Morehead v. Atkinson-Kiewit
Case Date: 02/06/1996
Court: United States Court of Appeals
Docket No: 94-1581
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT ____________________ No. 94-1581 MARK MOREHEAD, Plaintiff, Appellant, v. ATKINSON-KIEWIT, J/V, ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Bailey Aldrich,* Senior Circuit Judge] ____________________ ____________________ Before Torruella, Chief Judge, ___________ Campbell, Senior Circuit Judge, ____________________ Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges. ______________ ____________________ Thomas M. Bond, David B. Kaplan and The Kaplan/Bond Group on _______________ ________________ ______________________ brief for appellant. Thomas E. Clinton, Robert E. Collins and Clinton & Muzyka, P.C. __________________ _________________ _______________________ on brief for appellees. Myles W. McDonough and Sloane and Walsh on brief for J.M Cashman, __________________ ________________ Inc. and Cashman, KPA, A Joint Venture, amicus curiae. _____________ ____________________ October 10, 1996 ____________________ OPINION EN BANC ____________________ ____________________ *Of the First Circuit, sitting by designation. CAMPBELL, Senior Circuit Judge. This appeal comes ______________________ before the en banc court following our vacating of an unpublished panel decision in this case issued on February 6, 1996, affirming the decision of the district court. On the day of the panel opinion, another panel of this court handed down a decision construing the federal statute underlying both appeals in a materially different way. Rocco P. _________ DiGiovanni, Jr. v. Traylor Bros, Inc., No. 94-1775. We ________________ ____________________ vacated both opinions and granted rehearing en banc so as to provide a consistent rule in this circuit pending, at least, further instruction from the Supreme Court or Congress. Plaintiff Mark Morehead, a harbor worker injured while working on a construction barge, appeals from a judgment of the district court dismissing his negligence action against Atkinson-Kiewit, J/V ("A-K"), a firm that was both his employer and the charterer of the barge. Morehead brought this action under section 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et seq., __ ____ authorizing covered employees to sue the vessel as a third party for injury caused by the negligence of the vessel. In its capacity as Morehead's employer, A-K is immune from tort actions brought by covered employees like Morehead. But as the bare boat charterer of the barge on which Morehead was injured, A-K is deemed also to be the statutory vessel owner; and it was in this capacity that A-K was sued. -2- 2 The case raises difficult questions of first impression in this circuit as to the liability of a so-called dual capacity employer under the LHWCA. We must decide whether A- K's alleged negligence occurred in its "employer" capacity (a capacity immune from suit), or rather was in its capacity as "vessel" (a negligence action being authorized under section 905(b) against a vessel as third-party). While the Supreme Court has endorsed the bringing of section 905(b) negligence actions against a dual capacity defendant in its vessel owner capacity, the Court has yet to define, in such a case, the point at which employer responsibility ends and vessel responsibility begins. Nor has the Court decided to what extent principles laid down in negligence actions brought by longshore workers against a vessel owned by a third-party apply to claims by non-stevedoring contractor harbor workers brought against a vessel owned by their own employer. I. Background I. Background Mark Morehead was employed by A-K, a joint venture formed between Guy Atkinson Co. and Kiewit Eastern to complete the construction of the Jamestown Bridge spanning Narragansett Bay in Rhode Island. In order to transport materials and equipment around the bay to the work sites, A-K bare boat chartered several barges. The barges involved in this case, the CHER 106 and the HUGHES 707, were flat deck -3- 3 barges floating platforms bare of structures or equipment. A-K also leased two tugs from Woods Hole Towing Co. to transport the barges where needed. The tugs themselves were crewed by Woods Hole employees.1 A-K hired carpenters from a local union to build the bridge. Their responsibilities included cutting timbers and steel and setting up concrete forms for pours. As the local union's requirements prevented the tug captain or crew from handling the lines on the barges, some carpenters also tended the lines on the barges as "scowmen." Morehead's regular duties included both carpentry and linehandling. On