Mark Morehead v. Atkinson-Kiewit, J/V

policy argument sup- An rule, additional We therefore think the better jury particularly ports upholding light instruction be of FELA’s broad remedi purposes, found the Restatement’s discussion of the al is that if the factfinder cannot question separate injuries related of who has the burden as to by caused or exacerbated apportionment damages ap- of when such an the accident from resulting those pre from a portionment possible:10 condition, existing is the defendant is liable for injuries.12 all such exceptional plac-

The reason for the rule ing proof apportion- the burden of as to Affirmed. upon

ment the defendant or defendants is injustice allowing proved wrong- escape liability_

doer ... In such a may justly required

case the defendant producing

to assume the burden of

evidence, so, ifor he is not able to do

bearing responsibility. the full 433B(2) MOREHEAD, d, Plaintiff, Appellant, Mark Id. cmt. at 444.11 The com- concludes, ment proved “As between clearly tortfeasor who has caused some ATKINSON-KIEWIT, J/V, al., et harm, entirely plaintiff, any innocent Defendants, Appellees. hardship ... should fall the former.” Id. No. 94-1581. primary policy argument against shift- United States Appeals, Court of

ing proving apportionment the burden of First Circuit. plaintiff defendant is that is in the better 1, Submitted Oct. position prove 1996. portion injuries what of his was caused the accident. LaMoureaux v. 10, Decided Oct. 1996. Inc., Express, Totem Ocean Trailer 632 P.2d (Alaska 539, 1981). However, given dis-

covery of medical availability records and the plaintiff by

of medical examinations of defen- doctor,

dant’s Fed.R.Civ.P. it is not unfair place on defendant that burden and the

consequences meeting of not it. by multiple tortfeasors entirety damages, has been drawn sever- ble for the whether or not See, e.g., Lovely negligence damages al courts. v. Allstate Ins. caused those in whole or (Me.1995). part,” A.2d implicit comparative because negligence principle scheme is the that defendant liable to the extent that its trial, jury

10.At defendant asked for a instruction harm, causes employee’s whether the other causes are the indicating plaintiff's injuries that if the causes of pre-existing own or a separable, plaintiff proof were had the burden of condition). health on the extent to which the accident caused the aggravation pre-existing condition. Be- placing apportion- 11. The rule the burden as to cause case involves an instruction on indivis- adopted by ment on the defendant has also been injuries, question ible we need not decide the interpreting at least one court a similar federal aggravation pre- who bears the burden as of a States, statute. Maurer v. United existing damages separa- condition when the are (2d Cir.1981) (Public Act). Vessels However, ble. to the extent that the Railroad is contending plaintiff bears the entire burden proving damages, argument we note that this Passenger Corp., Varhol v. National R.R. scheme, statutory (7th undercut Cir.1990) (upholding comparative negligence makes interrogatories an affirmative de- asking jury use of "to determine R.R., fense. But Dale v. Baltimore & O. portion [plaintiff's] what ... condition result- cf. (1989) (in [accident], and, Pa. 552 A.2d FELA ed from the it could determine if case, jury portion, it was error to instruct that "if it found to take it into account in determin- negligent, added)). responsi- ing damages" (emphasis railroad the railroad was Bond, Kaplan and

Thomas M. David B. Boston, MA, Group, on Kaplan/Bond brief, plaintiff, appellant. Clinton, E. Robert E. Collins

Thomas P.C., Boston, MA, Muzyka, on & Clinton brief, defendants, appellees. Myles McDonough and Sloane and W. Boston, MA, brief, Walsh, amici curiae on KPA, Cashman, Cashman, A Inc. and J.M Joint Venture. TORRUELLA, Judge,

Before Chief CAMPBELL, SELYA, Judge, Senior Circuit LYNCH, CYR, BOUDIN, STAHL Judges. Circuit EN BANC OPINION CAMPBELL, LEVIN H. Senior Circuit Judge. the en banc appeal

This comes before unpub- following vacating of an court our panel in this case issued lished decision 6, 1996, February affirming the decision of day panel the district court. On opinion, panel of brought by another this court handed tions longshore construing down a decision the federal stat third-party vessel owned apply to claims underlying appeals materially ute both non-stevedoring contractor harbor work- DiGiovanni, way. P. brought different Rocco Jr. v. ers vessel owned Bros., (1st Inc., Traylor 75 F.3d 748 employer. Cir. own 1996). opinions grant We vacated both Background 1. rehearing provide ed en banc so as to a pending, consistent rule in this circuit at Mark employed by A-K, Morehead was least, further Supreme instruction* from the joint Guy venture formed between Atkinson Congress. Court or Co. and complete Kiewit Eastern to the con- struction of Bridge the Jamestown spanning Morehead, Plaintiff Mark a harbor worker Narragansett Bay in Rhode Island. In order injured working while on a construction transport equipment materials and around barge, appeals judgment from a of the dis- bay sites, to the work A-K bare boat dismissing trict court his action barges. chartered several barges The in- Atkinson-Kiewit, against (“A-K”), firma J/V case, volved in this the CHER 106 and the that was both his and the charterer HUGHES flat barges were deck barge. brought Morehead this action —float- ing platforms bare of equip- structures or 905(b) under section Longshore ment. A-K also tugs leased two from Woods Compensation Harbor Workers’ Act Towing Hole Co. to transport barges (LHWCA), seq., U.S.C. et authoriz- tugs where needed. The themselves were ing employees covered to sue the vessel as a employees.1 crewed Woods Hole party third negli- gence capacity of the vessel. In its as More- A-K carpenters hired from a local union to employer, head’s A-K is immune from tort bridge. build the responsibilities Their in- brought by actions covered like cutting cluded setting timbers and steel and Morehead. But as the bare boat charterer of up pours. concrete forms for As the local barge injured, on which Morehead was requirements prevented union’s tug cap- A-K is statutory deemed also to be the ves- tain or handling crew from the lines on the owner; sel capacity it was this that A- barges, carpenters some also tended the lines K was sued. barges on the as “scowmen.” Morehead’s regular carpentry duties included both The case questions raises difficult of first linehandling. impression in this circuit as to the capacity employer 29,1990, so-called dual January under the On Morehead and anoth- LHWCA. We must decide whether carpenter/scowman, Breault, A-K’s er Steven were alleged negligence “employer” occurred untying the HUGHES 707 irom the CHER (a suit), capacity immune from 106. A barge surveyed was to be in connec- (a rather negli- as going “vessel” tion with tug her off hire. A stood gence being action nearby. authorized under section barges The were not at this time 905(b) against a third-party). carrying vessel as equipment, materials or but rather While the Court has endorsed the were set off on the north side of the Davis- bringing of section actions heavy ville Pier. Breault threw a line to against Morehead, who, a dual it, defendant in its attempting to catch capacity, yet define, stepped Court has open backwards into an hatch which case, in such a point which barges. was flush with the deck on one of the responsibility responsibility ends and vessel The district conflicting testimony court noted begins. Nor has the Court decided to what barge as to which Morehead was on when principles extent in negligence injured,2 event, laid down ac- but concluded that in Although originally Consequently, Woods Hole was named as that decision. Woods Hole is no action, longer party. a defendant the district court granted summary judgment its motion for definitively 2. The district court did not find Morehead, appealed who has not barge Morehead was on at the time of the (1992). However, question L.Ed.2d 201 insufficiently obvious. open hatch was single applied the court the district of whether opened that he testified Breault law, subject is one of of care (which proper standard he named on the HUGHES hatch See, e.g., Keller appellate novo review. to de days surveyed) a few before barge to be (1st States, 22-23 Cir. v. United accident, preparing A-K was because 1994); Corp., 967 Elberg v. Mobil Oil barge survey returning before an off-hire (7th Cir.1992). super- Breault testified to the owner. open him to had told carpenter visor explain the crite did not district court hatch. care deciding what duties of applied in ria it capacities, separate in its to attribute to A-K complaint A-K filed a Morehead as, employer and respectively, 22, 1991, alleging April Hole on Woods Rather, (charterer) it barge. unseaworthiness, negligence, Act Jones exist along with its conclusions simply cited cure, negligence under maintenance 905(b) liabil to section ing precedent relative 905(b) Following of the LHWCA. section Navigation Co. v. De ity, e.g., Scindia Steam summary for A-K’s denial of motion 1614, Santos, 156, 101 S.Ct. Los voluntarily all withdrew judgment, Morehead (1981), Lykes v. and Castorina L.Ed.2d negligence under except his claim for claims (5th Cir.), S.S., cert. Bros. 758 F.2d on A trial commenced LHWCA. bench denied, 29, 1994, the dis- April April 1994. On (1985). The L.Ed.2d 113 circumstances Findings and Order court issued its trict however, cases, of these related context complaint and A-K’s dismissing Morehead’s citation to for their mere are too removed It wrote: Hole. Woods cross-claim analysis that the district court reveal negligence not find it court does [T]he language in this Nor does applied case. pro hac [appellee] viewed its guidance. We provide clear of the LHWCA Rather, appears be owner. vice will only hope can solely by it temporary condition created applicable eventually the standards elucidate These two capacity as charterer.... employers of harbor status workers to dual legally separate, even capacities are comparable to these. Until in circumstances though they the same individual. be then, legal our best to outline the we do distinguishes be- passage confusingly This that, believe, govern facts principles we pro hac vice and a bare boat an owner tween principles— those presented here. Under (the includes both statute charterer to the district giving due deference “vessel,” see U.S.C. definition affirm authority as fact finder —we court’s 902(21)). agree that the dis- parties '§ The judgment below. distinguish actually be- court meant trict employ- appellee as vessel and tween III. “Vessel” Status interpret the district court’s We also er. briefly a less We discuss first troublesome in that fashion. order provisionally as- court issue. The district 4,May 1994 in Judgment on was entered barge sumed, deciding, that on without appeal This followed. A-K’s favor. injured a “vessel” was which Morehead was 905(b) permits within the LHWCA. Section II. Standard Review negligence employee to sue in an LHWCA findings injury ... only court’s fact-based caused “[i]n A district the event 902(21) of a vessel.” Section negligence are reviewable relative See, En “vessel” to include e.g., v. Pintail of the LHWCA defines error. Levene clear (5th Cir.1991), among parties ters., charterer bare boat 943 F.2d 535-36 905(b). A- 2274, 119 denied, 940, 112 may held under section liable cert. opening deck is a likely" on an otherwise solid inch court "more The found accident. expect- reasonably proffer safe to one failure of a 707 and Breault was on the HUGHES Morehead would walk The court therefore “In either ed to thereon. CHER but wrote: on the was, event, however, barge, single one it unseawor- find the thy, whichever would find court 905(b)) (33 § U.S.C. under statute insufficiently There but ... obvious. open hatch this is irrelevant.” presumption that an unmarked 18 would seem liable, K its status employers fault, does not contest as bare boat holds irrespective of appeal Nor has it asserted on charterer. securing payment prescribed the HUGHES and CHER were not qualified employ- maritime themselves “vessels” under the LHWCA. injured ees employ- course of their See, Unisea, Inc., e.g., Kathriner v. § ment. liability U.S.C. 904.4 This (9th Cir.1992) (to determine whether employers is termed place “exclusive and in LHWCA, a structure is a “vessel” under the liability of all other of such applied general most courts have defini- 905(a). employee.” § Id. tion in 1 3 of a “watercraft U.S.C. or other Section of the Act authorizes certain used, capable artificial contrivance of be- employees bring covered an action used, ing transportation as a means party as a third if water”); employ- Traylor accord DiGiovanni Bros., (D.R.I.1993). ment F.Supp. 108-09 the vessel.5 But may longer no signifi- LHWCA definition of “vessel” is

