" duty of care attending their decision.

shipowner is, of course, at liberty to

refrain from hiring an independent steve-

-4545

doring contractor.
to save money.

Presumably it does so

However, that saving

is

accomplished at the cost of not having an

independent expert on
cases

in

this

board.

field

As

myriad

demonstrate,

the

presence of the expert independent stevedoring contractor furnishes the shipowner

with significant protection, in

the form

of insulation from liability for

its own

acts which would

otherwise attach.

But

the shipowner cannot save the premium and

___ _________ ______ ____ ___ _______ ___
still claim the protection.
_____ _____ ___ __________

Fanetti, 678 F.2d at 428 (emphasis added).

_______

Indeed,

permitting

compartmentalize

its

the

actual

dual

capacity

"knowledge"

employer

between

its

to

two

artificial personae in these circumstances would undercut the

primary

say,

LHWCA policy goal identified in Scindia.

_______

there would

employers

to hire

be

no economic

incentive for

independent stevedoring

That is to

shipowner-

companies, which

generally possess greater expertise in conducting longshoring

activities with

artificial

working

rule

maximum levels

inevitably

conditions

of worker safety.

would

encountered

increase

by

Such

the

longshore

an

hazardous

and

harbor

workers, and thereby undermine the spirit of the LHWCA.

Fifth, the en banc court's bifurcation

any factfinding

inquiry into the

actual mode of operations.

single and

fiction obviates

"dual capacity" employer's

Under either Fanetti or

_______

Levene,
______

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

-4646

duties of

care

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

which the

owner enjoys no presumptive

relation to

vessel

right of control absent specific

contractual arrangements to the contrary.

On

knowledge

the

other hand,

as a

general

as well as the foreseeability

rule the

notice or

attributable to

dual capacity employer

vessel owner

will be

greater simply

because a

which hires its own longshore or harbor workers

does not in fact "turn over" its vessel to a separate entity.

Rather, the dual

least to

capacity employer remains in control

some extent (both

remains

in

total

control

in time and space)

of

the

entire

and often

vessel

appurtenances throughout the relevant time period.

fuller

range

accompanying

of

constant

compelling reason

the

dual

knowledge

and

and

total

consistent

normally

represents

for broader accountability on

capacity employer,

and its

Thus, the

foreseeability

control

872, 882 n.22

the part of

with general

principles, see, e.g., Illinois Constructors Corp. v.

___ ____ ____________________________

Transp., Inc., 715 F. Supp.

______________

at

tort

Logan
_____

(N.D. Ill. 1989)

(agent's

knowledge

principal to

is

imputable

direct liability

to

principal,

in tort); People
______

Medical Ctrs. of Michigan, Ltd., 324 N.W.2d

________________________________

Ct. App.

1981) (same), cert.

_____

v. American
________

782, 783 (Mich.

denied, 464 U.S.

______

-4747

exposing

1009 (1983);

Allen v. Prudential Property & Cas. Ins. Co., 839

_____
____________________________________

P.2d 798,

806 (Utah 1992) (same).

Even a single capacity

ongoing duty

to intervene as necessary

conditions in

control,

any part

of the

as well as when

developing hazard posed by

an

open deck hatch or

the independent

to correct hazardous

vessel remaining

it acquires actual

within its

knowledge of a

the vessel's appurtenances (e.g.,

____

a leaking powerpack),

stevedore's failure to remedy

plainly improvident.

Melanson v.
________

employer owner must shoulder the

See Keller,
___ ______

38 F.3d at

Caribou Reefers, Ltd., 667 F.2d

______________________

and knows that

the hazard is

32; cf.
___

also
____

213, 214

(1st

Cir.

1981) (noting

that

standard of care generally

ing

in

cargo).

vessel's

By the

whether a dual

known hazard

vessel

can

through its

improvident"

pertains only to hazards develop-

gear, rather
____

than

nonappurtenances

opposite token, however, what can

capacity employer knows,

that its decision qua

___

Scindia's "obviously
_______

is or

exercise

owner and

like

it matter

as it surely

does,

independent stevedore not to eliminate

is not

improvident?

control, and

acquire

crew, 33 U.S.C.

After

all, a

knowledge, only
____

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,

severely

the following

language

undercuts the statutory

from

the House

Report

interpretation proposed by

the en banc court:

-4848

The

apology

for the

compelling were

when the

there

dual

capacity fiction

some reality-based

might

be more

indication as

markedly different responsibilities

to

incumbent upon

dual capacity

not the

employers become engaged.

case, of

course.

