Keller v. U.S.

• Decision Date: 10 June 1994
• Docket Number: No. 94-1136,94-1136
• Citation: 38 F.3d 16
• Parties: , 63 USLW 2270 Steve V.B. KELLER, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

38 F.3d 16

1995 A.M.C. 397, 63 USLW 2270

Steve V.B. KELLER, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 94-1136.

United States Court of Appeals First Circuit.

Heard June 10, 1994.

Decided Oct. 19, 1994.

Christopher Cole, Manchester, NH, with whom Michael J. Donahue, Donahue, McCaffrey, Tucker & Ciandella, Exeter, NH, David S. Brown, and Sheehan, Phinney, Bass & Green, Manchester, NH, were on brief, for appellant.

Gretchen Leah Witt, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellee.

Before TORRUELLA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Plaintiff Steven V.B. Keller appeals from a belated judgment dismissing his Longshore and Harbor Workers' Compensation Act suit, see 33 U.S.C. Secs. 901-950, Sec. 905(b) (1993) (LHWCA), to recover damages for injuries sustained in a fall on board a maritime vessel owned by defendant-appellee United States of America. As appellant has not demonstrated--nor careful scrutiny disclosed--that the unprecedented decision-making delay in this case rendered the district court's findings unreliable, we affirm the judgment.

I BACKGROUND

In 1978, the United States Navy converted the U.S.S. ARTHUR M. HUDDELL, a World War II Liberty Ship, into a non-motorized barge for storing and transporting maritime cable purchased by the Navy from Simplex Wire and Cable Co. The retrofitted HUDDELL was towed to Simplex's facility at Newington, New Hampshire, for cable loading in May 1979, where it remained moored for two years.

The cargo hold had been adapted to house several round tanks, recessed sixteen feet into the 'tween deck. Simplex hired temporary employees--known as cable loaders--to descend into these tanks from the 'tween deck for the purpose of winding the incoming At the time Simplex hired Keller as a cable loader, he was a nonmatriculating sophomore at the University of New Hampshire. On the night of November 4, 1979, Keller went to a bar, where he and his friends drank approximately 120-160 ounces (or two six-packs) of beer between 10:00 p.m. and 11:20 p.m. Keller reported for work at about 11:30 p.m., and was assigned to Tank 4 for the first time. He and several coworkers climbed down the ladder from the 'tween deck into Tank 4 without incident, where they loaded cable until 2:00 a.m.

"wet" cable in concentric layers onto a spool. During the HUDDELL's retrofitting, the Navy installed a nonremovable metal barrier around Tank 4 to prevent workers on the 'tween deck from falling into the tank. The barrier included two uninterrupted safety railings located at the top of an access ladder attached to the interior wall of the tank to permit access to and from the tank floor. In order to exit the tank, a cable loader would climb to the top rungs of the ladder, at which point three options were available for getting from the tank onto the 'tween deck floor: (1) holding onto a "grab bar," which was attached to the 'tween deck floor and located six inches from the outside edge of the tank, then crawling forward and passing under the lower railing and between the vertical stanchions supporting the two railings; (2) stepping in a crouched position between the lower and upper railings of the barrier; or (3) climbing over the top railing located approximately five feet above the 'tween deck floor.

When it came time for a work break, Keller climbed to the top of the ladder, and, according to coworker Rhonda Rossley, grabbed the lower safety railing with his left hand and placed his left foot on one of the two top rungs of the ladder. Then, as he began to raise his right leg, he fell backward, neither attempting to regain his purchase nor crying out, and plummeted to the tank floor sixteen feet below, landing on his head. When a Simplex foreman administered first aid, he detected the odor of alcohol. A blood-alcohol test taken at 3:00 a.m., some three and one-half hours after Keller had reported for work, revealed a .14 blood-alcohol level, well above the .10 prima facie blood-alcohol level for demonstrating that a motor vehicle operator is under the influence. See N.H.Rev.Stat.Ann. Sec. 262-A:63 (1963) (amended 1994, lowering limit to .08). Since the fall, Keller has remained amnesiac as to all events surrounding the accident.

