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United States Court of Appeals,First Circuit.

Rocco P. DiGIOVANNI, Jr., Plaintiff, Appellant, v. TRAYLOR BROTHERS, INC., Defendant, Appellee.

No. 94-1775.

Decided: February 06, 1996

Before CYR and BOUDIN, Circuit Judges, and KEETON,* District Judge. David B. Kaplan, with whom Thomas M. Bond, The Kaplan/Bond Group, Boston, MA, Paul V. Gallogly and Lovett, Schefrin, Gallogly & Harnett, Ltd, Providence, RI, were on brief, for appellant. Andrew Rothschild, with whom Eric D. Paulsrud and Lewis, Rice & Fingersh, St. Louis, MO, were on brief, for appellee.

Rocco P. DiGiovanni, Jr., appeals from a district court judgment denying his Longshore and Harbor Workers' Compensation Act (“LHWCA”) claim for compensatory damages for injuries sustained while employed by defendant-appellee Traylor Brothers, Inc. (“Traylor”).   For the reasons discussed in this opinion, we vacate the district court judgment and remand for further proceedings.



In 1986, Traylor contracted with the State of Rhode Island to construct a replacement bridge spanning Narragansett Bay from North Kingstown to Jamestown.   Traylor chartered tugboats and nonmotorized barges to build coffer dams for the bridge.1  It hired pile-driving crews, carpenters, mechanics and crane operators to man the barges.   In August 1988, the barge “BETTY F,” whose main deck was fitted with a crane and a ten-ton vibratory pile-driving hammer, was towed by Traylor from Davisville, Rhode Island, to the coffer dam construction site.   During work-hours, Traylor frequently moved the BETTY F to various locations on the Bay where it served as a stationary platform for the crane and the crew performing the pile-driving operations.2  An unnamed supply barge, used to carry metal piles and supplies from Davisville and to house the power source (“powerpack”) for the pile driver, was moored alongside the BETTY F during pile-driving operations.   Traylor routinely assigned two employees as “tag men,” to stand on the supply barge's main deck, grab hold of opposing guide ropes attached to the BETTY F's pile-driving hammer, and steady the hammer as it moved into position over the metal piles readied for driving.

Beginning in mid-to-late September 1988, worn fittings on the pile-driver powerpack began to leak hydraulic fluid onto the metal deck of the supply barge in the area where the tag men normally were stationed.   Crew members tried to stem the fluid leakage from time to time by tying rags around the powerpack housing, and also applied kitty litter and chemical absorbents to the deck surface.   Several crew members aboard the supply barge complained to their foreman and union steward about the hazard, and some complained directly to Traylor's on-site project superintendent.   No repairs were attempted on the powerpack fittings, however, and hydraulic fluid continued to leak onto the supply barge deck.

On September 30, 1988, after he had been assigned by Traylor as a tag man on the supply barge deck, appellant DiGiovanni started across the oil-covered deck to steady the BETTY F's pile-driving hammer with his tag line, slipped on the hydraulic fluid and was dragged across the deck by the guide-line until he collided with the stationary powerpack.

DiGiovanni soon began receiving workers' compensation benefits from Traylor under the LHWCA.   See 33 U.S.C. § 904.   And since Traylor was not only DiGiovanni's employer but also the owner pro hac vice of the BETTY F and the supply barge, see 33 U.S.C. § 902(21) (“vessel” includes its “owner pro hac vice”), DiGiovanni also brought the instant negligence action in federal district court against Traylor in its capacity as vessel owner, demanding compensatory damages pursuant to 33 U.S.C. § 905(b).3  The complaint alleged that Traylor had breached its duty of care because it knew or should have known of the continuing hazard posed by the erratic crane movements, the ongoing hydraulic fluid leakage from the powerpack, and the absence of a non-skid surface on the supply barge's main deck.

The district court entered judgment for Traylor following a three-day bench trial.   See DiGiovanni v. Traylor Bros., Inc., 855 F.Supp. 37 (D.R.I.1994).   Although the court found the hydraulic fluid leak to be “an open and obvious hazard known for some period of time by all those working in the area,” id. at 39-40, it denied recovery as a matter of law because all the instrumentalities of DiGiovanni's injury-the crane, powerpack, and the supply barge deck-were operated or controlled by Traylor solely in its capacity as “employer,” and not in its distinct capacity as “vessel owner.”   The district court explained its rationale as follows:

This legal distinction may seem inequitable in that it allows a vessel owner to be a negligent employer and escape liability except for workers' compensation benefits.   However, this apparent inequity may be quickly dismissed when it is remembered that immunity is the rule while vessel owner liability is the exception․   To merge the two capacities, permitting liability of the employer to be visited upon the vessel owner, would allow the exception to swallow the rule in clear violation of the intent of Congress.