January 29, 1990, Morehead and another carpenter/scowman, Steven Breault, were untying the HUGHES 707 from the CHER 106. A barge was to be surveyed in connection with her going off hire. A tug stood nearby. The barges were not at this time carrying materials or equipment, but rather were set off on the north side of the Davisville ____________________ 1. Although Woods Hole was originally named as a defendant Pier. Breault threw a heavy line to Morehead, who, in in this action, the district court granted its motion for summary judgment against Morehead, who has not appealed from attempting to catch it, stepped backwards into an open hatch that decision. Consequently, Woods Hole is no longer a party. which was flush with the deck on one of the barges. The 2. The district court did not definitively find which barge district court noted conflicting testimony as to which barge Morehead was on at the time of the accident. The court found "more likely" that Morehead was on the HUGHES 707 and Breault Morehead was on when injured,2 but concluded that in any was on the CHER 106, but wrote: "In either event, however, the court would find a single open hatch . . . insufficiently obvious. There would seem a presumption that an unmarked 18 inch opening on an otherwise solid deck is a failure of a reasonably safe proffer to one expected to walk thereon. The court would therefore find the barge, whichever one it was, unseaworthy, but under the statute (33 U.S.C. 905(b)) this is irrelevant." -4- 4 event, the single open hatch was insufficiently obvious. Breault testified that he had opened the hatch on the HUGHES (which he named as the barge to be surveyed) a few days before the accident, because A-K was preparing for an off- hire survey before returning the barge to the owner. Breault testified that a supervisor carpenter had told him to open the hatch. Morehead filed a complaint against A-K and Woods Hole on April 22, 1991, alleging Jones Act negligence, unseaworthiness, maintenance and cure, and negligence under section 905(b) of the LHWCA. Following the denial of A-K's motion for summary judgment, Morehead voluntarily withdrew all claims except his claim for negligence under the LHWCA. A bench trial commenced on April 11, 1994. On April 29, 1994, the district court issued its Findings and Order dismissing Morehead's complaint and A-K's cross-claim against Woods Hole. It wrote: [T]he court does not find it negligence of [appellee] viewed in its capacity as pro hac vice owner. Rather, it appears to be a temporary condition created by it solely in its capacity as charterer. . . . These two capacities are legally separate, even though they be the same individual. This passage confusingly distinguishes between an owner pro hac vice and a bare boat charterer (the statute includes both in its definition of "vessel," see 33 U.S.C. 902(21)). The ___ parties agree that the district court actually meant to -5- 5 distinguish between the appellee as vessel and as employer. We also interpret the district court's order in that fashion. Judgment was entered on May 4, 1994 in A-K's favor. This appeal followed. II. Standard of Review II. Standard of Review A district court's fact-based findings relative to negligence are reviewable only for clear error. See, e.g., ___ ____ Levene v. Pintail Enters., 943 F.2d 528, 535-36 (5th Cir. ______ ________________ 1991), cert. denied, 504 U.S. 940 (1992). However, the _____________ question of whether the district court applied the proper standard of care is one of law, subject to de novo appellate __ ____ review. See, e.g., Keller v. United States, 38 F.3d 16, 22- ___ ____ ______ _____________ 23 (1st Cir. 1994); Elberg v. Mobil Oil Corp., 967 F.2d 1146, ______ _______________ 1149 (7th Cir. 1992). The district court did not explain the criteria it applied in deciding what duties of care to attribute to A-K in its separate capacities, respectively, as LHWCA employer and as owner (charterer) of the barge. Rather, it simply cited along with its conclusions existing precedent relative to section 905(b) liability, e.g., Scindia Steam Navigation ____ _________________________ Co. v. De los Santos, 451 U.S. 156 (1981), and Castorina v. ___ ______________ _________ Lykes Bros. S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474 ________________ ____________ U.S. 846 (1985). The circumstances and context of these and related cases, however, are too removed for their mere -6- 6 citation to reveal the analysis that the district court applied in this case. Nor does the language of the LHWCA provide clear guidance. We can only hope that the Supreme Court will eventually elucidate the