"turn over" in a

clearly

Even the

But

this is simply

determinative one-time

single capacity case, which brings

distinguishable

realignment of

about a

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

between

areas

an

of

various

employer's

vessels,

frequently alternated

vessel-operating employees

____________________

[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

and

its

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.
___ __________

recover, he must establish that:

vessel
deck,

put

a foreign

or knew
__ ____

that
____

substance
it was
__ ___

To

(1) the
on the

there,
_____

and

willfully or negligently failed to remove

it; or (2) the foreign substance had been
on
that

the deck

for such

it should have

a period

of time

been discovered and

removed by the vessel in the

exercise of

reasonable care under the circumstances.

H.R. Rep. No. 92-1441 (emphasis added).

-4949

construction employees.6

fiction

Clearly, then,

presumes circumstantial settings

the dual

capacity

which overlook the

actual facts in many if not most cases.

At

best, therefore, the Castorina fiction devolves into

_________

a metaphysical exercise, at worst

capacity employers to

their

exclusive

perpetuate hazardous conditions within

control.

See
___

Furthermore, it runs directly

of congressional

into an inducement to dual

intent

Fanetti, 678
_______

F.2d

at 428.

counter to the clear statement

in the

LHWCA legislative

history;

viz., that the "same principles [i.e.,

____ __________

care]

should

apply

in

the Scindia duties of

_______

determining the

liability

of

the

vessel" in both single capacity and dual capacity cases.

See
___

H.R. Rep. No. 92-1441.

Sixth, the mere

tort

liability

fact that the 92d

exposure

of

LHWCA

Congress reduced the

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

constructing the coffer dams.

that

these

alternated
ascertained

discrete
with

such

with any

an instrumentality for

Sometimes, in fact, it appears

operating
frequency

modes
that

confidence, even

either
it
on the

merged

could
date

not

or
be

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.

Co., Inc., 867

_________

F.2d 892

present case does

the

control

contractor.
bound

of

(5th Cir. 1989)

not involve a vessel

a

vessel

Rather,

to conduct

Cf. Masinter
___ ________

the

to a

[the vessel

v. Tenneco Oil
___________

(noting that

"the

owner 'turning over'

stevedore

or

owner] was

drilling operations

independent
contractually

and remained

in

control of the vessel to effectuate this obligation.").

-5050

respects does not permit the extrapolation indulged by the en

banc

court;

employers

regardless

levels

viz., Congress

the maximum
_______

of

workplace.

In so

recognition

to the

have

protection from

any actual

of knowledge

must

differences

about,

en

in their

respective

to control,

banc court

one presumptive

the

the

gives little

principle of

applicable here:

accord

negligence liability

or capacities

doing, the

interpretation plainly

intended to

statutory

LHWCA "must be

liberally construed in conformance with its purpose, and in a

way which avoids harsh

U.S. at 415

and incongruous results."

(emphasis added).

See Voris v.
___ _____

Reed, 373
____

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

presumptive

like A-K

interpretation,

demonstrate

unless dual

some legislative

Consistent with this

capacity employers

purpose

behind

the

____________________

7.

Generally,

injured

this

interpretive

maritime workers

within

rule

operates

the workers'

scheme in circumstances where

904 is ambiguous.

maritime workers

of other common

under

905(a),

are deprived
a liberal

synonymous with one

workers.

to

bring

compensation
Insofar as
law remedies

interpretation is not

invariably

that is "favorable" in fact

to maritime

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

amendments questions Reed, but

____
availability
capacity

of

Reed's pro-employee
____

the 1972

only regarding the

the "unseaworthiness"

employers, see
___

of

supra note
_____

remedy

LHWCA

continued

against dual

1, leaving

undisturbed

interpretive presumption in

the face of

other unresolvable statutory ambiguities.

-5151

LHWCA

that

Fanetti, the
_______

is either

benefit

served by

of

the

plaintiff-employee.8

III
III

Castorina or
_________

doubt

would

disserved by

belong

to

the

Absent

controlling precedent or

conclusive evidence of

congressional intent, we must determine the particular duties

of

care to

Scindia,
_______

specify

be borne

451 U.S. at

the

constitute

acts

by

the dual

165-66, 167

or omissions

negligence . . . .

capacity employer.

("Section 905(b)

of

the

vessel

See
___

did not

that would

Much was left to be resolved

____________________

8.

share

the

common-sense assessment

advanced

in

the

concurring opinion, see supra, that the dual capacity fiction

___ _____
is unnecessarily cumbersome,
intended,
that

but cannot agree that

or the Jones & Laughlin

_________________

all tort

barred outright.

suits

against dual

Court should

Congress
have held,

capacity employers

were

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
the

permissible

unmistakably
negligence

by the Court.
scope

of

such

implies that there

suits by

employers.