Id. at 40, 42 (citing Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir.1991), cert. denied, 504 U.S. 940, 112 S.Ct. 2274, 119 L.Ed.2d 201 (1992);  Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1032-33 (5th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985)).   Finally, the district court concluded that Traylor had breached none of the narrowly circumscribed duties of care imposed on vessel owners by LHWCA § 905(b).  Id. at 42-43.



The contentions raised on appeal require us to scrutinize the structure, language, legislative history and policy of section 905(b).

A. The LHWCA Remedial Structure

Section 905(b) is relatively straightforward in its application to an injured maritime worker employed by a legal entity distinct from the vessel owner.   For example, vessel owners often contract with independent stevedores to load or offload cargo.   Upon the vessel's arrival in port, the owner normally “turns over” the vessel (or some specified area within the vessel) to the stevedore to perform the delegated task.   A stevedore's employee injured on the job cannot bring a negligence action against the stevedore-employer.   The exclusive remedy available to the stevedore's employees, and one which accrues without regard to whether the stevedore was at fault, is the right to workers' compensation benefits under 33 U.S.C. § 904.   See 33 U.S.C. § 905(a).   On the other hand, a stevedore's employee may sue the vessel owner for damages to compensate for any injury caused by the vessel owner's negligence.   Double recovery is avoided by requiring a prevailing employee to reimburse the stevedore-employer for all LHWCA compensation benefits previously received.  Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 269-70, 99 S.Ct. 2753, 2760-62, 61 L.Ed.2d 521 (1979).

The genesis of the current remedial scheme is best understood by contrasting it with its predecessor:

Until 1972, an injured longshore worker could sue the vessel owner on two distinct legal theories:  negligence and breach of the warranty of “seaworthiness.”  “Unseaworthiness” could be established more easily than negligence, 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.   Vessel owners thus became virtual insurers of the on-board safety of longshore workers.   Although the only legal recourse available to the nonnegligent vessel owner was an indemnification claim against the stevedore-employer, even that remedy was unavailable unless the hazardous condition or appurtenance was due to the stevedore's negligence.

Keller v. United States, 38 F.3d 16, 23 (1st Cir.1994) (citations omitted).   Even in instances where vessel owners received indemnification from negligent stevedore-employers, however, the unwieldy “triangulation” of litigation contemplated under this system nullified the principal advantage that the LHWCA-compensation scheme had been designed to afford negligent maritime employers-assurance that their unconditional obligation to pay preset workers' compensation benefits would protect them from exposure to tort suits by maritime workers.   In order to stem such litigation, Congress amended the LHWCA by barring all indemnification agreements and making the vessel owner liable on no ground other than its own negligence.   Thus, a vessel owner is not liable for the negligence of its stevedore or that of other persons not in the employ of the vessel owner.

B. Duties of Care Owed By “Single Capacity” Employers

The 1972 amendments to the LHWCA preserved a right of action for negligence against the vessel owner, without defining the nature and scope of the duties of care owed by the vessel owner, and the resulting scope of liability.   In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 165-66, 167, 101 S.Ct. 1614, 1620-22, 1622, 68 L.Ed.2d 1 (1981), the Supreme Court held that Congress, by discarding the no-fault “unseaworthiness” claim as a remedy, intended the duties of care owed by a vessel owner under amended section 905(b) to be narrowly circumscribed through reference to the event traditionally known as “turnover”-the vessel owner's surrender of custody or control of the vessel (or a portion thereof) to an independent stevedore.

 Incident to turnover, a vessel owner owes only two narrowly defined duties of care to the stevedore's employee:  a duty of safe condition and a duty to warn.   First, because stevedores generally are presumed to possess greater stevedoring expertise than are vessel owners, under the narrowly defined duty of safe condition “a vessel owner may ‘reasonably’ rely on the stevedore-employer's supervision of its own employees in their interaction with and avoidance of ‘obvious' or ‘anticipated’ hazards foreseeably associated with stevedoring on board the owner's vessel.”   Keller, 38 F.3d at 23.   Second, under its narrowly defined duty to warn, the vessel owner “must alert the stevedore-employer to any latent or concealed defect including ‘any hazards on the ship or with respect to its equipment’ which are ‘known to the vessel [owner] or should be known to it in the exercise of reasonable care’ and which ‘would likely be encountered by the stevedore in the course of his cargo operations[,] are not known by the stevedore[,] and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.’ ”  Id. at 23-24 (quoting Scindia, 451 U.S. at 167, 101 S.Ct. at 1622 (emphasis added)).

 Once the two duties of care incident to “turnover” are met and the vessel or vessel area has been turned over to an independent stevedore, the three continuing duties of care incumbent upon the vessel owner are even more constricted:

First, the vessel owner might remain under [ ] a [continuing] duty were it to retain actual physical control or custody of a portion of the vessel, or participate in stevedoring operations.   Second, a duty to intervene might attach in the event the vessel owner were to acquire actual knowledge that “unsafe conditions” had developed in the vessel's appurtenances since turnover, that the stevedore will not address the unsafe condition, and that the stevedore's decision not to remedy the developing hazard was “obviously improvident” in the circumstances.   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 32 (citations omitted).