standards applicable to dual status employers of harbor workers in circumstances comparable to these. Until then, we do our best to outline the legal principles that, we believe, govern the facts presented here. Under those principles and giving due deference to the district court's authority as fact finder we affirm the judgment below. III. "Vessel" Status III. "Vessel" Status We briefly discuss first a less troublesome issue. The district court provisionally assumed, without deciding, that the barge on which Morehead was injured was a "vessel" within the LHWCA. Section 905(b) permits an LHWCA employee to sue in negligence only "[i]n the event of injury . . . caused by the negligence of a vessel." Section 902(21) of the LHWCA defines "vessel" to include a bare boat charterer among the parties that may be held liable under section 905(b). A-K does not contest its status as bare boat charterer. Nor has it asserted on appeal that the HUGHES and CHER were not themselves "vessels" under the LHWCA. See, e.g., Kathriner ___ ____ _________ v. Unisea, Inc., 975 F.2d 657, 662 (9th Cir. 1992) (to ____________ determine whether a structure is a "vessel" under the LHWCA, -7- 7 most courts have applied the general definition in 1 U.S.C. 3 of a "watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water"); accord DiGiovanni v. Traylor Bros., 830 F. Supp. ______ __________ ______________ 106, 108-09 (D.R.I. 1993). The LHWCA definition of "vessel" is significantly more inclusive than that used for evaluating seaman status under the Jones Act.3 For present purposes, we may assume that both barges were vessels under the LHWCA, for the negligence of which a section 905(b) claim may be brought. IV. Statutory Framework IV. Statutory Framework The LHWCA establishes a comprehensive federal worker's compensation scheme which holds employers liable, irrespective of fault, for securing the payment of the prescribed compensation to qualified maritime employees injured in the course of their employment. 33 U.S.C. 904.4 ____________________ 3. See generally Chandris, Inc. v. Latsis, 115 S. Ct. 2172, ___ _________ ______________ ______ 2192 (1995) (to qualify as a seaman under the Jones Act, "a maritime employee must have a substantial employment-related connection to a vessel in navigation"); Kathriner, 975 F.2d __ __________ _________ at 659-63 (applying tests of "vessel" under Jones Act and LHWCA). Plaintiff withdrew his maritime claims, including the claim of Jones Act negligence. 4. Section 904 provides in relevant part: "(a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title . . . . (b) Compensation shall be payable irrespective of fault as a cause for the injury." 33 U.S.C. 904. -8- 8 This liability of employers is termed "exclusive and in place of all other liability of such employer to the employee." Id. 905(a). ___ Section 905(b) of the Act authorizes certain covered employees to bring an action against the vessel as a third party if their employment injury was caused by the negligence of the vessel.5 But employees may no longer sue the vessel on ____________________ A statutorily covered employee is "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor- worker including a ship repairman, shipbuilder, and ship- breaker," except "a master or member of a crew of any vessel" and other limited categories of workers. Id. 902(3). ___ 5. Section 905(b) provides: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person's employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person's employer (in any capacity, including as the vessel's owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be -9- 9 a strict liability theory for her "unseaworthiness,"6 Congress having eliminated the latter as a remedy for longshore and harbor workers in the 1972 Amendments to the LHWCA. The 1972 Amendments require employees to show fault of the vessel, bar a vessel's obtaining of indemnification from the employer, and have increased the worker's compensation recoverable from an employer. See Addison v. ___ _______ Bulk Food Carriers, Inc., 489 F.2d 1041, 1042 (1st Cir. __________________________ 1974). Focusing on longshore workers who, to date, have been the occupational group chiefly discussed in Supreme Court cases under the LHWCA, the Court described these changes as designed "to shift more of the responsibility for compensating injured longshoremen to the party best able to prevent injuries: the stevedore-employer." Howlett v. _______ Birkdale Shipping Co., 114 S. Ct. 2057, 2063 (1994); see also _____________________ ___ ____ Keller, 38 F.3d at 23. ______ In the 1984 Amendments to the LHWCA, Congress further narrowed the availability of negligence actions by certain categories of harbor workers against a vessel in ____________________ exclusive of all other remedies against the vessel except remedies available under this chapter. 