See
___

By expressly restricting
suits,

this

is no such

employees

outright bar of

against their

Jones & Laughlin,

__________________

462

language

dual capacity

U.S.

at

530-31.

Second, the concurring opinion suggests that the 92d Congress

unintentionally
surmises that
provision as
it

created

the present

Congress nonetheless intended

Jones & Laughlin

_________________

relating

only

to

decision, and

particular

386.

Thus,

Congress had

sional

classes

that

subject to suit under

one year after

of

dual

bars

capacity

See, e.g., Guilles, 12 F.3d

___ ____ _______
the

to overrule it only in part.

intendment

Be that as

enacted outright

opportunity in

overturn the Jones & Laughlin decision in

_________________
chose

1972, then

the exclusivity

LHWCA in 1984,

employers (e.g., shipbuilders).

at

in

a total bar to dual capacity suits.

may, Congress amended the

the

muddle

some dual

-5252

to

its entirety, yet

Consequently, a congrescapacity

section 905 seems to me

beyond serious question.

1984

employers

are

to be settled

through the

`application of accepted principles

and the ordinary process of litigation.'")

No. 92-1441).

Since legal fictions

realities in order to

in

my

view

of tort law

(quoting H.R.Rep.

often overlook relevant

promote some greater systemic benefit,

finding

of

dual

capacity

should

be

the

exception, not the presumptive rule.9

Neither the

foreseen

the

Congress nor

recent,

the Scindia Court

_______

fast-paced

evolution

could have

in

maritime

construction

practices

controversy.

Supreme

Ultimately,

Court

was

Until then,

longshoreman . . .

employed directly

contractor."

has exacerbated

therefore,

must provide

present conundrum.

injured

which

instant

the Congress

definitive

or

the

response to

the

however, "the rights

should not depend

by the

the

vessel or

by an

of an

on whether he

independent

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
___ _________

92 (1934)

v. Stockholms Enskilda Bank,

________________________

(("[L]egal fictions

the administration of the

demands of

convenience

293 U.S. 84,

have an appropriate

law when they are required

and justice.");

place in
by the

Pettibone Corp.
_______________

v.

Easley, 935
______

F.2d

fictions have
Inc.,
____

932

maritime

120,

123 (7th

Cir.

their limits."); Cruz

____

F.2d
law

218,
creates

227-28 (3d
legal

Cir.

fictions

(7th Cir. 1984) ("[F]or

("Even

legal

v. Chesapeake Shipping,
____________________

operational reasons"); United States v.

______________
1179, 1187

1991)

1991)
"for

(noting that
[]

practical

Markgraf, 736
________

more than 200

F.2d

years we

have been told that the proper office of legal fictions is to

prevent,

rather

than

William Blackstone,

to create,

injustices.")

(citing

Commentaries on the Laws of England 43

_____________________________________

(1768)), cert. dismissed, 469 U.S. 1199 (1985).

_____ _________

-5353

workplace-safety

responsibilities

employers under the

de
__

Such a

of
__

its vessel-owner
___ ____________

tacit work arrangements which

for example,

which

of

ultimately

their

maritime

informal or
________ __

and construction
___ ____________

presumption would allow, even encourage,

dual capacity employer operations to

risk;

upon

LHWCA, based merely on some

_____ ______ __ ____

facto bifurcation
_____ ___________

operations.
__________

incumbent

where

dual

place employees at unnecessary

few workers,

capacity

responsible,

lapse into the types of

through

if any,

employer's

its
___

own

understand

alter

egos

is

employees,

for

monitoring, reporting and/or remedying developing hazards.

At most, therefore,

an

affirmative

defense,

bifurcation should be

as

to

which

the

available as

putative

dual

capacity employer

that the

work area

bears the burden of proof.

vessel owner may

to a single
______

surrender and entrust

a discrete

capacity employer because

________

the latter

presumptively possesses not only the hands-on

monitor vessel

expertise in

F.3d at

workplace conditions, but

supervising workplace

29-30.

On the

Scindia noted
_______

other hand,

opportunity to

also the

safety.

See
___

required

Keller, 38
______

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

construction division

such responsibilities

ab initio, or
__ ______

delegated them

from

its

without

the clarity and authority reasonably required to enable their

-5454

reliable discharge.

may arise

if the

Cf.
___

id. at 32 ("a
___

vessel owner was

statute or custom, to

post-'turnover' duty

obligated, by

contract,

monitor stevedoring operations for the

purpose of detecting and

remedying unsafe conditions").

example, the slipshod arrangements

cases now before the en banc

do

nothing to

division"

reliably

to

in place in the companion

court were of a type that could

encourage, let

necessary to enable a dual

For

alone develop,

the expertise

capacity employer's "construction

discharge its

delegated

workplace-

safety responsibilities along the lines touted in Scindia.