C. Law Applicable to “Dual Capacity” Cases

For reasons immediately apparent, the turnover-based dichotomy in Scindia is best suited to circumstances in which the vessel owner and the stevedore-employer are distinct legal entities [hereinafter:  “single capacity” cases].   But where, as here, the vessel owner itself employs longshore workers to perform various tasks on board its own vessel [hereinafter:  “dual capacity” cases], the purport of section 905(b) is decidedly less clear.

 The Supreme Court has held, however, that an injured longshore worker who receives LHWCA compensation benefits is not barred from bringing a negligence action against his vessel-owner employer under section 905(b), notwithstanding the seemingly unqualified provision in section 905(a) that LHWCA compensation benefits are the “exclusive” liability incurred by maritime employers.   See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530, 103 S.Ct. 2541, 2547, 76 L.Ed.2d 768 (1983);  see also supra note 3.   The Court reasoned in Pfeifer that had the Congress intended to impose an outright ban against all “dual capacity” suits there would have been no need to insert the second sentence in section 905(b) limiting the permissible scope of such suits.   See id. (citing 33 U.S.C. § 905(b) (“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.”)) (emphasis added).   Moreover, Congress presumably was aware of the Court's supple pre-1972 interpretation of the so-called “exclusivity” provision in the LHWCA.   See Reed v. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) (holding that an injured employee may maintain an “unseaworthiness” action against vessel owner who was also the injured employee's LHWCA “employer”).   Yet far from repudiating Reed, relevant legislative history confirms a congressional intendment “that the rights of an injured longshoreman ․ should not depend on whether he was employed directly by the vessel or by an independent contractor.”  Pfeifer, 462 U.S. at 531-32, 103 S.Ct. at 2548 (quoting H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 7-8, reprinted in 1972 U.S.C.C.A.N. 4698, 4705).4  Nonetheless, and without elaboration, the Court appended the following footnote to its holding in Pfeifer:  “Of course, § [905(b) ] does make 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’ capacity.”  Id. at 531 n. 6, 103 S.Ct. at 2547 n. 6 (emphasis added).   Thus, the seed planted in footnote 6 germinated the controversy presently before us:  when an injured longshore worker sues, may a “dual capacity” employer escape liability by contending that any negligence on its part is traceable exclusively to its “stevedore-employer” role, and that Scindia therefore entitles it, qua “vessel owner,” to don its fictional alter ego mantle as stevedore-employer?   Two other courts of appeals have adopted divergent views.

Like the district court in this case, the Fifth Circuit considers this legal fiction central to the integrity of the LHWCA as a prototypical workers' compensation statute.   See Levene, 943 F.2d at 531 (citing Castorina, 758 F.2d at 1032-33 (noting that, because legislative history contemplates that all maritime employees receive the “same” remedy, “[w]e can find no reason to impose on a shipowner a greater duty of care toward longshoremen because the shipowner conducts its own stevedoring operations”)).   In other words, a contrary construction of section 905(b) would deprive “dual capacity” employers of the anticipated return for their presumed quid pro quo;  that is to say, the burden of contributing to the section 904 workers' compensation scheme would no longer be balanced by the broad “exclusivity” protection supposedly afforded by section 905(a).

On the other hand, the Second Circuit has noted that shoehorning “dual capacity” employers into the traditional Scindia mold creates serious anomalies and artificialities not present in “single capacity” cases.   See, e.g., Fanetti v. Hellenic Lines, Ltd., 678 F.2d 424, 428 (2d Cir.1982) ( “ ‘[A] [jury] charge which relieves a shipowner of liability for a dangerous condition which was “known to the stevedore or to any of its employees” is clearly inappropriate where the shipowner, itself, is the stevedore.’ ”) (citing Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 508 (2d Cir.1976)), cert. denied, 463 U.S. 1206, 103 S.Ct. 3535, 77 L.Ed.2d 1387 (1983).   For example, as was observed in Fanetti:

Where ․ there is no independent contractor, it is part of the ship's duty to exercise reasonable care to inspect its own workers' workplace, to remove grease spills, etc.   In such a case there is no “independent contractor” with primary responsibility upon whom the ship may properly rely․   Things are very different when the longshoreman works for an independent stevedore who has primary responsibility for the workplace.