33 U.S.C. 905(b). 6. See 33 U.S.C. 905(b). Unseaworthiness is a maritime ___ remedy that was established "simply by showing that some condition or appurtenance on board the vessel at the time of the accident was unreasonably hazardous, even if the stevedore-employer was the sole cause of the hazard." Keller, 38 F.3d at 23 (citing Seas Shipping Co. v. Sieracki, ______ _________________ ________ 328 U.S. 85, 94 (1946)). -10- 10 circumstances where the employer was also the owner of the offending vessel. In these so-called "dual capacity" cases, Congress barred employees providing "shipbuilding, repairing, or breaking services" from suing the employer-vessel owner for negligence in any capacity. 33 U.S.C. 905(b). The ___ Amendments did not purport to prohibit LHWCA employees other than in the described categories from suing for negligence in dual capacity cases. See H.R. Rep. No. 98-570(I), 98th ___ Cong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 2734, 2741 _________ __ (hereafter 1984 U.S.C.C.A.N.) ("The Committee intends that this language [in 905(b)] not be construed to limit an employee's right to bring a cause of action, except in the circumstances indicated within the language."); cf. Guilles ___ _______ v. Sea-Land Serv., Inc., 12 F.3d 381, 386 (2d Cir. 1993) _______________________ (affirming relief cook's judgment against negligent employer- vessel owner and explaining that "[t]he 1984 change . . . shows that Congress knew how to preclude a class of employees from being able to sue an employer-vessel if it chose to do so"); Gay v. Barge 226, 915 F.2d 1007, 1010 (5th ___ _________ Cir. 1990) ("[T]he 905(b) bar is specific to the occupations listed: shipbuilders, ship repairers and ship breakers."). The Supreme Court had previously interpreted section 905(b) to permit covered employees to bring third-party negligence actions against their employer qua vessel owner. -11- 11 See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, ___ _____________________________ _______ 530-32 (1983) (asserting that if Congress had intended to exempt employer-vessel owners from negligence suits, then the sentence in section 905(b) barring recovery from them where fellow longshore workers caused the injury would have been unnecessary). As Morehead's occupational category does not fall within any of those Congress expressly excepted in the 1984 Amendments, supra, Jones & Laughlin would appear under _____ ________________ current construction of the statute to allow Morehead to bring a third-party negligence action against A-K in its vessel capacity.7 To prevail, however, Morehead has to show that any negligence on A-K's part is attributable to it as vessel rather than as Morehead's insured LHWCA employer. V. Defining the Vessel's Duty of Care: The Supreme Court V. Defining the Vessel's Duty of Care: The Supreme Court Cases Cases As Jones & Laughlin allows Morehead to bring a third- ________________ party negligence action against a vessel owner even though the latter is simultaneously his statutorily-immune employer, we need to find the principles for determining whether the alleged acts of negligence the open hatch and failure to ____________________ 7. The parties have not disputed on appeal that Morehead is a statutorily covered employee of a statutorily covered employer. As a harbor worker with carpentry and linehandling duties, Morehead meets the statutory definition of a covered employee under section 902(3) and does not fall within any of the categories of workers expressly prohibited from suing under section 905(b). -12- 12 warn are attributable to A-K qua vessel owner rather than qua employer. The Supreme Court has indicated that Congress left to the courts the task of defining the vessel's duty of care. See Howlett, 114 S. Ct. at 2063 ("Because Congress did ___ _______ not 'specify the acts or omissions of the vessel that would constitute negligence,' the contours of a vessel's duty to longshore workers are 'left to be resolved through the "application of accepted principles of tort law and the ordinary process of litigation."'") (citing Scindia, 451 U.S. _______ at 165-66). In Scindia Steam Navigation Co. v. De los Santos, 451 _____________________________ ______________ U.S. 156 (1981), the Supreme Court considered the duty of care that a vessel owner owed to an injured longshore worker who was employed by an independent stevedoring firm. For this common triangular relationship