cantly more inclusive than that used for eval- sue the vessel on a strict theory for uating “unseaworthiness,”6 seaman status under the Jones Act.3 her Congress having present purposes, For we assume that eliminated the latter as a long- LHWCA, barges both were vessels under the shore and harbor the 1972 905(b) negligence for the of which a section Amendments to the LHWCA. The 1972 brought. claim require Amendments employees to show vessel, fault of the obtaining bar a vessel’s of Statutory IV. Framework employer, indemnification from the and have comprehensive The establishes a increased compensation LHWCA the worker’s recov- federal worker’s employer. scheme which erable from an See Addison v. — Chandris, Latsis, generally damages 3. See directly Inc. v. U.S. such indirectly any or -, -, 2172, 2192, agreements 115 S.Ct. 132 L.Ed.2d contrary or warranties to the shall (1995) (to qualify as a seaman under the person employed by be void. If such was the Act, employee Jones "a maritime must have a services, provide stevedoring vessel to no such employment-related substantial connection to a permitted action injury shall be if the ”); Kathriner, navigation vessel in 975 F.2d at negligence persons engaged caused the (applying 659-63 tests of ''vessel” under Jones providing stevedoring services to the vessel. If LHWCA). Act and Plaintiff withdrew his mari person employed provide ship- such claims, including time of Jones Act claim building, repairing, breaking or services and negligence. owner, person’s employer such was the owner vice, pro agent, operator, hac or charterer of "(a) provides part: 4. Section 904 in relevant vessel, permitted, no such action shall be Every employer shall be liable for and shall se- part directly indirectly, whole or in or or payment employees cure the to his of the com- (in against injured person's employer any 907, 908, pensation payable under sections owner, capacity, including as the vessel’s own- (b) Compensation 909 of this title .... shall be vice, pro charterer) agent, operator, er hac or payable irrespective of fault as a cause for the against employees employer. or of the The injury.” § 33 U.S.C. 904. liability of the vessel under this subsection statutorily employee “any person A covered warranty shall not be based of sea- engaged employment, any including in maritime worthiness or a thereof at the breach time the longshoreman person engaged long- or other injury remedy provided occurred. The in this shoring operations, any harbor-worker in- subsection shall be exclusive of all other reme- cluding repairman, ship shipbuilder, ship- except dies remedies avail- breaker,” except "a master or member of a crew chapter. able under this any categories vessel” and other limited 905(b). § 33 U.S.C. 902(3). § workers. Id. 905(b) provides: 905(b). 5. Section § 6.See 33 U.S.C. Unseaworthiness is a “simply by maritime injury person that was established In the event of to a covered showing appurtenance chapter negligence some condition or on under this caused vessel, person, board anyone then the vessel at the time of the such or accident was other- hazardous, unreasonably damages by wise entitled to even if the recover reason stevedore- thereof, may employer bring an action was the sole cause such ves- hazard.” Keller, party (citing Shipping sel as a third in accordance 38 F.3d at 23 Seas Co. v. Sieracki, title, 85, 94, 872, 877, provisions of section 933 of this U.S. 66 S.Ct. (1946)). shall not be liable to the vessel for L.Ed. 1099 Corp. Laughlin Steel Carriers, Inc., owner. See Jones & Food Bulk 530-32, Cir.1974). (1st Focusing longshore Pfeifer, (1983) (as- 2547-48, date, occupa who, have been 76 L.Ed.2d 768 workers Supreme to ex- chiefly Congress had intended serting discussed that if group tional LHWCA, negli- Court from owners empt employer-vessel cases under Court designed “to shift changes as suits, in section these then the sentence gence described compensating responsibility recovery more of the them where barring from party able to the best injured longshoremen longshore workers fellow stevedore-employer.” injuries: the prevent unnecessary). More- As been would have Shipping Birkdale Howlett v. fall category does not occupational head’s 2057, 2063, 129 92, -, L.Ed.2d expressly ex- Congress of those within Keller, (1994); 38 F.3d at 23. also see Amendments, supra, in the 1984 cepted under cur- Laughlin appear LHWCA, would Jones & In the 1984 Amendments statute allow availability rent construction Congress further narrowed third-party bring a Morehead to categories of certain negligence actions capacity.7 in its vessel against A-K circum- action against a vessel in harbor however, has show prevail, was also Morehead To stances where the attrib- offending part In these so- any negligence vessel. on A-K’s cases, Congress barred as More- capacity” than called “dual utable to it as rather “shipbuilding, repairing, providing employer. LHWCA head’s insured suing employ- breaking services” any capaci- owner for er-vessel Duty Defining Care: Vessel's V. 905(b). The ty. Amendments 33 U.S.C. Cases employ- prohibit purport did not Morehead Laughlin allows As Jones & categories than the described ees other against third-party action bring a negligence in dual suing for from though latter even a vessel owner 98-570(1), 98th H.R.Rep. No. cases. See staratorily-immune em simultaneously his Sess., reprinted Cong., 2d principles ployer, need to find we (hereafter U.S.C.C.A.N. neg alleged acts of determining whether U.S.C.C.A.N.) (“The that Committee intends open and failure to ligence hatch —the 905(b) § not be construed language ] [in qua A-K vessel attributable to warn —are right a cause employee’s bring to to limit an qua employer. The Su than owner rather action, circumstances indicat except in the Congress that left preme has Court indicated Guilles v. Sea- language.”); ed within cf. defining the vessel’s the task of to the courts (2d Serv., Inc., 381, 386 Cir. 12 F.3d Land at -, Howlett, duty 512 U.S. of care. See 1993) judgment (affirming relief cook’s (“Because Congress did not at 2063 employer-vessel against negligent owner of the ‘specify acts or vessel omissions change ... shows that explaining “[t]he negligence,’ the con constitute would preclude a class Congress how to knew duty longshore workers of a vessel’s tours being an em able to from sue “applica through the resolved are ‘left so”); Gay v. if chose to do ployer-vessel principles of tort law and accepted tion of Cir.1990) (5th Barge ’ ”) litigation.” (citing ordinary process of (“[T]he 905(b) occupa specific bar 165-66, Scindia, at 101 S.Ct. at 451 U.S. ship repairers and shipbuilders, tions listed: 1621). breakers.”). ship Navigation v.Co. De In Steam Scindia previously inter- had The Santos, Los permit em- preted covered section (1981), Supreme Court consid- L.Ed.2d third-party negligence ac- ployees bring duty of care a vessel owner employer qua vessel ered the tions statutory of a covered definition disputed appeal that head meets parties on 7. The have not 902(3) does employee not fall statutorily employee under section of a is a covered Morehead categories expressly of workers of the statutorily employer. work- within prohibited As harbor covered 905(b). duties, suing section linehandling under carpentry More- er with injured longshore owed to an worker who acquire were to actual knowledge employed by independent was an stevedoring that “unsafe conditions” developed had triangular firm. For this common relation- appurtenances vessel’s turnover, since vessel, ship stevedore, at long- the stevedore-employer least — will not ad- shore limiting worker8 —the Court held that condition, dress the unsafe and that put the vessel’s of care so as to the chief stevedore’s decision not to the de- responsibility upon independent steve- veloping hazard “obviously improvi- Congress’ dore was consistent with intent to Id., dent” 174-75, circumstances. at permit third-party negligence actions Third, S.Ct. at 1625-26. even absent but to the vessel’s eliminate no- control, actual participation or knowledge, (the claim). fault “unseaworthiness” post-“turnover” duty may arise if the Howlett, long- case that also involved a vessel owner obligated, by contract, suing independent vessel, shore worker custom, statute or stevedoring monitor the Court restated the vessel’s limited resid- operations for purpose detecting ual duties: remedying unsafe conditions. Id. at first, which courts have come to call 101 S.Ct. at 1624-25. duty,” the “turnover relates to the condi- Id. tion ship upon the commencement of judgment Keller affirmed a that an inde- stevedoring operations.... The second pendent vessel owner had breached neither duty, applicable stevedoring opera- once its turnover nor its continuing duties ato begun, provides tions shipown- have that a longshore worker who had fallen from a lad- er must pre- exercise reasonable care to on der board the vessel. We injuries ruled that longshoremen vent in areas that court district in relying not erred remain under the “active control testimony industry standards, based on duty, vessel.”... The third called the which indicated intervene,” fulfillment of the “duty to turnover concerns the vessel’s duty. We also found no obligations breach of regard cargo operations continu- ing duty vessel, allegedly where the areas under the principal control of the dangerous developed condition independent during stevedore. cable loading operations which were under the ste- Howlett, at -, 114 S.Ct. at 2063 vedore’s control. (citations omitted) added). (emphasis recently applied This court these duties Scindia, As Supreme did the Court in States, (1st Keller v. United 38 F.3d 16 Cir. independent court noted the stevedore’s 1994), involving a case also triangular the greater skill expertise and relative to the vessel, relationship contractor, stevedoring vessel’s, making the positioned former better longshore worker. We described two prevent employee than the vessel to injury, duties of a prior vessel to “turnover”: the the stevedoring warranty traditional “duty “duty warn” of safe condi competently. perform 29-30; See id. at see tion.” Id. at 23-24. We further described Howlett, at -, also 512 114 U.S. S.Ct. at “continuing” three duties of care: (“The relieving 2065 rule vessels from this First, might the vessel owner remain general duty [to exercise reasonable care to duty under such a were it to retain dangerous actual discover develop] conditions that physical custody portion control or of a justifiable rests ‘the expectations of the vessel, the participate in stevedoring vessel the perform stevedore would Scindia, operations. 451 at U.S. 101 reasonable competence with and see to the 1622_ Second, at S.Ct. safety ”) (citation cargo inter- operations.’ the might vene omitted); Scindia, attach in the event the vessel 451 at S.Ct. Hewlett, suggested 8. the Court satlantique, that this rela- 443 U.S. 61 tionship typical longshoring was the one in the (1979) pay L.Ed.2d statutory 521 the ben- —must Howlett, -, business. 512 U.S. at 114 fault, regardless efits but is shielded from ("The injured S.Ct. longshoreman’s at 2062 em- (other longshoreman.”) further instances, ployer independent most steve- —in see Edmonds v. omitted). citations dore, Compagnie Generate Tran- in its negligence not for capacity, not ‘owner’ (“[the did Amendments] at capacity.” employer] insured expectations [the justifiable ‘stevedore’ undermine perform Laughlin, would at 531 n. & stevedore Jones vessel see to the competence and reasonable 6. at 2547 n. S.Ct. Further operations”). cargo safety vessel owner distinguish between How to justifiable reli- owner’s supporting negligence employer —where is the latter is that stevedore ance on the owner and entity both vessel the same adminis- legislative and “subject to detailed here, Morehead’s key because affording its work- prescriptions trative —is solely for Keller, right sue is statutory F.3d at workplace.” a ‘safe’ ers a vessel as negligence of accompanying by the vessel § 941 and (citing 33 U.S.C. 1918.1-1918.106, injuries §§ within work regulations, third-party. 29 C.F.R. For other Scindia, 1918.25, at LHWCA employment, § scope of his 1623-24). accept at he must provides that expressly prescribed under worker’s and Hewlett In Scindia place of’ all and in as “exclusive noted, owner’s Court, outlined a vessel as 905(a). liability. 33 U.S.C. other longshore worker relative to of care duties independent stevedore.9 by an employed complicates this case: A further matter yet Supreme Court has But too, it capacities, so has two the defendant in a analyze duties the vessel’s occasion said, Morehead plaintiff. might be does has the Court capacity case.10 Nor dual perform carpenter, but was hired awas analy- Scindia degree what its considered to A-K duties. carpentry and scowmen’s both work- non-longshoring harbor applies to sis separate crew on employ a did not operandi often ers, and modus whose duties below, further we will discuss barges.12 As longshore considerably those of differ aspect of the ease capacity” this “double said, though, that has The Court workers.11 determining considered in a factor to be make it course, ] does [section “[o]f properly attribut- acts are negligent whether acting as its own a vessel owner clear that as vessel.13 able to a defendant only is liable stevedore noted, barges were tugs that towed the 12. As applied duties have Scindia 9. Other courts by employees of Woods captained crewed longshore employees than other LHWCA-covered Hole, See, supplied tugs. These tripartite context. the familiar workers in barges; under (welder); Teply handle the lines did not Elberg, e.g., F.2d at 1149-50 rules, employed carpenters/scowmen (5th union Corp., Cir. v. Mobil Oil Morehead) (such well). did. 1988) (worker A-K barge-accessible oil might, responsibilities in other Laughlin, negligence mix of & 13. This In Jones cases, possible qua expand range remedies had been capacity defendant injured employee, then who must to an conceded. available regimes mutually exclusive choose between Chandris, - and Jones Act. See of the LHWCA in Scindia Longshore such those 11. workers as at -, (citing S.Ct. at 2183-84 Wilander, ships 115 cargo that are U.S. typically unload load 337, Int'l, 498 U.S. Inc. v. McDermott by and crew. Vessel operated a master full-time 807, 813, 347, L.Ed.2d 866 112 distinguished 111 S.Ct. from steve- negligence often be can Gizoni, Marine, (1991)). 502 In Inc. by determining what extent Southwest negligence to dore (1991), 486, caused, 405 116 L.Ed.2d U.S. 112 S.Ct. dangerous or allowed condition was shipyard rigging Supreme that a Court held neglect the vessel's persist, of the by to reason floating connecting handled lines stevedoring employees. foreman —who of the rather than crew pre here) repair workers, however, (as not platforms to under vessels work Harbor —was seeking a tort tugs of law by cluded as a from barges about matter that are moved construction merely ship remedy Act because the Jones fully-dedicated professional crew as under have no specifically among jobs enu repairers are those harbor part employment, the As of their such. 89, 112 id. at the LHWCA. See time to merated under may do whatever needed preserves (“By barges, at 492 its terms LHWCA besides to lines and service the time tend crewmen, even if vessel carpenters, Act the Jones as performing construction duties shipyard. Thus, employed by A maritime electricians, assessing they are what the like. only if no to remedies purview of the worker limited responsibilities fall within the as to whether care, genuine of fact exists distinguished issue from the duty as vessel's Act.”). under Jones seaman worker employer’s, quest. be an elusive can