Id. (quoting Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 689-90 (2d Cir.) (Friendly, J., dissenting, in part), cert. denied, 439 U.S. 929, 99 S.Ct. 316, 58 L.Ed.2d 322 (1978)) (emphasis added).5

D. Standard of Review

DiGiovanni contends that the district court erred as a matter of law in applying the bifurcated duties of care endorsed in Levene and Castorina to an entity like Traylor.6  While a single entity arguably might “turn over” custody and control of a vessel to its alter ego, qua stevedore (i.e., as an onloader or offloader of cargo), the very nature of Traylor's construction operations aboard the BETTY F and the supply barge demonstrates unmistakably that a vessel owner contractually obligated to use its own vessel to perform a maritime construction project can never relinquish control or custody of the vessel.7

E. The Statute and its Legislative History

Normally, the task of interpretation must begin with the statutory language.   See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 1575-76, 108 L.Ed.2d 842 (1990).   However, since section 905(b) merely creates a right of action in negligence against vessel owners, without defining the duties of care incumbent upon either “single capacity” or “dual capacity” vessel owners, we turn to relevant legislative history for guidance.   See Cabral v. I.N.S., 15 F.3d 193, 194 (1st Cir.1994) (where statute is silent or ambiguous, legislative history may be consulted).

As it turns out, Congress intentionally left a substantive gap in section 905(b), expecting the courts to define the precise nature and scope of a vessel owner's duties of care thereunder.   See Scindia, 451 U.S. at 165-66, 167, 101 S.Ct. at 1620-22, 1622 (“Section 905(b) did not specify the acts or omissions of the vessel that would constitute negligence․   Much was left to be resolved through the ‘application of accepted principles of tort law and the ordinary process of litigation.’ ”  (quoting H.R.Rep. 92-1441)).   The remaining legislative history contains a statement that the “same principles should apply in determining the liability of the vessel” in both “single capacity” and “dual capacity” cases.   H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 7-8, reprinted in 1972 U.S.C.C.A.N. 4698, 4705 (emphasis added).   We examine this general statement in some detail.

Most importantly, this legislative history lends no support to the statutory interpretation proposed by Traylor.   Insofar as the quoted statement might be thought to particularize the appropriate duties of care, it would conflict directly with the preference previously expressed in the same House Report, see supra, that interstitial interpretations be left to the courts.  Scindia, 451 U.S. at 165-66, 167, 101 S.Ct. at 1620-22, 1622.   Further, viewed in context, see supra note 4, this House Report language appears immediately after a discussion of Congress' intention to abrogate the Reed and Jackson holdings, which held that “dual capacity” employers were as vulnerable to “unseaworthiness” claims under the pre-1972 LHWCA as were non-employer vessel owners.   Thus, even viewed in the light most favorable to Traylor, we think the House Report reference to “same principles” is most likely a simple caution that henceforth, by dint of the 1972 amendments, both “single capacity” and “dual capacity” cases are subject to the same negligence liability principles, not to the heightened standards of care governing “unseaworthiness” claims-a differential that would otherwise have afforded employees in “dual capacity” cases a decided advantage in litigation.   See, e.g., Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892 (1879) (“No statute is to be construed as altering the common law further than its words import.”);   but cf. also infra p. 24 (noting that the traditional imputation-of knowledge and “control” approaches in tort law are more faithful to legislative history since they apply the “same [Scindia] principles” to both single and dual capacity employers).

 Under either Fanetti or Levene, moreover, both “single” and “dual” capacity vessel owners are subject to the “same” standards of care;  the differences are purely circumstantial.   As a general rule, the notice or knowledge-as well as the foreseeability-attributable to a “dual capacity” employer will be greater simply because a vessel owner which hires its own longshore or harbor workers does not in fact “turn over” its vessel to a separate entity.   Rather the “dual capacity” employer remains in control-at the least to some extent (both in time and space)-and often in complete control of the entire vessel and its appurtenances throughout the relevant time period.   Thus, the fuller range of knowledge and foreseeability normally accompanying constant and total control represents a compelling reason-consistent with general tort principles, see, e.g., Illinois Constructors Corp. v. Logan Transp., Inc., 715 F.Supp. 872, 882 n. 22 (N.D.Ill.1989) (agent's knowledge is imputable to principal, exposing principal to direct liability in tort);  Allen v. Prudential Property & Cas. Ins. Co., 839 P.2d 798, 806 (Utah 1992) (same);  People v. American Medical Ctrs. of Michigan, Ltd., 118 Mich.App. 135, 324 N.W.2d 782, 783 (1981) (same), cert. denied, 464 U.S. 1009, 104 S.Ct. 529, 78 L.Ed.2d 711 (1983)-for broad accountability in tort on the part of the “dual capacity” employer.

Finally, other categorical language in the House Report cuts deeply into Traylor's contention:  “nothing in the [LHWCA] is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.”   H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 6, reprinted in 1972 U.S.C.C.A.N. 4698, 4704 (emphasis added).  “So, for example, where the longshoreman slips on an oil spill on a vessel's deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence.   To recover, he must establish that:  (1) the vessel put a foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it;  or (2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care under the circumstances.”  Id. (emphasis added).