at least vessel, stevedore, and longshore worker8 the Court held that limiting the vessel's duty of care so as to put the chief responsibility upon the independent stevedore was consistent with Congress' intent to permit third-party negligence actions against the vessel but to eliminate the vessel's no- ____________________ 8. In Howlett, the Court suggested that this relationship _______ was the typical one in the longshoring business. See ___ Howlett, 114 S. Ct. at 2062 ("The injured longshoreman's _______ employer in most instances, an independent stevedore, see ___ Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 _______ ___________________________________ (1979) must pay the statutory benefits regardless of fault, but is shielded from any further liability to the longshoreman.") (other citations omitted). -13- 13 fault liability (the "unseaworthiness" claim). In Howlett, a _______ case that also involved a longshore worker suing an independent vessel, the Court restated the vessel's limited residual duties: The first, which courts have come to call the "turnover duty," relates to the ______________ condition of the ship upon the commencement of stevedoring operations . . . . The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the "active control of the vessel.". . . _____________________________ The third duty, called the "duty to ________ intervene," concerns the vessel's _________ obligations with regard to cargo operations in areas under the principal control of the independent stevedore. Howlett, 114 S. Ct. at 2063 (citations omitted) (emphasis _______ added). This court recently applied these duties in Keller v. ______ United States, 38 F.3d 16 (1st Cir. 1994), a case also ______________ involving the triangular relationship of vessel, stevedoring contractor, and longshore worker. We described two duties of a vessel prior to "turnover": the "duty to warn" and the "duty of safe condition." Id. at 23-24. We further ___ described three "continuing" duties of care: First, the vessel owner might remain under such a duty were it to retain actual physical control or custody of a portion of the vessel, or participate in stevedoring operations. Scindia, 451 _______ U.S. at 167, 101 S. Ct. at 1622 . . . . Second, a duty to intervene might attach in the event the vessel owner were to -14- 14 acquire actual knowledge that "unsafe _________________ conditions" had developed in the vessel's _________ appurtenances since turnover, that the stevedore-employer will not address the unsafe condition, and that the ___ stevedore's decision not to remedy the developing hazard was "obviously improvident" in the circumstances. Id., ___ at 174-75, 101 S. Ct. at 1625-26. Third, even absent actual control, participation or knowledge, a post-"turnover" duty may arise if the vessel owner was obligated, by contract, statute or custom, to monitor stevedoring operations for the purpose of detecting and remedying unsafe conditions. Id. at 172, 101 S. Ct. at __ 1624-25. Id. at 32. ___ Keller affirmed a judgment that an independent vessel ______ owner had breached neither its turnover nor its continuing duties to a longshore worker who had fallen from a ladder on board the vessel. We ruled that the district court had not erred in relying on testimony based on industry standards, which indicated fulfillment of the turnover duty. We also found no breach of a continuing duty of the vessel, where the allegedly dangerous condition developed during cable loading operations which were under the stevedore's control. As did the Supreme Court in Scindia, this court noted _______ the independent stevedore's greater skill and expertise relative to the vessel's, making the former better positioned than the vessel to prevent employee injury, and the traditional stevedoring warranty to perform competently. See ___ id. at 29-30; see also Howlett, 114 S. Ct. at 2065 ("The rule ___ ___ ____ _______ -15- 15 relieving vessels from this general duty [to exercise reasonable care to discover dangerous conditions that develop] rests upon 'the justifiable expectations of the vessel that the stevedore would perform with reasonable competence and see to the safety of the cargo operations.'") (citation omitted); Scindia, 451 U.S. at 172 ("[the 1972 _______ Amendments] did not undermine the justifiable expectations of the vessel that the stevedore would perform with reasonable competence and see to the safety of the cargo operations"). Further supporting the vessel owner's justifiable reliance on the stevedore is that the latter is "subject to detailed legislative and administrative prescriptions for affording its workers a 