611 expertise stevedore, VI. Lower Court Precedent thereby as avoiding lia- bility as vessel for negligence. While the has said little rejected Second Circuit the defen capacity beyond giving dual eases ap- about attempt dant’s escape liability negli in proval suing capacity of dual defen- gence as vessel seizing “employer hat.” capacity, their vessel dants some Relying on a dissent Judge Friendly in circuits have decided cases similar to ours. Lines, Inc., Canizzo v. Farrell They alleged negli- have asked whether (2d Cir.) J., (Friendly, dissenting), cert. gence qua employ- was due to the defendant denied, U.S. 99 S.Ct. vessel, qua recovery er or only allowed (1978), L.Ed.2d 322 the court appeals And, in the latter instance. principles bor- ruled that a greater vessel duty assumes rowed from Scindia applied have been care when there independent is no longshore workers as harbor well as workers. responsible workplace conditions, upon Applying capacity Scindia a dual defen- whom the may rely vessel owner to oversee questions rafees longshoring dant even safety workplace on board. See example, For context. if a defendant is Fanetti, Canizzo, 678 F.2d at (citing of a aware defect the work area as steve- 689-90). F.2d at employer, dore should such awareness also Rearranging duties of care as in Fanetti to it be attributed owner? vessel And as problems, raises serious hereafter, discussed supra, we note empha- Scindia and Keller by enlarging an employer’s liability tort be sized a vessel owner’s pre- reliance yond purposes of the 1972 Amendments. expertise stevedore, sumed an inde- Howlett, at -, 114 S.Ct. at Cf. pendent contractor. Where the vessel owner Fanetti, moreover, was decided before stevedore, is also the is it reasonable to Laughlin Jones & was handed down in the attribute such reliance? Supreme Court. We do think that the Concerns of this led nature the Second today Second Circuit would endorse Fanet- Ltd., Circuit in Fanetti v. Lines Hellenic care, ti ’s duty broadened given the Su (2d Cir.1982), denied, cert. preme Court’s remark “that a vessel owner (1983), 77 L.Ed.2d 1387 acting as its own stevedore is liable longshore indicate that a worker’s claim capacity, its ‘owner’ not for capacity a dual defendant would be in its capacity.” ‘stevedore’ Jones analyzed differently from a claim Laughlin, a & 531 n. S.Ct. at separate shipowner brought by employee n. suggests 7. This comment that the independent Fanetti, of an expected stevedore. a Court the limited vessel longshore injured worker was on deck carry Scindia to over situa unsafe condition. The defen tions as well. No later case from the Second 1) argued employer- Circuit, dant circuit, its role as nor from has other been stevedore, primarily it was responsible for called to our following attention Fanetti’s 2) safety workplace, enlargement a vessel’s in a dual owner, it should rely upon Guilles, able situation.14 12 F.3d at claim, pre- Morehead withdrew his Jones Act exclusion for Morehead buttress his claim sumably because he did not believe he could arguments portraying under the LHWCAwith Nonetheless, Breault, establish Jones Act status. employee, seaman fellow as if he were a member attempted Morehead has to focus our attention of the crew of the vessel. See infra. vessel-type responsibilities on the that Breault performed period in the injury, before might the as 14. Fanetti have reached the same result of emphasis discussed While on vessel- applying duty vessel without a broader infra. type duties be appropriate fact-spe- for the care. dispute The defendant did not that the status, inquiry cific place into seaman we perform- little vessel’s crew created the hazard while weight attempt on this ing bifurcate longshoring to vessel and operations. work unrelated to Fanetti, construction situation, activities these when workers were 678 F.2d at 426. In this perform