F. The Controlling Judicial Precedent

Absent conclusive evidence of specific congressional intent in the statute itself or its legislative history, we consult more recent case law with a view to whether, at Congress' invitation, see supra Section II.E, the question before us has been resolved through the “application of accepted principles of tort law and the ordinary process of litigation.”   H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 6, reprinted in 1972 U.S.C.C.A.N. at 4704.   As we have noted, Scindia discussed duties of care only in the context of negligence claims against a “single capacity” vessel owner.   Footnote 6 in Pfeifer, on the other hand, is unelucidated dictum.   Of course, great deference is accorded considered Supreme Court dicta.   See, e.g., Bank of New England Old Colony, N.A. v. Clark, 986 F.2d 600, 603 (1st Cir.1993).   Yet there is no exegetic discussion of this issue, the LHWCA's legislative history, or supportive Supreme Court precedent,8 either in footnote 6 or elsewhere in the Pfeifer opinion.   Thus, footnote 6 ultimately leaves open the question with which we are presented, as does the House Report's reference to “same principles,” since under both the Castorina and the Fanetti models, a “dual capacity” employer is held liable in its “vessel owner” capacity only.   Absent controlling precedent, we turn to traditional tools of statutory interpretation.

G. Traditional Tools of Statutory Interpretation

Confronted with a measure of congressional reticence, but also with the explicit legislative directive that the courts shape the legal duties applicable in both single and dual capacity cases based on the “same [tort] principles,” we next examine the policies evident in the statute as a whole.   See Thinking Machs. Corp. v. Mellon Fin. Servs. Corp., 67 F.3d 1021, 1024 (1st Cir.1995).   Ultimately, we are persuaded that it would contravene congressional policy to invoke the legal fiction that Traylor (qua vessel owner) was acting solely in its “stevedore-employer” capacity when it hired and directed the work of its employees on the oil-slickened deck of its supply barge.

 This conclusion likewise appears warranted from an independent perspective;  that is to say, the one presumptive principle of statutory interpretation that unquestionably does apply:  the LHWCA “must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.”  Reed, 373 U.S. at 415, 83 S.Ct. at 1353 (emphasis added).   See Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 92, 98 L.Ed. 5 (1953);  see also Hogar Agua y Vida en el Desierto v. Suarez-Medina, 36 F.3d 177, 181 (1st Cir.1994) (remedial statutes are to be broadly construed).9  Consistent with this instruction, unless Traylor is able to demonstrate a legislative purpose behind the LHWCA that is either fostered by the Castorina rule or disserved by Fanetti, the benefit of the doubt belongs to DiGiovanni.

The main difficulty with the decision below relates to its assumption that the Fanetti interpretation would “allow the exception [of vessel-owner liability] to swallow the rule [of employer immunity] in clear violation of the intent of Congress.”  DiGiovanni, 855 F.Supp. at 42 (emphasis added).   The district court opinion stressed this point with its citation to the “exclusivity” provision in the Rhode Island Workers' Compensation Statute.   See R.I.Gen.Laws § 28-29-20 (1994).   We believe the assumption is mistaken.

First, because “single capacity” employers would still retain all their section 905(a) protections, the Fanetti approach-though it significantly limits LHWCA immunity-in no sense “swallows,” eviscerates, or renders superfluous the LHWCA immunity available to “single capacity” employers.   Nor is there affirmative evidence, either in the statute or its legislative history, that Congress ever envisioned a perfect parallelism.

Second, Pfeifer demonstrates that the supposedly unlimited “exclusivity” provision in section 905(a) is much more flexible than the land-based workers' compensation statutes enacted in most states, which in comparable contexts would not permit an injured worker even to bring a negligence suit against the employer as the owner of the property on which the worker was injured.   See generally 2A Arthur Larson, Workmen's Compensation Law § 72.82, at 14-234 (1983).10  Thus, we think it is quite clear that Congress did not envision section 905 as an exact analog to state workers' compensation schemes.   See H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 6, reprinted in 1972 U.S.C.C.A.N. 4698, 4704 (emphasis added);  supra Section II.E.

Third, Traylor suggests that it would be unreasonable to suppose that Congress intended to burden “dual capacity” employers under the LHWCA with mandatory contributions to the section 904 workers' compensation scheme, without a corresponding benefit.   Relying on the same inapposite analogy to state workers' compensation statutes, Traylor argues that a total release from all tort liability for employee injuries is the essential quid pro quo for subjecting LHWCA employers to the section 904 workers' compensation scheme.

We acknowledge, of course, that “dual capacity” employers would not gain as much benefit under the LHWCA as would “single capacity” employers.   But Traylor's contention begs the question:  whether Congress intended that result.   The statute books are chockablock with remedial provisions imposing burdens on various types of entities which are accorded no corresponding benefit.   Moreover, the significantly distinct circumstances encountered by “single capacity” and “dual capacity” employers-particularly the widely divergent degree to which each type employer retains effective control over its vessel-would seem a highly plausible explanation for Congress' decision to leave interstitial decisionmaking to the courts rather than define the precise nature and scope of these vessel owners' duties of care.   See supra Section II.E.