'safe' workplace." Keller, 38 F.3d at 24 ______ (citing 33 U.S.C. 941 and accompanying regulations, 29 C.F.R. 1918.1-1918.106, 1918.25, and Scindia, 451 U.S. _______ at 170). In Scindia and Howlett the Supreme Court, as noted, _______ _______ outlined a vessel owner's duties of care relative to a longshore worker employed by an independent stevedore.9 But the Supreme Court has not yet had occasion to analyze the ____________________ 9. Other courts have applied Scindia duties to LHWCA- _______ covered employees other than longshore workers in the familiar tripartite context. See, e.g., Elberg, 967 F.2d at ___ ____ ______ 1149-50 (welder); Teply v. Mobil Oil Corp., 859 F.2d 375, 377 ________________________ (5th Cir. 1988) (worker at barge-accessible oil well). -16- 16 vessel's duties in a dual capacity case.10 Nor has the Court considered to what degree its Scindia analysis applies to _______ non-longshoring harbor workers, whose duties and modus operandi often differ considerably from those of longshore workers.11 The Court has said, though, that "[o]f course, [section 905(b)] does make it clear that a vessel owner acting as its own stevedore is liable only for negligence in its 'owner' capacity, not for negligence in its 'stevedore' [the insured employer] capacity." Jones & Laughlin, 462 U.S. ________________ at 531 n.6. How to distinguish between vessel owner negligence and employer negligence where the same entity is both vessel owner and employer is key here, because Morehead's statutory right to sue is solely for injury caused by the vessel negligence of a vessel as third-party. For other work ____________________ 10. In Jones & Laughlin, the negligence of the dual capacity ________________ defendant qua vessel had been conceded. 11. Longshore workers such as those in Scindia typically _______ load and unload cargo ships that are operated full-time by a master and crew. Vessel negligence can often be distinguished from stevedore negligence by determining to what extent the dangerous condition was caused, or allowed to persist, by reason of the neglect of the vessel's crew rather than of the stevedoring employees. Harbor workers, however, may work (as here) on construction barges that are moved about by tugs and have no fully-dedicated professional crew as such. As part of their employment, the harbor workers may do whatever is needed from time to time to tend lines and service the barges, besides performing construction duties as carpenters, electricians, or the like. Thus, assessing what responsibilities fall within the purview of the vessel's ______ duty of care, as distinguished from the employer's, can be an elusive quest. -17- 17 injuries within the scope of his employment, the LHWCA expressly provides that he must accept the worker's compensation prescribed under the LHWCA as "exclusive and in place of" all other employer liability. 33 U.S.C. 905(a). A further matter complicates this case: as the defendant has two capacities, so too, it might be said, does the plaintiff. Morehead was a carpenter, but was hired to perform both carpentry and scowmen's duties. A-K did not employ a separate crew on its barges.12 As we will discuss further below, this "double dual capacity" aspect of the case ______ is a factor to be considered in determining whether negligent acts are properly attributable to a defendant as vessel.13 ____________________ 12. As noted, the tugs that towed the barges were captained and crewed by employees of Woods Hole, which supplied the tugs. These employees did not handle the lines on the barges; under union rules, only carpenters/scowmen employed by A-K (such as Morehead) did. 13. This mix of responsibilities might, in other cases, expand the range of possible remedies available to an injured employee, who must then choose between the mutually exclusive regimes of the LHWCA and Jones Act. See Chandris, 115 S. Ct. ___ ________ at 2183-84 (citing McDermott Int'l, Inc. v. Wilander, 498 ______________________ ________ U.S. 337, 347 (1991)). In Southwest Marine, Inc. v. Gizoni, ______________________ ______ 502 U.S. 81 (1991), the Supreme Court held that a shipyard rigging foreman who handled lines connecting floating platforms to vessels under repair was not precluded as a matter of law from seeking a tort remedy under the Jones Act merely because ship repairers are among those jobs specifically enumerated under the LHWCA. See id. at 89 ("By ___ ___ its terms the LHWCA preserves the Jones Act remedy for vessel crewmen, even if they are employed by a shipyard. A maritime worker is limited to LHWCA remedies only if no genuine issue of fact exists as to whether the worker was a seaman under