Stewart v. Dutra Const. Co., Inc., 02-1713.

Decision Date04 September 2003
Docket NumberNo. 02-1713.,02-1713.
PartiesWillard T. STEWART, Plaintiff, Appellant, v. DUTRA CONSTRUCTION COMPANY, INC., Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Before TORRUELLA, LYNCH and HOWARD, Circuit Judges.

David B. Kaplan, with whom Thomas M. Bond and The Kaplan/Bond Group were on brief, for appellant.

Frederick E. Connelly, Jr., with whom Peabody & Arnold LLP was on brief, for appellee.

TORRUELLA, Circuit Judge.

Plaintiff-Appellant Willard T. Stewart appeals a decision from the District of Massachusetts granting summary judgment to Defendant-Appellee Dutra Construction Company ("Dutra"), Stewart's employer and the owner of the vessel on which Stewart was injured. Following our decision in Morehead v. Atkinson-Kiewit, 97 F.3d 603 (1st Cir.1996) (en banc), we affirm the district court's grant of summary judgment.

I.

Dutra is a dredging company hired by the Commonwealth of Massachusetts to perform drilling, blasting, and dredging work for an immersed tube tunnel under Boston Harbor, now known as the "Ted Williams Tunnel." Dutra used the dredge SUPER SCOOP and the Scow 4 for this work. The SUPER SCOOP is a typical dredge with a clamshell bucket; its function was to move through Boston Harbor, from East Boston to South Boston, digging the ocean bottom as it moved. The Scow 4 was used in conjunction with the SUPER SCOOP. It would be brought alongside the dredge and filled with sediment and dredging material that had been scooped from the ocean bottom by the SUPER SCOOP. Once filled, the Scow 4 would then transport the material out to sea for dumping.

In 1991, Dutra hired Willard Stewart, a marine engineer, to maintain the mechanical systems of the SUPER SCOOP. Stewart spent the majority of his time aboard the SUPER SCOOP, though occasionally he was required to perform maintenance tasks aboard the Scow 4. One such task occurred when the scow's engine malfunctioned, sometime in the middle of July, 1993. With the scow's engine out of commission, the scow doors could not be opened or closed; as a result, dredging operations came to a temporary halt. To repair the scow, Dutra hired Southworth Milton, an independent contractor, which sent its representative, Timothy Angell, to repair the engine. Dutra also arranged for several of its employees, including Stewart, to assist in the repair process. Eventually it was determined that the engine was beyond repair and would need to be replaced.

Access to the engine was via a hatch on the Scow 4. The old engine was removed, and a new engine was lowered into the scow by means of a crane. At some point it was determined that a protective railing guarding the hatch obstructed the removal of the old engine. The protective railing was subsequently removed.

On July 15, 1993, Angell and Stewart were working aboard the Scow 4. Angell was working in the engine area, and had been for two or three days. Stewart was kneeling over the unguarded open hatch, about ten feet above the engine area, feeding wires through the hatch. While Stewart was precariously perched above the hatch, the SUPER SCOOP's crew moved the scow. At some point in the moving process, there was a jolt, and Stewart plummeted headfirst to a deck below. He was seriously injured.

Stewart filed a complaint for damages under the Jones Act, 46 U.S.C.App. § 688. The complaint was amended to add an alternative count for vessel negligence pursuant to § 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 a vessel. Stewart's Jones Act and LHWCA claims were predicated upon three alleged acts of negligence. Stewart argues that Dutra was negligent in: (1) causing the scow to crash suddenly into the SUPER SCOOP; (2) failing to sound a warning blast prior to moving the scow; and (3) creating an unsafe work environment by removing the protective railing around the hatch.

Dutra responded with motions for summary judgment on both counts. Ruling first on the Jones Act count, the district court concluded that because the SUPER SCOOP was not a "vessel," as that term is defined by the Jones Act, Dutra was entitled to an award of summary judgment. Stewart appealed that decision, and we affirmed, concluding that the SUPER SCOOP is not "a `vessel in navigation' as that term has developed in the jurisprudence of the Jones Act." Stewart v. Dutra Constr. Co., 230 F.3d 461, 469 (1st Cir.2000) (Stewart I).

Following our decision in Stewart I, Dutra renewed its motion for summary judgment on the LHWCA claim. The district court granted the motion, and stated only that it was granting Dutra's motion for summary judgment based on the application of Morehead v. Atkinson-Kiewit, 97 F.3d 603 (1st Cir.1996) (en banc). Stewart now appeals that decision.

II.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir.2003) (citing Fed.R.Civ.P. 56(c) (2003)). We review the district court's award of summary judgment de novo, construing the record in the light most favorable to Stewart and resolving all reasonable inferences in his favor. Id.

A. "Vessel" Status

Unlike the Stewart I Court, we need not labor over the "vessel" status of the SUPER SCOOP or scow for purposes of the LHWCA. Although the LHWCA permits an employee to sue in negligence only in the event of an injury caused by the negligence of a vessel, 33 U.S.C. § 905(b), the LHWCA's definition of "vessel" is "significantly more inclusive than that used for evaluating seaman status under the Jones Act." Morehead, 97 F.3d at 607. Accordingly, Dutra has conceded that for LHWCA purposes, the SUPER SCOOP and Scow 4 are "vessels."