hired to both. qua The definition of a cov- the arguably defendant vessel had active employee ered under the LHWCA excludes "a control over the crew and knew or should have any actions, master member of a crew of injury-causing vessel.” 33 known making about the 902(3). U.S.C. It seems inconsistent with this it liable even under the standards. Scindia 612 905(a) & of sections exclusivity provisions (a decision Circuit recent Second 387 (b). contrary lan- to the contrary This result authority to Circuit citing Fifth amended. of the as and Act guage purpose a valid cause of ruling only that and

Fanetti duty owed a that the 905(b) existed, hold We therefore where section under action under sec- longshoreman a shipowner to to the vessel’s stipulated had parties the by Scindia dicta, is that established tion or not termed Whether negligence). duty is neither progeny; and its the Court’s to overlook free not feel we do long- the heightened nor diminished when Laughlin. & in Jones statement directly by the ves- employed shoreman is Circuit, Fanetti, Fifth the Contrary to sel. great number of a decided has which Co., Eng’g Id.; Manitowoc Tran v. accord cases, the same has allocated (5th Cir.1985). 228 767 single capacity dual and to of care duties Castorina, approach relatively as in regards this It On the facts defendants. limiting of easy apply Court’s the Scindia standard the to keeping with ease, and (e.g., Scindia the care In a duty shipowner-employer. later a vessel’s Congress’ in a more com and Laughlin), applied Fifth Scindia & Circuit Jones same injured the worker. involving a harbor plex situation provide to tent (5th Enters., their em remedies, of whether F.2d 528 regardless 943 v. Levene Pintail legal denied, 112 happens Cir.1991), to be or another cert. ployer (1992), in 201 vessel.15 L.Ed.2d of the 119 oper heavy equipment a jured employee was was Casto case Fifth Circuit seminal tasks as maritime performed other ator who (5th S.S., F.2d 1025 758 Lykes Bros. v. rina Levene to captain had instructed A well. denied, Cir.), cert. barge, blocked untie another owner’s (1985). There, long- a 88 L.Ed.2d they had barge been particular access to during car exposed to asbestos shore worker injured pick up. Levene was to instructed employer-ves alleged that his go operations grease barge, where owner’s on the other qua vessel and harm of the knew sel owner present on were scrap materials The Fifth safe. to make faded 530. See id. at deck. compensa the LHWCA stated Circuit separate “requires duty us of turnover Applying Scindia scheme tion and that of over a shipowner active duty arising control per reject- stevedore, shipowner condition, court when the dangerous even Levene stevedoring Id. at ex- court employee’s activities.” claim. The forms its own ed the harm alleged mandate “ex- Noting that did not plained that Scindia activities, the stevedoring protection court during duty shipowner tending arisen knowledge of this dan any Id. at 534. impute ship.” on another refused hazards vessel. It general to it as standard to fashion ger decline “[W]e require a care’ that would explained: of ‘reasonable haz- and all shipowner protect knowledge shipowner- ato impute this To might encounter longshoreman ards it liable tort be to hold employer would Further, the court Id. course of his work.” arising from its damages fleeting between “the contact did not view stevedore, effectively to eliminate the intervene); See, give Koernschild e.g., rise to suit. followed have 15. Other courts Inc., (D.N.J.1993) Streit, Atkinson-Kiewit, J.V., F.Supp. F.Supp. v. W.H. Halpin v. summary denying (applying duties (D.Mass.1995) de Scindia (applying duties and Scindia dispute judgment factual judgment defendant where nying partial motion defendant’s Bros., plaintiff's concerning awareness Traylor existed pleadings); DiGiovanni docketed, hazard); Eng’g v. Luedtke (D.R.I.1994), Coats appeal F.Supp. No. (E.D.Wis.1990) (deeming "employ 27, 1994) (1st F.Supp. (finding July no viola Cir. 94-1775 employee providing a safe responsible for er” where obvious duties hazard tion of Scindia following vessel, granting vessel, job passageway his on the defendant “turnover" given its summary judgment to the defendant knowledge over or “active control" vessel lacked a condition as vessel over control” placed em lack "active equipment aboard for of leak from vessel). off-board operations, did ployment and the circumstances employer-vessel liability); (“In [the owner] Pintail and the 1984 U.S.C.C.A.N. at 2740 separate BB-242 barge] view, owner’s [the as the Committee’s Longshore Act should kind of control that could finding ‘primary result in a be the compensation source of for liability.” Id. at 535. It noted that the covered workers who are disabled or who duty arising may control active over a haz- die as a job-related result of a injury or disease.”) may triggered ardous (emphasis condition be when supplied); H.R.Rep. No. 92-1441, dangerous condition is on Cong., Sess., the vessel itself. 92d reprinted 2d in (discussing (“[T]he See id. Masinter v. Tenneco Oil U.S.C.C.A.N. bill (5th Cir.1989), 896-97 provides a longshoreman case a who employed non-dual case which the directly by vessel the vessel there will sole’y responsible crew placing be no action damages a if the injury was way stairway to a caused persons engaged worker, and the vessel “contractually performing longshoring services.... The drilling bound to conduct the operations and Committee’s intent is princi- that the same ples remained in control of the apply vessel to effectu- should in determining liability of obligation”). though ate this Even cap- the vessel employs longshore- its own ” “temporarily tain was in men ... apply ‘command’ both independent when an con- separate and the barge, employs vessel tractor persons.”) owner’s such (emphasis the court found that supplied). this did not rise The 1972 carefully Amendments required. level of control active Id. balanced the employers, vessels, concerns of