_______

Consequently, in my view

the

actual

employer's

bifurcation

affirmative

the first step in establishing

needed to

defense

sustain

would

be

a dual-capacity

to

demonstrate,

either through an express delegation of responsibility, or by

way of an implied delegation based, for example,

that

the

dual

capacity

employer's

on evidence

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

division," the Scindia

_______

delegated to

its "construction

rationale would contemplate

-5555

that the

injury sustained by the plaintiff-employee have occurred in a

workplace area

not under

capacity employer's

during

"vessel division" (or

of the

its vessel

dual

crew)

any appreciable pre-injury period after the hazardous

condition

(noting

the "active control"

first developed.

See
___

Scindia, 451
_______

that vessel may be liable

U.S. at

167

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[]

rule

to overrule or

that the longshoreman

his damages from the

contributing

whose limited

blame")

modify the

may recover the

traditional

total amount of

vessel if the latter's negligence

cause of

his

injury, even

liability is

(quoting

fixed by

Edmonds
_______

if the

stevedore,

statute, is

v.

is a

partly to

Compagnie
Generale
_____________________

Transatlantique, 443 U.S. 256, 264 (1979)).

_______________

The rationale

able:

for such a

an employer may not

circumvent

LHWCA

compartmentalizing

use the dual

tort

its

requirement seems

liability

actual
______

("[R]equiring trial judges to

unimpeach-

capacity fiction to

by

knowledge.
_________

artificially

Id.
___

at

430

give juries instructions about

the shipowner's right to rely upon an expert contractor

who,

in

fact, was

not

there .

is schizophrenic

and

predictable effect upon the jury one of bafflement.").

the

Since

dual capacity employers that utilize vessels to perform their

-5656

maritime construction

time

activities may never engage

turnover of any discrete

area of the

in a one-

vessel (as would

the

single capacity

stevedoring

owner in

the more

traditional

context), a rational factfinder reasonably could

conclude that

developed

vessel

the area within which

had been

jointly or

the hazardous condition

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."

a remand in this

finding

that

exclusively and

Thus, were there to be

case, the record might enable

agents

of

A-K's

a reasonable

"construction

continuously controlled

the barge

division"

from the

time the hazardous condition first developed until a few days

later when Morehead fell into the open hatch.

Once

dual

aforementioned

liability

capacity

components

could

not

be

plaintiff-employee that

knowledge of

within the

the

employer

in

its

imposed

satisfies

burden

absent

of

the

proof,

showings

two

tort

by

the

the employer had acquired (i) actual

developing hazard

in

an area

employer's "active control" and

no

longer

(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

-5757

developing hazards,

even

though

division,

areas

it is

in the

under

allowed

to rely

first instance,

the

"active

upon

its construction

to remedy

control"

of

hazards within

its

construction

division.

Actual knowledge of a

be

imputed to

agents

or

developing

developing hazard normally

corporate dual

employees

acquired

hazard.

Under

capacity

actual

the

would

employer if

knowledge

"obviously

of

its

the

improvident"

standard,

liability

capacity

employer

obviousness of the

also

could

based on

be

imputed

extrinsic

to

evidence

the

dual

as to

the

developing hazard and the length

of time

it remained unremedied.

Although the "obviously

from

improvident" standard

imported

Scindia entails a lesser duty of care than the "reason_______

able care" required for actionable negligence, it nonetheless

serves

to

perfunctory

diminish

designation

workers may allow a

from

grave

of

risk

employees

that

as

virtually

Thus, on

any

"vessel-owner"

dual capacity employer to shield

all tort liability.

present

close

the

itself

remand the record in the

case might enable a finding that the decision not to

the open

hatch

for a

few

days was

not

"obviously

improvident"

were

to be imputed

178-79 (noting

was

even assuming

to A-K.

responsibility for

the decision

Cf. Scindia, 451

___ _______

U.S. at 175,

genuine factual dispute

liable because it knew

whether vessel owner

that stevedore's decision not to

-5858

fix

defective

winch

for

two

days

had

been

obviously

improvident, and remanding for further factual findings).

both cases

court

before the en
__

decisions

were

banc court, however,

____

made

in reliance

standard for defining the duties

capacity employers.

whether

Since the

defined, I

were

dependent

the district

the

Castorina
_________

of care incumbent upon dual

ultimate findings

breaches of the applicable

necessarily

on

In

upon

as

to

duty of care occurred

how

those

duties

were

would remand the A-K case for further proceedings

and/or specific factual findings on the defendant

affirmative defense of bifurcation.

employer's

-5959