Morehead v. Atkinson-Kiewit, J/V

• Decision Date: 10 October 1996
• Docket Number: No. 94-1581,ATKINSON-KIEWI,J,94-1581
• Citation: 97 F.3d 603
• Parties: , 65 USLW 2252 Mark MOREHEAD, Plaintiff, Appellant, v./V, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 603

97 F.3d 603

1996 A.M.C. 2948, 65 USLW 2252

Mark MOREHEAD, Plaintiff, Appellant, v. ATKINSON-KIEWIT, J/V, et al., Defendants, Appellees.

No. 94-1581.

United States Court of Appeals First Circuit.

Submitted Oct. 1, 1996.

Decided Oct. 10, 1996.

Thomas M. Bond, David B. Kaplan and The Kaplan/Bond Group, Boston, MA, on brief, for plaintiff, appellant.

Thomas E. Clinton, Robert E. Collins and Clinton & Muzyka, P.C., Boston, MA, on brief, for defendants, appellees.

Myles W. McDonough and Sloane and Walsh, Boston, MA, on brief, for amici curiae J.M Cashman, Inc. and Cashman, KPA, A Joint Venture.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, SELYA, CYR, BOUDIN, STAHL and LYNCH, Circuit Judges.

OPINION EN BANC

LEVIN H. 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This appeal comes before the en banc court following our vacating of an unpublished panel decision in this case issued on February 6, 1996, affirming the decision of the district court.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., 75 F.3d 748 (1st Cir.1996). 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.

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

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 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 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.

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, 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 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, 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 circumstances and context of these and related cases, however, are too removed for their mere 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

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, 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

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 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...