and covered workers. We are not disposed Resolving upset VII. This Case expanding balance the liabil- ity of employers that simultaneously act agree Circuit, with the Fifth We owners, vessel when the statute does not call reasons, similar that the duties of care de reading for such a and the scribed applied in Scindia should be in dual has cautioned it. capacity cases insofar as the facts allow. To observed, As so, already may Scindia will do court have to some- employ divide the times afford guidance less direct er-shipowner hypothetical into a those independent duties owed to harbor workers than it independent owner, does on those longshore owed workers. holding each Courts separately the duties allocated decide, basis, will need to case-specific on a principles suggested under in Scindia. A whether employment the harbor may worker’s ar- court sometimes pro be assisted in this rangement sufficiently resembles cess employment defendant’s internal particular Scindia to specifics ger- make arrangements assigning personnel certain mane. operation. “vessel” side of its On occa sion, however, the arrange duties and work Here, employment arrangement pertaining suing ments to a harbor worker is sufficiently analogous to make Scindia may foreign be so to those in Scindia’s guide. useful The Scindia Court reasoned stevedoring analysis context that Scindia’s longshore that once workers came aboard will no than point depar become more began carrying cargo out their duties Nonetheless, ture. general Scindia’s ap under a supervision, stevedore’s least, proach, and, many at can be followed itself had no general to exercise reason cases, express analysis some all of its inspect able care to for unsafe workplace be useable. conditions; rather, rely long- could on the statutory language legislative shore worker’s to do so. See Scin history dia, 1972 and 1984 Amendments S.Ct. at 1624-25. plainly Congress’ Here, evidence intent A-K hired harbor workers through the worker’s pri- carpenters’ and, scheme local union employ as their mary remedy workers, er, for all co\ered supervised re- they them as tended the gardless employer’s of an prac- barges, commercial handling the carrying lines and out regard tice in to vessel ownership. See 33 construction types activities thereon. Both 905(a) (exclusiveness U.S.C. employer’s of activities —construction and scowmen’s barge surveyor the before per- examine and were marine assigned to them work —were claims He further returning like it to the owner. qua employer. Workers A-K formed daily carpen- safety manager instructions or other their received that A-K’s Morehead A-K’s carpenter-foremen, while have known that A-K’s knew or should from ter foremen periodically with safety manager met potentially hazardous project open hatch was a the safety site-specific issues. agency purported to discuss Resting them condition. Therefore, lia- principle of limited assign Scindia’s these us to principles, Morehead asks ap- sensibly logically bility of capacity, to A-K in its vessel employees’ acts effectively as- tbe plies, because rather theory A-K in its vessel that on the working under barges the control of sumed over or control than A-K employer. as their in its A-K the failure knowledge open of the hatch captain and separate had no qua shipowner it. to warn about allegedly barge. The assigned the to crew perform- was responds that Breault A-K (the open hatch and the conditions negligent opened he ing employment duties when warnings) not attributable were of absence the line to More- and when he threw hatch acting agents maritime separate the errors Morehead, Like the accident. head before al- the vessel. Rather specifically for carpenter both for had been hired Breault of fellow negligence were those leged acts typical in the case duties. As and scowman scope of acting within harbor workers workers, land- distinct of harbor employer. daily for the employment expected as carpenters, the men were based liability of (prohibiting 33 U.S.C. Cf. lend employment duties to part of their “caused for acts employer-vessel owner an supporting chores hand with maritime provid- persons engaged construc- pursue their particular well toas vessel”). stevedoring ing services that its “active A-K maintains tion trade. any breach not assert Morehead does open knowledge or about control” over A-K, duty (e.g., that “turnover” the Scindia fell is therefore into which Morehead hatch barge owner, turned over as vessel as vessel employer, it as not attributable duty to knowing or with harbor opened (presumably hatch was since the barge known, that defect have some Breault) eourse of line thrown argues injury). Morehead later both men were worker duties which harbor A-K as vessel should deem that we perform. regularly hired to because, at the him duties it owed violated (rather injured, A-K as time he was that, pur- present agree A-K with We have employer) is A-K as asserted than carpen- by its barges poses, tended knowl over “actual had “active control” operated within A-K’s were ters/scowmen Hewlett, 512 hatch. edge” open employer. The knowledge qua control at -, (noting appel- at 2063 and Morehead’s barges, which were Breault of turn- arguments to breach confined lant analogized to the areas workplace, can be warn); Elberg, 967 F.2d at duty to over by longshore workers in taken over a vessel arguments (noting appellant confined principles of setting. Under the Scindia intervene). Equating em- breach or, case, capaci- in a dual stevedore — compensation pur- ployment for worker’s case, capaci- ty employer in a stevedore activity, he solely construction poses safety ty ordinarily liable for —is purpose, hence that no construction asserts injuries that occur. workplace and for pursued purpose, being employment no vessel, its vessel or the support injury. He of his draws at the time except in the un- implicated capacity, is not findings court’s from the district con- vessel itself usual circumstance pier alongside the and were barges were set over the control tinues to exercise active equipment. More- carrying construction work area. emphasizes that A-K had instructed head analysis competing recognize that a We barge open the hatch to air the Breault to however, which, reject. A we court possible, could what More- so that A-K exercise out Breault’s attempt ascribe having a could make argues a vessel head function — specific and activities relative to in regular (such Morehead’s the employment course of injury either to Morehead’s their carpenter the foremen or safety worksite vessel, depending or to the on how the court manager) to A-K in a capacity. vessel Nei- classify objectives chose to those ther statute nor supports case law such thought were to serve. One could activities approach, which, an present facts, on the inquire opened whether the hatch was to would leave this compensation worker’s stat- (ie., “help” preparation to air it in a strange hybrid ute as combining mandated owner) returning for it to the rather than in compensation coverage widespread with a li- activity. furtherance some construction If cense for employees covered to sue because so, qua the defendant might vessel be held supervisors of their and any negligence. liable analysis, Such employees fellow the workplace. within however, slippery would involve in courts One of the purposes essential of the 1972 debate. Is an ty- semantical accident while and 1984 provide Amendments was to em- ing up barge at a construction site in ployees employers and greater with a degree objective of a furtherance “construction” or a certainty coverage as to the in effect. The objective? objectives “vessel” If both are legislative history of the 1984 Amendments served, being predominates? which And how documents this concern: square does employees one the fact that the [T]he situation in which a worker here were hired for scow- time, covered at one and not covered at just men carpenter not duties? Harbor another, depending on the nature of the are, all, definition, after employ- work which the worker is performing at paid ees duties whose maritime com- include time of the must be avoided ponents. since such a result would be enormously noted, As employer’s statute makes the destabilizing, and would thus defeat one compensation liability worker’s “exclusive the essential purposes of these amend- place and in of all liability....” other ments. 905(a). legislative U.S.C. history The and 1984 U.S.C.C.A.N. at 2736-2737. A “func- precedents the Court’s since 1972 make interpretation, hinging tional” type worker’s primary liability on the purpose nature and injured for an employee. exception being performed by duties covered employ- section third-party negligence, time, at given ees would increase uncer- 1984,16 requires narrowed explicitly a find- tainty frequency disputes over the ing of fault. disregard- vessel We would be scope of coverage. As ing Morehead’s and Congressional might intent and even be employment Breault’s contemplated that returning in the direction of the Sieracki they frequently would alternate between con- require doctrine did not such a show- linehandling, ing, single, struction supra see n. if overall we were attribute classification of their duties is most regular appropri- some of the that a duties harbor for determining types ate employed perform worker is vessel, remedies (“[T]o Gay, available. speculative of their 915 F.2d at 1011 because seaman-like Cf. character, deny Gay [the employee] cause of residue to the em- action ployer. morning approach grant This but to him greatly would one in expand liability qua rights defendant’s afternoon is to make vessel in a work his under the Act arrangement not too random different from that in indiscriminate as the sea her- ie., Scindia, one where the This precisely self. sort of incertitude is have effectively taken over carry Congress attempted what out to eliminate from employment duties employ- under their both its 1972 and 1984 supervision. amendments.”) (footnote er’s A expansion similar omitted); of lia- Chan cf. — bility dris, follow from easily at -, (“In would too assigning any knowledge acquired by A-K employees evaluating employment-related connee- Grace, Aqua Roach v. Laughlin Corp., Congres- M/V Steel does indicate a (11th Cir.1988) (“While this [1984] amend- sional intent to limit capacity [sic] invocation of the dual ment holding Act.”). does not disturb of Jones & doctrine trader separable really two distinct employer) is to a vessel a maritime worker

tion of pro hoc vessel owner (employer ‘a employ entities courts should navigation, vice). view, status, my this self-induced schizo- inspecting test seaman “snapshot” disrupts the law and instant of muddles the phrenia at the as it exists only the situation Congress labored may not oscillate balance delicate injury’.... [A] worker coverage of Act entitlement stevedores Jones between the forth between strike back activity similarly to workers’ on the situated depending and others remedies other benefits, of engaged in- while and the entitlement the worker compensation in which omitted). (citations coverage im- to provide that jured.”) employers who short, I suits. munity course, will, from time arise Cases been tak- should have Congress that believe negligently involving that was an time employer’s literally that an when wrote en acting agent of the by as the someone compensa- workers’ responsibility furnish employer.17 than of rather vessel owner is the LHWCA “exclusive tion benefits under however, nothing requiring the Here, we see liability of such place all other and in Breault, leaving in that court to find district employee.” U.S.C. hatch, any capacity in other acted open the 905(a). § employee pursuing as Morehead’s fellow than rather than as harbor worker duties assigned conclude, with reasoning me to leads This capac- shipowner’s in distinct agent A-K’s Congress that inadvertent- respect, all either hired to were ity. Morehead Breault phrasing in LHWCA ly muddied waters scowmen perform both construction 905(b), or, alternatively, & Jones carpenter-supervisor instructed A duties. Still, I rec- wrongly decided. Laughlin was project hatch. A-K’s open Breault opinion is Supreme Court’s ognize that the safety manager generally oversaw the safety court, therefore and that we binding on this has not operations. Morehead work chari- Judge Campbell must undertake what circumstances, A-K in why, in these shown Ante note tably quest.” terms “an elusive owner of its distinct as necessity, I can to that 11. Once reconciled may have employer, than as his rather cogent join this court’s good in conscience protect him duty of care to a breached however, urge separately, I opinion. write open hatch. Congress to reflect Supreme Court court correct- district We conclude Laugh- games that Jones & upon the mind open as a condition tem- hatch ly viewed to harbor work- applied as particularly lin— employer, and and, created A-K porarily hopefully, to play, compels us to ers— judgment in favor district court’s capaci- affirm “dual question of whether revisit A-K. negli- all in be liable at ty” employers should employees. brought gence actions ordered. So (concurring). SELYA, Judge Circuit CYR, (dissenting). Judge Circuit precedent, existing Supreme Court Under disagreement with As I am fundamental large vexing A and a case. is a close of care incum- given the duties the treatment lan problem that the Court’s is part employers capacity LHWCA bent Corp. Laughlin & Steel v. Jones guage Supreme banc court under the en n. Pfeifer, 462 530-32 & Scindia, respectfully dis- I Court decision n. 76 L.Ed.2d 2547-48 & sent. (1983) holding or a con deemed a — whether judges who are called dictum —forces sidered I capacity” LHWCA upon to decide “dual decision fiction, years after its seminal Two legal pretending engage cases (en opin- Scindia, banc (the supra V see Section entity injured person’s single Co., inspection tank leak and failed a fuel ried 748 F.2d Bisso Towboat Pichoff v. agent acting adequate lighting (5th Cir.1984) provide (ruling in a dual 302-03 vessel). general manager who ordered hur- case that