For instance, the Scindia paradigm recognizes that a “single capacity” vessel owner is subject to comparatively relaxed duties of care because it forfeits virtually all control over ensuing events once it turns its vessel over to another legal entity (and that entity's employees) in relation to which the vessel owner enjoys no presumptive right of control absent specific contractual arrangements to the contrary.   Even then, however, a “single capacity” vessel owner must shoulder continuing duties to intervene as necessary to correct hazardous conditions in any part of the vessel remaining within its control, as well as when it acquires actual knowledge of a developing hazard posed by the vessel's appurtenances (e.g., the supply barge's leaking power-pack), and knows that the independent stevedore's failure to remedy the hazard is plainly improvident.   See Keller, 38 F.3d at 32;  cf. also Melanson v. Caribou Reefers, Ltd., 667 F.2d 213, 214 (1st Cir.1981) (noting that Scindia's “obviously improvident” standard of care generally pertains only to hazards developing in vessel's gear, rather than to nonappurtenances, like cargo).

 On the other hand, what can it matter whether a “dual capacity” vessel owner knows, as it surely does, that its decision-qua independent stevedore-not to eliminate a known hazard, is or is not improvident?   After all, a vessel can exercise control, and acquire knowledge, only through its owner and crew, 33 U.S.C. § 902(21) (“vessel” includes “agents” and “crew members”), and in “single capacity” cases the control exercised and the knowledge acquired by these agents normally is imputed to the vessel.   In the instant case, since Traylor is deemed to have been wearing the hats of both its fictional personae, through its control of all actors aboard its vessel, the Scindia distinctions devolve at best into a metaphysical exercise, and at worst into a strong inducement to “dual capacity” vessel owners to turn a blind eye to hazardous work conditions within their exclusive control.   See Fanetti, 678 F.2d at 428.   Thus, we believe it would carry the “dual capacity” fiction much too far from its Scindia context to extend it to the present setting, because it runs directly counter to the clear statement of congressional intent in the LHWCA legislative history;  viz., that the “same principles [i.e., the Scindia duties of care] should apply in determining the liability of the vessel” in both “single capacity” and “dual capacity” cases.   See H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 7-8, reprinted in 1972 U.S.C.C.A.N. 4698, 4705 (emphasis added).

The Traylor apology for the “dual capacity” fiction undoubtedly would be somewhat more compelling were there a discernible temporal demarcation for the differing roles incumbent upon its alter egos, such as the determinative one-time “turnover” in a “single capacity” case that results in a clearly distinguishable realignment of responsibilities in keeping with the accompanying change in control.   Given the nature of the Jamestown Bridge Project, however, Traylor was required to use the BETTY F and the supply barge, alternately, as a means of transporting the crane, its operating employees and supplies to the designated work sites on Narragansett Bay and as an instrumentality for constructing the coffer dams.   Sometimes, in fact, it appears that these discrete operating modes either merged, or alternated with such frequency, that it could not be ascertained with any confidence, even on the date of the accident, whether Traylor's supply barge crew or its construction team “alter ego” had custody and control of the deck of the supply barge.   Cf. Masinter v. Tenneco Oil Co., Inc., 867 F.2d 892 (5th Cir.1989) (noting that “the present case does not involve a vessel owner ‘turning over’ the control of a vessel to a stevedore or independent contractor.   Rather, [the vessel owner] was contractually bound to conduct the drilling operations and remained in control of the vessel to effectuate this obligation.”).11

Unlike their “single capacity” counterparts, moreover, “dual capacity” vessel owners presumably derive economic benefit as a result of their decision to act in a dual capacity.   In fact, this benefit itself may well constitute an adequate counterbalance to whatever “heightened” duty of care may attend their decision.

A shipowner is, of course, at liberty to refrain from hiring an independent stevedoring contractor.   Presumably it does so to save money.   However, that saving is accomplished at the cost of not having an independent expert on board.   As myriad cases in this field demonstrate, the presence of the expert independent stevedoring contractor furnishes the shipowner with significant protection, in the form of insulation from liability for its own acts which would otherwise attach.   But the shipowner cannot save the premium and still claim the protection.

Fanetti, 678 F.2d at 428 (emphasis added).   Indeed, permitting the dual-capacity employer to compartmentalize its “knowledge” between its two artificial personae in these circumstances would undercut the primary LHWCA policy goal identified in Scindia;  that is, there would be no economic incentive for shipowner-employers to hire independent stevedoring companies, which generally possess greater expertise in conducting longshoring activities with maximum levels of worker safety.   Such an artificial rule inevitably would increase the hazardous working conditions encountered by longshore and harbor workers, and undermine the spirit of the LHWCA.