Following a seven-day bench trial on Keller's claims against the United States for negligently installing "unsafe" lighting and railings and an "unsafe" ladder in Tank 4, and for failing to warn Simplex workers of the potential danger, see 33 U.S.C. Sec. 905(b), the district court ultimately awarded judgment to the United States. See Keller v. United States, No. 81-549-SD, 1993 WL 743979 (D.N.H. Dec. 30, 1993). ¹

II

DISCUSSION

Three principal issues must be addressed. First, did the eight-year lapse between the bench trial and entry of final judgment deprive the trial court findings of the customary deference on appeal, or violate Keller's constitutional rights to access to the courts and due process, see generally U.S. Const. amends. I, V? Second, did the district court make clearly erroneous factual findings, or fail to make required findings, see Fed.R.Civ.P. 52(a), regarding the alleged breach of the vessel owner's "turnover" duties of care? Third, did the district court misdefine a vessel owner's "continuing" duty to inspect or supervise cargo loading operations for developing hazards?

A. The Decision-making Delay

First, Keller claims that an unprecedented eight-year delay between trial and the entry of judgment, coupled with the trial judge's failure to refresh his recollection through recourse to a complete trial transcript prior to making findings of fact, resulted in a violation of his constitutional right to Keller concedes that neither Chamberlin nor Fernberg concluded that prolonged decision-making delay, per se, requires vacatur. Nor has he cited authority for a per se rule fixing an outer limit on decision-making delay. Cf. Ad Hoc Comm., 488 F.2d at 1244 (rejecting per se rule under Federal Constitution for bounding decision-making delay in state court civil cases); cf. also, Los Angeles County Bar Ass'n v. March Fong Eu, 979 F.2d 697, 705-06 (9th Cir.1992) (conducting ad hoc inquiry to determine whether pretrial delay "exceed[ed] constitutional boundaries").

"access to the courts" and to due process, see U.S. Const. amends. I, V; Ad Hoc Comm. on Judicial Admin. v. Massachusetts, 488 F.2d 1241, 1244 (1st Cir.1973) (noting that pretrial delay might violate constitutional rights if a civil litigant is "denied for too long his day in court"), cert. denied, 416 U.S. 986, 94 S.Ct. 2389, 40 L.Ed.2d 763 (1974), or in a violation which warrants withholding the customary appellate deference accorded trial court findings. Cf. Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 787 (1st Cir.1990) (excusing two-year delay); Fernberg v. T.F. Boyle Transp., Inc., 889 F.2d 1205, 1209 (1st Cir.1989) (excusing two and one-half year delay). Keller attributes the purported generality in the district court findings, see infra Section II.B, to this extended decision-making delay, and implicitly relies on a conclusive presumption that the court was unable to make more complete and detailed findings as it could not recall the evidence presented at trial almost eight years earlier.

There are sound reasons for abjuring a per se rule even in cases involving plainly excessive delay. In the first place, ad hoc appellate scrutiny is indispensable to the core determination whether delay rendered the decision unreliable. Secondly, it is highly doubtful that direct appellate review affords "an effective means of enforcing district court timeliness." See Phonetele, Inc. v. American Tel. & Tel. Co., 889 F.2d 224, 232 (9th Cir.1989) (delay approximating four years), cert. denied, --- U.S. ----, 112 S.Ct. 1283, 117 L.Ed.2d 508 (1992). Thirdly, remands for reconsideration or retrial yield yet further delays, exacerbating the burdens on litigants. For these reasons, and notwithstanding our parallel supervisory responsibility, see, e.g., 28 U.S.C. Sec. 1651 (mandamus jurisdiction); Petition of Henneman, 137 F.2d 627, 630 (1st Cir.1943), we consider it critically important that appellate attention remain focused on ensuring that trial court findings, despite inordinate decision-making delay, not be squandered unless their reliability has been undermined. We therefore opt for careful de novo scrutiny of the entire record with a view to whether the prolonged delay in reaching a decision rendered the trial court's findings of fact unreliable to the degree that vacation of its judgment is warranted despite the admittedly severe impediments to reliable fact-finding in the event of a remand for new trial. Cf. Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972) (long pretrial delays threaten to impair criminal defense, lest witnesses die, disappear, or suffer memory loss or distortion).

Notwithstanding the eight-year interval between trial and judgment, for which we have been unable to glean adequate explanation, neither Keller nor the record on appeal suggests that the district court did not perform its decision-making responsibility with care. As Keller's several requests to expedite the decision-making process acknowledge, the district court was in no sense indifferent to its responsibility to render a decision but encountered extraordinary docket pressures at the same time it was required to give precedence to its criminal caseload. See Speedy Trial Act, 18 U.S.C. Sec. 3161 (1993).

Nor would we well serve the interests of justice, or the integrity of the decision-making process, were we to presume that the absence of a complete trial transcript rendered the district court incapable of determining matters relating to witness demeanor and credibility, or to recollect or reconstruct trial testimony, through other reliable means (viz., trial notes, voluminous trial...