(J17 ion), Supreme injured Court held that an company). and construction I respectfully longshore worker receives disagree. who LHWCA compensation benefits barred from First, footnote 6 is unelueidated dictum. bringing á action his ves- Dedham Water Inc. v. Cumberland 905(b), sel-owner under section Inc., Dairy, (1st Farms 972 F.2d notwithstanding seemingly unqualified Cir.1992) (“Dictum constitutes neither 905(a) “exclusivity” provision in section law of the case nor the stuff binding employers sole to which maritime precedent.”). Although great deference nor- subjected mally is accorded considered benefits. Laughlin, See Jones & 462 U.S. at dicta, see, e.g., Bank England New Old 530-31, 48; 103 S.Ct. at supra see also 2547 — Clark, Colony, (1st N.A. (en opinion). Beyond note 5 bane the conclu Cir.1993), only question statutory in- support sive contextual for holding, terpretation confronting the Court in Jones legislative history relevant confirms a con Laughlin & was whether the im- gressional rights intendment “that the of an any posed care at all injured longshoreman ... depend should not owners, parties since the on directly by whether he was employed agreement in were that the defendant vessel by

vessel or an independent contractor.” owner would be negligent liable for its con- 532, Laughlin, Jones & 462 U.S. at 103 S.Ct. per duct absent such immunity se pre- (quoting H.R.Rep. 92-1441, at 2548 No. 92nd by only scribed statute.2 parties Not 8, 1972 did the Cong. p. 2nd Sess. Cong. U.S.Code & in Jones 4705).1 Laughlin & 4698, complex not brief the pp. Admin.News legal presently us, issue before but there is elaboration, Without farther the Jones & exegetic no in discussion—either footnote 6 Laughlin appended eonclusory Court foot or elsewhere in the Laughlin opin- & Jones (“footnote 6”) course, note holding: to its “Of legal itself, ion —of the issue the LHWCA’s [905(b)] does make clear that a vessel legislative history, supportive or Supreme acting as its own stevedore is liable precedent. Court v. Humphrey, Heck negligence for in its capacity, ‘owner’ 477, -, 2364, 2370, 512 U.S. 114 S.Ct. not in its capacity.” ‘stevedore’ (1994) L.Ed.2d 383 (rejecting Court’s own Id. at 531 n. S.Ct. at 2547 n. 6. The en prior opinion in dictum “had no cause interprets banc court footnote 6 as the Su address, consider, carefully did not preme Court’s legal endorsement of a fiction damages question today”). before us present central controversy: a dual capacity employer engaged in importantly, maritime con More if even footnote 6 were operates struction presumptively binding precedent, two be considered curt wholly capacities (i.e., discrete vessel owner begs conclusion question: the essential Report 1. exceipt The full House states: by persons engaged recognized The Committee has performing also the need longshoring pro- services. Similar special provisions for a deal with a case where applicable shipbuilding repair visions are or longshoreman repairman ship or builder or employees employed directly by the vessel. employed directly by is the vessel. In such The princi- Committee’s intent that the same is case, notwithstanding fact that the vessel is ples apply determining liability should Court, employer, Supreme in Reed v. employs longshoremen vessel which its own or Yaka, S.S. 373 U.S. 83 S.Ct. ship repairmen apply builders or when an (1963), Lykes L.Ed.2d 448 Steamship and Jackson v. Bros. independent employs persons. contractor such [731, 92-1441, 7-8, H.R.Rep. Cong., No. 92d 1st Sess. (1967), 18 L.Ed.2d 488] held that the unsea- reprinted in 1972 U.S.C.C.A.N. at worthiness injured is available to the added). (emphasis employee. The Committee believes that the rights injured longshoreman ship of an or repairman Longshoreman slipped builder or depend should Pfeifer not and fallen employed directly by whether he is barge employer, while on board a his owned independent an Accordingly, contractor. "negligently which had to remove [ice] failed provides longshoreman bill in the case of a gunnels.” Laughlin, from the Jones & employed directly by who is the vessel there 103 S.Ct. at 2544-45. damages will be no action for if the stevedore.”) Napoli v. itself, (quoting care, are the how defining the duties (2d Ltd., Lines, 536 F.2d partic- Hellenic in what conditions to determine courts Cir.1976)). example, as the Second For Cir- is to be considered negligent conduct ular employer qua cuit observed: a dual traceable creating or endors- Far from vessel owner? independent con- no ... Where there fiction, legal footnote ing presumptive tractor, ship’s duty to part of the it is that a view impart the Court’s may simply inspect its own care exercise reasonable future ease employer in some grease to remove workplace, workers’ an efficient yet able to demonstrate might is no a ease there spills, In such etc. care statutory duties of bifurcation primary re- “independent contractor” split circuit current LHWCA. The under the may prop- ship upon whom the sponsibility very at the least thus indicates on this issue very Things are different rely.... erly purportedly endorsed legal fiction that the inde- longshoreman works when the acceptance universal footnote 6 has won primary re- who has pendent stevedore courts. in the lower workplace. sponsibility accepted footnote 6 has Fifth Circuit Canizzo, at 689-90 (quoting Id. meant to that the as evidence (emphasis J., dissenting, part)) (Friendly, legal construct deemed an artificial endorse added). & Although preceded Fanetti Jones integrity proto- as a central LHWCA’s the Castorina decision Laughlin, whereas compensation statute. See typical workers’ after, there is no indication came Castorina, Levene, (citing 531 943 F.2d at position.3 has altered Circuit Second (noting: legislative since F.2d at 1032-33 758 II maritime em- history contemplates that all remedy, “[w]e can ployees receive “same” presump- embraces the The en banc court shipowner a impose on a no reason to find adopted in approach Casto- “bifurcation” tive longshoremen duty of care toward greater option that the Fanetti rina out of concern its own ste- shipowner conducts because the amend- the 1972 LHWCA would eviscerate say, a operations”)). That is to vedoring purpose: to offer all mari- principal ments’ 905(b) would contrary of section construction protection employers time maximum employers of their an- deprive capacity dual liability in for their tort return unpredictable assuming the burden of ticipated return for to the LHWCA monetary contributions fixed workers’ com- contributing to the 904 section v. fund. also DiGiovanni See pensation scheme. Inc., Brothers, 42 F.Supp. Traylor 855 (D.R.I.1994) (same, analogy hand, citing by to “ex- Circuit, on the other has The Second clusivity” in Rhode Island Workers’ provision capaci fit attempting dual pointed out Statute, see R.I. Gen. Laws Compensation employers into the traditional Scindia ty (1994)). Accordingly, the en § 28-29-20 and artificiali serious anomalies mold causes fiction as the views the bifurcation banc court single capacity present not cases. ties congressional (“[A] achieving the [jury] only See, means e.g., F.2d at 428 Fanetti injured longshore- an rights liability goal “that shipowner charge which relieves he depend on whether ... should ‘known man not dangerous which was for a condition by byor directly employed employees’ is or of its to the stevedore H.R.Rep. No. 92- shipowner, independent contractor.” clearly inappropriate where re- complete explication duties of care for panel court that the Fanetti employer exclusivity provision in section port.”). Therefore, even indulging without 905(a) is far more flexible than the land- the “bifurcation” adopted fiction by the en compensation based workers’ in statutes court, banc entirely it is point reasonable to states, most which in comparable contexts out capacity that dual employers, in return permit would not a bring worker negli- a for assuming much more limited section 904 gence action employer as owner workers’ liability, obtained an property on which the worker’s important benefit from the 1972 amend- occurred. generally Larson, 2A Arthur ments; is, complete from insulation Compensation Workmen’s 72.82, Law at much more onerous strict liability which (1983).4 Thus, 14-234 it reasonably seems they exposed had been in previously actions Congress clear that did not envision section warranty breach of the of seaworthiness. analog 905 as an exact to state workers’ compensation schemes. Fourth, Congress may well have envi- sioned different duties of single care for ca- Third, the cited Report language House pacity capacity and dual employers. Unlike appears immediately a after discussion single their capacity counterparts, dual ca- Congress’ abrogate intention to the Court’s pacity vessel presumably previous Yaka, in owners eco- decisions Reed derive v. S.S. 373 410, nomic 1349, as a 83 benefit result of their S.Ct. 10 decision to L.Ed.2d 448 (1963), fact, in Lykes Co., and Jackson v. act a dual capacity. Bros. S.S. this economic 731, 1419, 87 S.Ct. 18 benefit itself L.Ed.2d 488 well counterbalance (1967), 1, see supra note “heightened” which held that duty dual attending of care capacity employers were as vulnerable to decision. Many recognize capacity do states dual a doc- duty claim for breach —owed though inapposite in circumstances consuming public trine — here—where the reasonably make a safe —to employer in a acts non-land- See, product. e.g., Schump v. Firestone Tire & capacity. example, owner by For injured a worker Rubber Ohio St.3d 541 N.E.2d product a manufactured (1989). 1042-43 bringing would not product be barred from a Rather, entity. separate vessel to course, liberty to is, shipowner