Contrary to Traylor's contention, and notwithstanding whatever else may be said, “dual capacity” employers obtained an important benefit from the 1972 amendments in return for the burden assumed pursuant to the section 904 workers' compensation scheme:  “dual capacity” employers are no longer subject to the far more onerous strict liability claims for breach of the warranty of seaworthiness, but only to tort liability based on their failure to exercise reasonable care to avoid or correct reasonably foreseeable hazards.   We discern no overriding legislative policy behind the 1972 amendments which would entitle these employers to the benefit of any and all doubt in construing the “exclusivity” provisions.   On the contrary, the legislative history plainly discloses that Congress meant to eliminate the wasteful litigation burdening the courts under the pre-1972 LHWCA;  viz., the “triangulation” in litigation caused by the confluence of a longshore worker's strict liability claim for “unseaworthiness” against the vessel owner and the vessel owner's claim for indemnification from a negligent stevedore-employer.   See supra Section II.A.



 We hold that the unreasonably hazardous condition aboard the supply barge had persisted for an extended period of time preceding DiGiovanni's injury, during which time various Traylor employees acquired actual knowledge of the developing hazard and their employer's failure to “intervene” to correct the hazardous condition.   Thus, a genuine and material issue was presented for the factfinder, as to whether Traylor's failure to intervene breached its continuing duties of care under Scindia.   We note, further, that the factfinder implicitly found the failure to intervene to remedy the oil leak “obviously improvident,” given the utter absence of any reasonable explanation for allowing the hazardous condition to go unremedied for the extended period preceding the accident.12

The parties agree that there is no clear error in the district court finding that Traylor was negligent in its stevedore-employer capacity, and that remand is required for the calculation of compensatory damages in the event we reject the legal conclusion that the “constructive knowledge” imputable to a “dual capacity” employer is subject to the limitation adopted in Castorina.   Since we reject Traylor's conclusion, as both unsound and inapposite to the particular circumstances in this case, we vacate the district court judgment and remand for further proceedings.

The district court judgment is vacated and the case is remanded for further proceedings consistent with this opinion.   Costs to appellant.

The panel majority has written a thorough and powerful opinion in a difficult matter.   Yet, while recognizing the case to be close, I believe that the district court reached the correct result, for reasons that are substantially those set forth in Morehead v. Atkinson-Kiewit J.V., No. 94-1581, 75 F.3d 736, 1st Cir., argued March 2, 1995, and decided this day.


1.   Coffer dams are metal forms imbedded in the bay floor with metal piles, pumped empty of seawater, and filled with concrete to form the foundation for bridge supports.

2.   The BETTY F was not returned to Davisville at night.   Instead, it was towed and moored a short distance from the coffer dams to avoid collision.   A crew ship transported the BETTY F's crew between the vessel and Davisville each workday.

3.   LHWCA § 905 provides, in pertinent part:(a) Employer liability;  the failure of the employer to secure payment of compensation.   The liability of the employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee․(b) Negligence of vessel.   In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person ․ may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act, 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 on the warranty of seaworthiness or a breach thereof at the time the injury occurred.   The remedy provided in this section shall be exclusive of all other remedies against the vessel except remedies available under this Act.33 U.S.C. § 905(a)-(b) (emphasis added).   No longer material to the present discussion, DiGiovanni's Jones Act and general maritime claims were resolved in DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir.) (en banc), cert. denied, 506 U.S. 827, 113 S.Ct. 87, 121 L.Ed.2d 50 (1992).

4.   The full excerpt states:The Committee has also recognized the need for special provisions to deal with a case where a longshoreman or ship builder or repairman is employed directly by the vessel.   In such case, notwithstanding the fact that the vessel is the employer, the Supreme Court, in Reed v. S.S. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963), and Jackson v. Lykes Bros. Steamship Co., 386 U.S. [731, 87 S.Ct. 1419, 18 L.Ed.2d 488] (1967), held that the unseaworthiness remedy is available to the injured employee.   The Committee believes that the rights of an injured longshoreman or ship builder or repairman should not depend on whether he is employed directly by the vessel or by an independent contractor.   Accordingly, the bill provides in the case of a longshoreman who is employed directly by the vessel there will be no action for damages if the injury was caused by the negligence of persons engaged in performing longshoring services.   Similar provisions are applicable to shipbuilding or repair employees employed directly by the vessel.   The Committee's intent is that the same principles should apply in determining liability of the vessel which employs its own longshoremen or ship builders or repairmen as apply when an independent contractor employs such persons.H.R.Rep. No. 92-1441, 92d Cong., 2nd Sess. 7-8, reprinted in 1972 U.S.C.C.A.N. at 4705 (emphasis added).

5.   Although Fanetti preceded, whereas the Fifth Circuit decision came after, Pfeifer, there is no indication that the Second Circuit has altered its position.   Thus, there presently exists a circuit split.

6.   The duty of care owed by a vessel owner under § 905(b) presents a pure question of law, subject to plenary review.   See Keller, 38 F.3d at 23.