B. Dual Capacity Cases Under the LHWCA

The LHWCA is a comprehensive worker's compensation system which holds employers liable for compensating covered employees injured in the course of their employment, regardless of fault.1 33 U.S.C. § 904. The statutory no-fault compensation payments provided by the LHWCA are considered "exclusive and in place of all other liability of such employer to the employee." Id. § 905(a). Therefore, employees covered by the LHWCA are statutorily barred from suing their employers for injuries incurred in the course of their employment. However, while the compensation scheme is the employee's exclusive remedy regarding his employer, the employee is still free to sue the vessel owner as a third party if his injury was caused by the negligence of the vessel.

Where, as here, the same entity is both employer and vessel owner, the question becomes whether the dual capacity defendant's alleged acts of negligence were committed in its capacity qua employer (for which it is immune from tort liability under § 905(a)) or qua vessel owner (for which it may be held liable under § 905(b)). See Morehead, 97 F.3d at 610. Though dual capacity cases are by nature complex, we fortunately proceed under the guidance of Morehead, which has already addressed most of the dual capacity issues raised by the appellants.

1. Morehead v. Atkinson-Kiewit

In Morehead, the en banc Court considered a dual capacity claim very similar to this case. Morehead was employed as a carpenter on a bridge construction project and a line-handler on a barge used for the project. Id. at 605. Atkinson-Kiewit ("A-K"), the construction contractor, was not only Morehead's employer, but, as charterer of the barge, was also the vessel owner. Id. at 606-07 (noting that under 33 U.S.C. § 902(21) bare-boat charterers such as A-K were liable as vessel owners under § 905(b)). While Morehead was handling a heavy line on the barge deck, he stepped backwards into an open hatch and was injured. The hatch had negligently been left open by a co-worker, who, like Morehead, had been hired both for carpenter and scowman duties. Id. at 614.

The plaintiff argued that A-K violated vessel duties owed to Morehead because at the time he was injured "A-K as vessel (rather than A-K as employer) [had] `active control' over the open hatch." Id. That is, because no construction purpose (and therefore no employment purpose) was being pursued at the time of his injury, the hatch was within A-K's control in its capacity as a vessel owner, not an employer.2 Id.

We rejected this argument, and found instead that both Morehead and the employee who left the hatch open "had been hired both for carpenter and scowman duties." Id. We noted that both employees "were expected as part of their employment duties to lend a hand with supporting maritime chores as well as to pursue their particular construction trade." Id. Consequently, we agreed that A-K's "active control" over the open hatch was "therefore attributable to it as employer, not as vessel, since the hatch was opened ... and the line thrown in the course of harbor worker duties which both men were regularly hired to perform." Id. Since both men were acting as employees, rather than as A-K's agent in a distinct shipowner's capacity, we found that any negligence on A-K's part was committed in its capacity qua employer. Id. at 616. As a result, Morehead's suit was barred under § 905(a). Id.

In reaching this conclusion, we expressly rejected any dual capacity approach that would focus on the specific activities of the employee to determine whether the employee's actions were benefitting the defendant in its capacity as vessel owner or employer at the time the employee was injured. Id. at 614-15. That is, we rejected any "functional" approach which would lead us to question whether an accident occurred "in furtherance of a `construction' objective or a `vessel' objective." Id. We stated:

A "functio...

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3 cases
  • Stewart v. Dutra Construction Co.
    • United States
    • U.S. Supreme Court
    • February 22, 2005
    ...the term "vessel" in either § 902(3)(G) or § 905(b), and 1 U. S. C. § 3 defines the term "vessel" throughout the LHWCA. Pp. 495-497. 343 F. 3d 10, reversed and THOMAS, J., delivered the opinion of the Court, in which all other Members joined, except REHNQUIST, C. J., who took no part in the......
  • Stewart v. Dutra Const. Co., Inc., 99-1487.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 9, 2005
    ...summary judgment for the defendant on the LHWCA claim as well. We rebuffed the plaintiff's ensuing appeal. Stewart v. Dutra Constr. Co., 343 F.3d 10, 18 (1st Cir.2003) (Stewart II). The plaintiff then filed a petition for a writ of certiorari to determine the SUPER SCOOP's status. The Supre......
  • Goldstein v. Harvard University
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 14, 2003
    ...the grant of summary judgment de novo, construing the evidence in the light most favorable to Goldstein. See Stewart v. Dutra Const. Co. Inc., 343 F.3d 10, 13 (1st Cir. 2003). We may affirm the district court's decision on any sufficient ground revealed by the record. Rodriquez v. Smithklin......
1 books & journal articles
  • Admiralty - Robert S. Glenn, Jr., Colin A. Mcrae, and Jessica L. Mcclellan
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 56-4, June 2005
    • Invalid date
    ...Id. at 400. 26. 125 S. Ct. 1118 (2005). 27. 33 U.S.C. Sec. 901 (2000). 28. Stewart, 125 S. Ct. at 1121. 29. Stewart v. Dutra Constr. Co., 343 F.3d 10, 12 (1st Cir. 2003). 30. Id. at 13. 31. 46 App. U.S.C. Sec. 688(a) (2000). 32. 33 U.S.C. Sec. 905(b) (2000). This section provides, in pertin......

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