A in control— steve- remains independent hiring an refrain (both Presumably it does so time and extent doring contractor. to some at least However, saving is money. control total save often remains space)—and having an at the cost accomplished appurtenances and its the entire myriad As expert on board. independent Thus, period. time relevant throughout the demonstrate, pres- field in this cases knowledge foresee- range of fuller stevedoring independent expert ence of constant normally accompanying ability shipowner with furnishes contractor reason compelling represents control total of insula- in the form protection, significant part of the accountability on the for broader which liability for its own acts tion from gen with employer, consistent shipown- But the otherwise attach. would see, e.g., Con Illinois principles, tort eral still premium save er cannot Inc., Transp., Corp. Logan v. structors protection. claim the (N.D.Ill.1989) (agent’s 22n. F.Supp. added). Fanetti, (emphasis F.2d at 428 exposing principal, knowledge imputable em- Indeed, the dual permitting tort); People v. liability in to direct principal “knowl- its actual compartmentalize ployer to Ltd., Michigan, Ctrs. Medical American personae artificial its two edge” between N.W.2d Mich.App. pri- undercut the would these circumstances denied, 1009, 104 (1982) (same), cert. Scin- goal identified in policy mary LHWCA (1983); Allen L.Ed.2d 711 be no say, there would is to dia. That Co., 839 Property & Cas. Ins. Prudential shipowner-employers incentive for economic 1992) (same). (Utah P.2d companies, stevedoring independent to hire expertise possess greater generally employer owner single capacity Even maxi- longshoring activities conducting intervene ongoing shoulder the must safety. artifi- Such an worker mum levels conditions hazardous necessary to correct haz- increase the inevitably would cial rule remaining within any part of the vessel encountered working conditions ardous actual control, acquires when as well as workers, thereby harbor longshore and posed developing hazard knowledge of a the LHWCA. spirit undermine open deck (e.g:, appurtenances the vessel’s fic- Fifth, banc court’s bifurcation the en and knows powerpack), leaking hatch or the factfinding inquiry into any tion obviates failure to independent stevedore’s the of actual mode employer’s capacity” “dual improvident. plainly hazard the Levene, Fanetti or either operations. Under 32; Keller, Melanson also 38 F.3d See cf. sub- capacity employers are dual single and Ltd., 213, 214 Reefers, 667 F.2d v. Caribou care; ject “same” standards Cir.1981) (1st “obvi- (noting that Scindia’s purely circumstantial. are differences general- of care improvident” standard ously single recognizes that a paradigm Scindia developing hazards ly pertains compara- subject to capacity vessel owner nonappurtenanees gear, than rather vessel’s it for- care because tively duties of relaxed token, however, By opposite cargo). like ensuing events virtually over all control feits capacity a it matter whether dual can what legal vessel over another it its once turns does, knows, surely that its it (and entity’s employees) in rela- entity not to stevedore qua independent decision enjoys no owner tion which improv- is not hazard is or a known eliminate specific right of control absent presumptive all, con- can contrary. vessel exercise After a arrangements to the ident? contractual only through its trol, knowledge, acquire hand, general rule other On the 902(21) (“ves- crew, U.S.C. owner knowledge as the foresee- well notice or —as members”), “agents” and “crew includes sel” capacity em- ability to a dual —attributable exer- cases the single capacity control and in simply ves- greater because ployer will be knowledge acquired these cised longshore or its own which hires sel owner ves- imputed to the normally agents must in fact “turn over” does not harbor workers apology capacity sel.5 The for the viz., fie- history; lative that the “same principles might tion [i.e., be more compelling were there the Scindia duties apply care] should reality-based some indication as to when the in determining liability of the vessel” in markedly responsibilities different single incumbent both capacity capacity and dual eases. employers become en- See H.R.Rep. No. 92-1441. gaged. case, But this is simply not the Sixth, the mere fact that Congress the 92d course. Even the determinative one-time reduced tort exposure single ease, “turn over” in a employers in certain respects does brings clearly about a distinguishable rea- permit extrapolation indulged by the lignment responsibilities in keeping with court; viz., en banc Congress must have control, change bears no relevance in intended to employers accord the maximum the dual capacity case. In the Jamestown protection from negligence liability regard- Bridge project, construction example, any less of actual respec- differences vessels, control and use of some or discrete about, tive levels of knowledge or capacities vessels, areas of various frequently alternat- control, the workplace. doing, In so employer’s ed between an vessel-operating en gives banc court recognition little employees.6 construction presumptive one principle statutory inter- Clearly, then, the dual fiction pre- pretation plainly applicable here: sumes circumstantial settings which overlook LHWCA liberally “must be construed in con- the actual many facts in if not most cases. formance with purpose, way in a best, therefore, At the Castorina fiction which avoids harsh incongruous results.” Reed, devolves into a metaphysical exercise, at (em 373 U.S. at 83 S.Ct. at 1353 worst into an added). to dual capacity Eikel, phasis inducement See v. Voris employers perpetuate 328, 333, hazardous 88, 91-92, condi- 98 L.Ed. 5 tions within their exclusive control. (1953); see Hogar also Agua y en Vida el Fanetti, Furthermore, 678 F.2d at 428. Suarez-Medina, it Desierto (1st runs directly Cir.1994) counter to (remedial the clear statement statutes are to be congressional intent in legis- construed).7 the LHWCA broadly Consistent Indeed, following language from instrumentality the House constructing the coffer dams. Report severely statutory interpre- Sometimes, undercuts fact, appears it that these discrete proposed by tation the en court: operating banc merged modes either or alternated frequency with such could not be ascer [NQothingin the is intended to [LHWCA] dero- confidence, tained with even the date of gate responsibilfr vessel’s to take accident, Traylor sup whether the Brothers’ appropriate corrective action where it knows crew, ply barge or its construction team "alter dangerous or should have known about con- ego," custody and control of the deck of the dition. supply barge. Masinter v. Tenneco Oil So, example, longshoreman slips where the (5th Cir.1989) (noting that "the spill on an injured, oil on a deck and is vessel's present case does not involve a proposed amendments to Section 5 would ‘turning over' the control of vessel ato steve permit still an action the vessel for Rather, independent dore or contractor. [the recover, negligence. To must he establish that: contractually vessel owner] was to bound con (1) put foreign the vessel a substance on the drilling operations duct the and remained in deck, there, or knew that it willfully was and or of control gation."). the vessel to effectuate this obli it; negligently (2) failed to remove or the for- eign substance been the deck for such period of time that it have should been discov- 7.Generally, interpretive by operates ered and removed the rule vessel in the to exercise bring injured of reasonable care maritime the workers within the work- under circumstances. 92-1441, H.R.Rep. ers' Cong. p. No. 2nd scheme in 92nd Sess. circumstances 7, Cong. ambiguous. § 1972 where 904 is pp. U.S.Code & Admin.News Insofar as maritime 4698, (emphasis added). deprived 4704 are other common of law rem- 905(a), § edies interpretation under a liberal example, case, 6. For invariably synonymous in the companion en not banc with one is "fa- that Brothers, Inc., employer, Traylor the Reed, in fact was re- vorable" to maritime workers. quired 410, 1349, to supply the barge, use BETTYF the and 373 83 U.S. S.Ct. 10 448 L.Ed.2d alternately, crane, (1963), Jackson, as a transporting 731, means of the operating employees 1419, supplies (1967), however, to the des- L.Ed.2d 488 the Court ignated Narragansett Bay work sites on or interpretive as an made clear that this rule be nor the Scindia Congress the ca- Neither unless dual interpretation,

presumptive recent, fast- the foreseen some have could like demonstrate employers A-K pacity maritime construction in paced the LHWCA evolution purpose behind legislative by instant or disserved the by exacerbated served Castorina which has practices is either be- therefore, would Fanetti, the doubt the Con- Ultimately, the benefit of controversy. plaintiff-employee.8 long provide to the Supreme Court must gress or the present conun- to the response definitive

