Mark Morehead v. Atkinson-Kiewit, J/V
| Decision Date | 02 March 1995 |
| Docket Number | J,No. 94-1581,ATKINSON-KIEWI,94-1581 |
| Citation | 75 F.3d 736 |
| Parties | , 64 USLW 2507 Mark MOREHEAD, Plaintiff, Appellant, v./V, et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Thomas M. Bond, with whom David B. Kaplan and The Kaplan/Bond Group, Boston, were on brief, for appellant.
Kathleen B. Carr, with whom Thomas E. Clinton, Robert E. Collins and Clinton & Muzyka, P.C., Boston, were on brief, for appellees.
Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.
Plaintiff Mark Morehead, a harbor worker injured while working on a construction barge, appeals from a judgment dismissing his negligence action against Atkinson-Kiewit, J/V ("A-K"), a firm that was both his employer and 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 a 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.
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. In particular, we must decide how to assess whether A-K's alleged negligence occurred in its vessel capacity (allowing suit to be brought under section 905(b)) or in its employer capacity (immunizing it from suit). 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 stevedore cases involving a separately owned vessel apply to claims by non-stevedore harbor workers.
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 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 union 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 Pier. Breault threw a heavy line to Morehead, who, in attempting to catch it, stepped backwards into an open hatch which was flush with the deck on one of the barges. The district court noted conflicting testimony as to which barge Morehead was on when injured, 2 but concluded that in any 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 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.
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, 112 S.Ct. 2274, 119 L.Ed.2d 201 (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 lower court did not explain the criteria it applied in deciding what duties of care to attribute, respectively, to A-K in its separate capacities 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, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), and Castorina v. Lykes Bros. S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985). The factual circumstances of these and related cases, however, are too removed from those here to reveal the precise standards and analysis that were 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.
We dispose first of a less troublesome issue. The district court provisionally assumed that the barge on which Morehead was injured was a "vessel" within the LHWCA, although it found no need to decide the matter. 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 has not contested its status as bare boat charterer. Nor has it asserted on appeal any reason to conclude that the HUGHES and CHER were not among the structures included as "vessels" under the LHWCA. See, e.g., Kathriner v. Unisea, Inc., 975 F.2d 657, 662 (9th Cir.1992) (); accord DiGiovanni v. Traylor Bros., 830 F.Supp. 106, 108-109 (D.R.I.1993). The LHWCA definition of "vessel" is more inclusive than that used for evaluating seaman status under the Jones Act. 3 For present purposes, we shall assume without deciding that both barges were vessels under the LHWCA, for the negligence of which a section 905(b) claim may be brought.
The LHWCA establishes a comprehensive federal worker's compensation scheme which holds employers liable, irrespective of fault, for securing the payment of compensation to qualified maritime employees injured in the course of their employment. 33 U.S.C. § 904. 4 This liability of employers is termed "exclusive." Id. § 905(a).
Section 905(b) of the Act authorizes certain covered employees to sue 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 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 attempt to obtain indemnification from the employer, and otherwise 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....
To continue reading
Request your trial
-
Heise v. Fishing Co. of Alaska, Inc.
...& Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-31, 103 S.Ct. 2541, 2547-48, 76 L.Ed.2d 768 (1983); Morehead v. Atkinson-Kiewit, J/V, 75 F.3d 736, 739-41 (1st Cir. 1996) ("The [1984] Amendments did not purport to prohibit LHWCA employees other than in the described categories from suin......