the Jones Act."). Morehead withdrew his Jones Act claim, presumably because he did not believe he could establish Jones Act -18- 18 VI. Lower Court Precedent VI. Lower Court Precedent While the Supreme Court has said little about dual capacity cases beyond giving approval to the suing of dual capacity defendants in their vessel owner capacity, some circuits have decided cases similar to ours. They have asked whether the alleged negligence was due to the defendant qua employer or qua vessel, with recovery allowed only in the latter instance. And, principles borrowed from Scindia have _______ been applied to harbor workers as well as longshore workers. Applying Scindia to a dual capacity defendant raises _______ questions even in the longshoring context. For example, if a defendant is aware of a defect in the work area as stevedore employer, should such awareness also be attributed to it as vessel owner? And as we note supra, Scindia and Keller _____ _______ ______ emphasized a vessel owner's reliance upon the presumed expertise of the stevedore, an independent contractor. Where the vessel owner is also the stevedore, is it reasonable to attribute such reliance? ____________________ seaman status. Nonetheless, Morehead has attempted to focus our attention on the vessel-type responsibilities that Breault performed in the period before the injury, as discussed infra. While an emphasis on vessel-type duties may _____ be appropriate for the fact-specific inquiry into seaman status, we place little weight on this attempt to bifurcate vessel and construction activities when these workers were hired to perform both. The definition of a covered employee under the LHWCA excludes "a master or member of a crew of any vessel." 33 U.S.C. 902(3). It seems inconsistent with this exclusion for Morehead to buttress his claim under the LHWCA with arguments portraying a fellow employee, Breault, as if he were a member of the crew of the vessel. See infra. ___ _____ -19- 19 Concerns of this nature led the Second Circuit in Fanetti v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir. 1982), _______ ___________________ cert. denied, 463 U.S. 1206 (1983), to indicate that a _____________ longshore worker's claim against a dual capacity defendant would be analyzed differently from a claim against a separate shipowner brought by the employee of an independent stevedore. In Fanetti, a longshore worker was injured on _______ deck by an unsafe condition. The dual capacity defendant argued that 1) in its role as employer-stevedore, it was primarily responsible for the safety of the workplace, and 2) as vessel owner, it should be able to rely upon its expertise as stevedore, thereby avoiding liability as vessel for the negligence. The Second Circuit rejected the defendant's attempt to escape liability in negligence as vessel by seizing its "employer hat." Relying on a dissent by Judge Friendly in Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 687 (2d Cir.) _______ ____________________ (Friendly, J., dissenting), cert. denied, 439 U.S. 929 _____________ (1978), the court of appeals ruled that a vessel assumes a greater duty of care when there is no independent employer _______ ___________ responsible for workplace conditions, upon whom the vessel owner may rely to oversee the safety of the workplace on board. See Fanetti, 678 F.2d at 428 (citing Canizzo, 579 ___ _______ _______ F.2d at 689-90). -20- 20 Rearranging duties of care as in Fanetti raises serious _______ problems, discussed hereafter, by enlarging an employer's tort liability beyond the purposes of the 1972 Amendments. Cf. Howlett, 114 S. Ct. at 2063. Fanetti, moreover, was ___ _______ _______ decided before Jones & Laughlin was handed down in the _________________ Supreme Court. We do not think that the Second Circuit today would endorse Fanetti's broadened duty of care, given the _______ Supreme Court's remark "that a vessel owner acting as its own stevedore is liable only for negligence in its 'owner' capacity, not for negligence in its 'stevedore' capacity." Jones & Laughlin, 462 U.S. at 531 n.6. This comment suggests ________________ that the Court expected the limited vessel liability in Scindia to carry over to dual capacity situations as well. _______ No later case from the Second Circuit, nor from any other circuit, has been called to our attention following Fanetti's _______ enlargement of a vessel's duty in a dual capacity situation.14 Cf. Guilles, 12 F.3d at 383, 387 (a recent ___ _______ Second Circuit decision citing Fifth Circuit authority contrary to Fanetti and ruling only that a valid cause of _______ action under section 905(b) existed, where