7.   In the alternative, DiGiovanni argues that the implicit factual finding by the district court that a “turnover” occurred, as between the Traylor alter egos, is clearly erroneous, and if a “turnover” did occur, the factual finding that Traylor, qua vessel owner, did not breach its Scindia duties of care is clearly erroneous as well.   Since we accept DiGiovanni's threshold legal contention, we need not reach these alternative arguments.

8.   Longshoreman Pfeifer slipped and fell while on board a barge owned by his employer, which had “negligently failed to remove [ice] from the gunnels.”  Pfeifer, 462 U.S. at 526, 103 S.Ct. at 2545.   The district court entered judgment for Pfeifer and the court of appeals affirmed.   The only liability-related issue before the Supreme Court was whether § 905(a) barred Pfeifer's suit outright.   The parties never raised the question whether the district court had erred by attributing the negligence to the defendant in its capacity as “employer.”

9.   This interpretive rule generally is used to bring injured maritime workers within the workers' compensation scheme when the terms of § 904 are ambiguous.   Insofar as maritime workers are deprived of other common law remedies under § 905(a), a liberal interpretation will not always be synonymous with “favorable” in fact.   In Reed and Jackson, see supra note 4, however, the Court made clear that this interpretive principle may be used to expand a covered worker's adjunct remedies under the LHWCA, above and beyond the remedy directly provided in § 904.   The legislative history of the 1972 LHWCA amendments appropriately questions Reed, but only with respect to the continued availability of the “unseaworthiness” remedy previously afforded against “dual-capacity” employers, see supra note 4, leaving undisturbed Reed 's pro-employee interpretive presumption in the face of other unresolvable statutory ambiguities.

10.   Many states do recognize a “dual capacity” doctrine, in circumstances inapposite here, where the employer acts in a non-landowner capacity.   For example, a worker injured by a product manufactured by its employer would not be barred from bringing a product liability claim for breach of its duty to the consuming public, to make a reasonably safe product.   See, e.g., Schump v. Firestone Tire & Rubber Co., 44 Ohio St.3d 148, 541 N.E.2d 1040, 1042-43 (1989).

11.   We recognize that Masinter is distinguishable from Levene and Castorina because the vessel owner was not Masinter's employer;  hence was not protected by the § 905(a) immunity provision.   The Masinter reasoning nonetheless raises a legitimate question as to whether the Fifth Circuit would extend Castorina to a “dual capacity” employer in the circumstances presented here.

12.   No doubt the circumstances in this case set it apart from many.   Unlike the comparatively stationary BETTY F, at night between workdays Traylor often towed the unnamed supply barge-on which DiGiovanni was working when he was injured-to Davisville.   The alleged negligence on the part of one or more crew members of the supply barge lay in the failure to take corrective action to arrest the developing hazardous condition (i.e., the month-long hydraulic fluid leakage from the powerpack onto the supply barge deck) long after it had become apparent that Traylor's stevedoring employees had not corrected, and foreseeably would not correct, the hazardous condition absent action on the part of the vessel (the supply barge).   Since the supply barge had been moving regularly in navigable waters, between workdays, to and from Davisville and the BETTY F, which was moored at the work site, the supply barge was under tow in navigable water.From time to time while the supply barge was still under way and not yet moored either at Davisville or adjacent to the BETTY F, a Traylor employee would be the only person on board the supply barge.   Thus, either the supply barge was crewless while still under way, or it was under way in navigable waters with no crew other than Traylor employees.   Each time a Traylor employee was on board the supply barge in these circumstances, that Traylor employee had an opportunity to observe the ongoing and worsening hazard of the oil-covered deck near the powerpack.   Any negligence of a Traylor employee in these precise circumstances, when no other person was aboard the supply barge and it was under way, plainly constituted negligence of the vessel (the supply barge).As in the physical universe, nature abhors a vacuum, so in the somewhat metaphysical legal universe admiralty loathes the notion of a vessel under way with no crew.   During the time the supply barge was under way with no person aboard other than a Traylor employee, that employee, at least, was a crew member of the supply barge.   Even assuming the crew members of the BETTY F can be conceptualized as the crew of the supply barge while it was under tow with no person aboard, when it became necessary to have a person aboard to perform functions necessary to casting off or docking, that person necessarily was a member of the crew of the vessel (supply barge).   To hold otherwise would be to depart not only from a core admiralty concept, but also from the rationale of the Supreme Court in Scindia, see 451 U.S. at 172-79, 101 S.Ct. at 1624-28, and the rationale of this circuit in Keller, 38 F.3d at 22-33.   Thus, during such discrete intervals at least, the supply barge was, in fact, within the exclusive and “active control” of the vessel owner.  Morehead v. Atkinson-Kiewit, 75 F.3d 736, 745-46 (1st Cir.1996) (“The vessel, or the employer in its vessel capacity, is not implicated except in the unusual circumstance that the vessel itself continues to exercise active control over the work area.”).

CYR, Circuit Judge.

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