the parties had ____________________ 14. Fanetti might have reached the same result of vessel _______ liability without applying a broader duty of care. The defendant did not dispute that the vessel's crew created the hazard while performing work unrelated to longshoring operations. See Fanetti, 678 F.2d at 426. In this ___ _______ situation, the defendant qua vessel arguably had active control over the crew and knew or should have known about the injury-causing actions, making it liable even under the Scindia standards. _______ -21- 21 stipulated to the vessel's negligence). Whether or not termed dicta, we do not feel free to overlook the Court's statement in Jones & Laughlin. ________________ Contrary to Fanetti, the Fifth Circuit, which has _______ decided a great number of LHWCA cases, has allocated the same vessel duties of care to dual and single capacity defendants. It regards this approach as in keeping with the Supreme Court's limiting of a vessel's duty of care (e.g., Scindia ____ _______ and Jones & Laughlin), and with Congress' intent to provide ________________ injured workers the same remedies, regardless of whether their employer or another happens to be the legal owner of the vessel.15 The seminal Fifth Circuit case was Castorina v. Lykes _________ _____ Bros. S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474 U.S. ___________ ____________ ____________________ 15. Other courts have followed suit. See, e.g., Halpin v. ___ ____ ______ Atkinson-Kiewit, J.V., 894 F. Supp. 486 (D. Mass. 1995) ______________________ (applying Scindia duties and denying defendant's motion for _______ partial judgment on the pleadings); DiGiovanni v. Traylor __________ _______ Bros., 855 F. Supp. 37 (D.R.I. 1994), appeal docketed, No. _____ _______________ 94-1775 (1st Cir. July 27, 1994) (finding no violation of Scindia duties where hazard was obvious following "turnover" _______ of the vessel, defendant as vessel lacked "active control" over or knowledge of leak from equipment placed aboard for employment operations, and the circumstances did not give rise to a duty to intervene); Koernschild v. W.H. Streit, ___________ _____________ Inc., 834 F. Supp. 711 (D.N.J. 1993) (applying Scindia duties ____ _______ and denying summary judgment to the defendant where factual dispute existed concerning the plaintiff's awareness of the hazard); Coats v. Luedtke Eng'g Co., 744 F. Supp. 884 (E.D. _____ __________________ Wisc. 1990) (deeming "employer" responsible for providing employee a safe passageway to his job on the vessel, and granting summary judgment to the defendant given its lack of "active control" as vessel over a condition off-board the vessel). -22- 22 846 (1985). There, a longshore worker exposed to asbestos during cargo operations alleged that his employer-vessel owner knew of the harm qua vessel and failed to make the vessel safe. The Fifth Circuit stated that the LHWCA compensation scheme "requires us to separate the negligence of the shipowner and that of the stevedore, even when the shipowner performs its own stevedoring activities." Id. at ___ 1033. Noting that the alleged harm had arisen during stevedoring activities, the court refused to impute any knowledge of this danger by the employer to it as vessel. It explained: To impute this knowledge to a shipowner- employer would be to hold it liable in tort for damages arising from its negligence as stevedore, and effectively to eliminate the exclusivity provisions of sections 905(a) & (b). This result is contrary to the language and purpose of the Act as amended. We therefore hold that the duty owed by a shipowner to a longshoreman under section 905(b) is that established by Scindia and its progeny; _______ this duty is neither heightened nor diminished when the longshoreman is employed directly by the vessel. Id.; accord Tran v. Manitowoc Eng'g Co., 767 F.2d 223, 228 ___ ______ ____ ____________________ (5th Cir. 1985). On the facts of Castorina, it was relatively easy to _________ apply the Scindia standard to the shipowner-employer. In a _______ later case, the Fifth Circuit applied Scindia in a more _______ complex situation involving a harbor worker. In Levene v. ______ Pintail Enters., 943 F.2d 528 (5th Cir. 1991), cert. denied, _______________ ____________ -23- 23 504 U.S. 940 (1992), the injured employee was a heavy equipment operator who performed other maritime tasks as well. A captain had instructed Levene to untie another owner's barge, which blocked access to the particular barge they had been instructed to pick up. Levene was injured on the other owner's barge, where grease and scrap materials were present on the d |