Ill however, an then, rights of “the Until drum. depend or conclusive controlling precedent not ... should injured longshoreman Absent intent, must we congressional directly by the employed of evidence he was on whether to of care be duties particular independent contractor.” by determine an or employer. See by capacity 532, 103 the dual S.Ct. borne at Laughlin, 462 U.S. & Jones 165-66, 167, 101 at Scindia, S.Ct. U.S. at 2548. (“Section specify did not 1621, 1622 very good reason It is for would the vessel that of acts or omissions simply to the courts did not invite left Much was negligence.... constitute segregation presume adequate an ac through ‘application be resolved incumbent responsibilities workplace-safety ordinary tort law and principles of cepted employers under upon maritime H.R.Rep. (quoting litigation.’”) process LHWCA, merely on some based informal p. 92-1441, Cong. 2nd Sess. 92nd No. vessel-owner de 4698, pp. Cong. & bifurcation Admin.News facto U.S.Code presump- operations. Such construction 4704). legal often overlook fictions Since allow, capac- encourage, dual tion would even promote some order relevant realities lapse into the ity employer operations benefit, my view a find systemic greater place arrangements tacit work types of exception, ing capacity should of dual risk; example, unnecessary employees at rule.9 the presumptive exclusivity provision as intended adjunct reme- nonetheless expand a worker’s covered used capacity that as it suits. Be LHWCA, to dual bar beyond di- total dies under may, Congress the LHWCA legislative amended his- § rectly under 904. afforded decision, Laughlin year & after the Jones questions one amendments tory the 1972 LHWCA particular relating only outright Reed, bars enacted only regarding the continued availabili- but ship employers (e.g., capacity of dual remedy against dual classes ty "unseaworthiness” Guilles, See, builders). at 386. e.g., leaving F.3d un- supra employers, note see Thus, opportunity Congress in 1984 had the interpretive pre- pro-employee Reed's disturbed Laughlin in its & decision the Jones statu- overturn entirety, yet other unresolvable sumption in the face of part. chose to overrule tory ambiguities. congressional Consequently, a intendment subject to suit capacity employers are some ad- assessment 8. I the common-sense share be settled to me to section 905 seems under opinion, supra, that concurring see vanced question. beyond serious unnecessarily cumber- fiction the dual intended, some, Congress agree that cannot but Bank, held, Helvering v. Stockholms Enskilda Laughlin Court should have & or the Jones 53-54, L.Ed. 211 employers suits tort all appropriate (1934) First, ("[Ljegal have unambiguous fictions outright. were barred they when 905(b) (“If place law person in the administration such sentence in second required demands of convenience stevedoring provide are employed services, Easley, Corp. justice.”); v. permitted Pettibone if shall be no such action Cir.1991) ("Even (7th legal have fictions persons Inc., limits.”); Shipping, Chesapeake stevedoring providing services engaged Cruz (3d Cir.1991) (noting that by 227-28 vessel.”) interpretation 932 F.2d prevented any such prac legal [] “for fictions restricting law creates permissi- the maritime By expressly the Court. reasons”); States v. operational United suits, language tical scope unmistak- of such ble Cir.1984) (7th Markgraf, 1187 outright of bar ably implies there no such that is ("[F]or years told been than 200 we have more by their suits pre legal is to proper fictions Laughlin, office 462 that vent, employers. Jones & capacity See create, (citing Second, injustices.”) 530-31, rather than to at 2547-48. 103 S.Ct. U.S. at Blackstone, the Laws Commentaries suggests concurring opinion the 92d William dismissed, (1768)), England present cert. unintentionally Congress created (1985). 84 L.Ed.2d Congress 105 S.Ct. surmises that then in muddle workers, any, if where few understand prevent which to workplace mishaps of the sort capacity employer’s egos their dual experienced alter is by the plaintiff-employee. ultimately responsible, through its own em- Secondly, once a capacity employer ployees, monitoring, reporting for and/or prima has made the facie showing pri- remedying developing hazards. mary responsibility workplace safety most, therefore, At bifurcation should be adequately been delegated to its “construc- defense, available as an affirmative division,” as to tion the Scindia rationale would putative which the dual capacity employer contemplate that the sustained proof. bears the burden of Scindia noted plaintiff-employee have occurred in a work- may vessel place surrender and area not under the “active control” of entrust a discrete work single area to a capacity the dual employer’s “vessel division” capacity (or employer crew) because the latter pre- its during vessel any appreciable sumptively possesses not the hands-on pre-injury period after the hazardous condi- opportunity to monitor workplace vessel con- tion first developed. Scindia, See ditions, but required also the expertise at 101 S.Ct. (noting at 1622 that vessel supervising workplace Keller, safety. may be liable for negligent its conduct “in hand, F.3d at 29-30. On the other since a areas ... under the active control dual capacity may may or not vessel during stevedoring operations”); actually consign workplace safety Fanetti, respon- 678 F.2d at (noting that the 1972 division,” sibilities to its “construction its bi- LHWCA amendments “neither expressly nor if, furcation defense should not be allowed implicitly purport[ to] overrule or modify the instance, the dual traditional rule that longshoreman may responsibilities withheld such from its con- recover the total amount his damages from initio, struction division ab delegated or the vessel if the latter’s is a con- clarity them without authority rea- tributing cause injury, of his if even sonably required to enable stevedore, their reliable dis- whose limited is fixed (“a charge. id. at post-‘turnover’ statute, blame”) partly to (quoting Ed may arise if the vessel owner obligated, Compagnie monds v. Generate Transatlan by contract, custom, statute or tique, 256, 264, monitor 2753, 2758, stevedoring operations purpose (1979)). for the of 61 L.Ed.2d 521 detecting conditions”). remedying unsafe The rationale for requirement such a example, For slipshod arrangements unimpeachable: seems an employer may not place companion now eases before the use the dual capacity fiction to circumvent en banc court were of a type that could do liability by LHWCA tort artificially compart- nothing encourage, develop, let alone the mentalizing knowledge. its actual Id. expertise necessary to enable a dual (“[Rjequiring judges give juries trial in- employer’s “construction division” reliably shipowner’s structions about right rely discharge delegated workplace-safety re- upon expert who, fact, contractor sponsibilities along the lines touted in Scin- schizophrenic there ... pre- dia. dictable effect jury one of baffle- Consequently, my ment.”). view the first step Since dual employers that establishing the actual bifurcation utilize perform needed vessels con- maritime dual-capacity sustain a employer’s affirma- struction engage activities never in a tive demonstrate, defense would be to either turnover of one-time discrete area through an express delegation (as responsibili- single would the capacity vessel ty, by way or implied based, of an delegation owner in the more traditional stevedoring example, on evidence context), dual capac- a rational reasonably factfinder ity employer’s on-site construction division could conclude that the area within supervisors customarily workplace made developed hazardous condition had been safety type of a magnitude decisions jointly interchangeably used the dual adequate to indicate that reasonably capacity employer’s reliable vessel division and its prophylactic measures would be undertaken construction division to such an 175, 178-79, 101 at Scindia, at employer had capacity the dual extent dispute 1626, 1627-28 (noting genuine factual of “active control” surrendered never because was liable whether “division.” to its construction

injury site fix de not to decision ease, that stevedore’s knew in this a remand Thus, there be were days had obvious two been finding for winch fective a reasonable might enable the record remanding further for ly improvident, division” “construction agents of A-K’s before the findings). both cases factual continuously controlled exclusively and however, court, district court banc en hazardous condition the time the barge from on the Casto- made reliance were days when decisions later a few developed until first care of defining the duties for rina standard hatch. open into the fell Morehead employers. capacity upon dual incumbent employer satisfies capacity a dual Once findings to whether the ultimate Since —as in its bur- components two aforementioned duty care oc applicable breaches im- not be could proof, tort den dependent upon necessarily were curred — plaintiff-em- showings posed absent defined, I re would were those duties how (i) acquired employer ployee proceedings case for further the A-K mand developing hazard knowledge of the actual findings on the defen specific factual and/or “ac- employer’s longer within no an area defense of bifur employer’s affirmative dant (ii) that the failure notice tive control” cation. remedy haz- division its construction Scindia, “obviously improvident.” ard was 174-75, at 1625-26. re- Thus, capacity would monitoring areas of all for responsible

main hazards, even developing rely upon its construc-

though it is allowed instance, division, in the first

tion con- under the “active areas within

hazards Jr., DiGIOVANNI, division. its construction trol” of P. Rocco Plaintiff, Appellant, hazard knowledge developing aof Actual corporate imputed to normally be would agents or em- employer if its BROTHERS, INC., TRAYLOR knowledge the de- acquired actual ployees Defendant, Appellee. “obviously im- hazard. Under veloping standard, liability also could 94-1775. provident” No. employer based

imputed to the dual of Appeals, States United to the obviousness extrinsic evidence as on Circuit. First length of time developing hazard unremedied. it remained 1, 1996. Oct. Submitted “obviously improvident” stan- Although the Decided Oct. lesser entails a from imported Scindia dard re- “reasonable care” care than negligence, it nonethe- quired for actionable grave risk

less serves diminish em- designation of virtually any perfunctory Bond, The Thomas Kaplan, B. M. David may allow ployees as “vessel-owner” Boston, MA, Paul V. Group, Kaplan/Bond to shield itself a dual Lovett, Schefrin, Gallogly & Gallogly, Thus, record liability. on remand the all tort brief, Providence, RI, Harnett, Ltd., on finding might enable a present case appellant. open hatch close the decision not to that the Paulsrud, Rothschild, Eric D. “obviously improvi- Andrew days was for a few MO, Louis, L.C., Lewis, Fingersh, St. Rice & for the assuming responsibility dent” even brief, appellee. imputed to A-K. to be decision were 3. The en banc notes facts). mand, inapposite arguably to record some so broad statement need not have announced case Supreme Court or Second Circuit either capacity No dual em- of the duties incumbent (en explicitly implicitly overrules Fanetti. opinion). supra ployers. banc See note Guilles, (citing view, for the Levene purposes 12 F.3d my served this overlooks first, non-longshore proposition explicate the court's limited by such statements: specifically LHWCA through potential barred anoma- rationale reference may bring might amendments —like harbor inequities otherwise be lies and workers— second, rationale; capacity employers under thought suit to undermine Scindia, See, reasoning); supra Laughlin also guidance e.g., the Jones & provide on remand. cf. (en opinion). (setting Section VI banc at 1616 forth U.S. at Cong. p. 92nd 2nd Sess. “unseaworthiness” claims pre-1972 under the Cong. & pp. U.S.Code Admin.News LHWCA as were non-employer vessel own- (noting principles that the “same should Congress ers. meant to eliminate the waste- apply determining of the ves- ful litigation burdening the courts under the single sel” in capacity both and dual pre-1972 LHWCA; viz., the “triangulation” cases). I reasoning find its unpersuasive. litigation the confluence of a First, though longshore courts attempt to dis must worker’s strict liability claim for legislative cern intent based as statute “unseaworthiness” the vessel owner whole, Thinking see Corp. v. Machs. Mel and the vessel owner’s claim for indemnifica- (1st lon Corp., Fin. Servs. tion negligent from a stevedore-employer. Cir.1995), nothing in the LHWCA or its Thus, in all likelihood the Report’s House sparse legislative history provides conclusive reference to principles” “same simply support argument “evisceration” meant henceforth, as a caution that adopted today by virtue the en bane court. As amendments, the 1972 single capacity employers both single capacity would continue to 905(a) retain all and dual protections, their section subject cases were to be approach may Fanetti employers’ limit some same liability principles, not immunity certainly LHWCA but it does not heightened govern- standards of care render the exclusivity provision su ing “unseaworthiness” claims —a differential INS, perfluous. Mosquera-Perez 3 that would otherwise have employ- afforded (1st Cir.1993) (no statutory ees in cases a decided advan- provision interpreted meaning should See, tage litigation. e.g., Shaw v. Railroad less). 557, 565, (1879) 25 L.Ed. 892 Second, (“No Laughlin Jones & itself statute demon- is to be construed altering unlimited, supposedly strates pro- the common law further than its words im-

Case Details

Case Name: Mark Morehead v. Atkinson-Kiewit, J/V

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 10, 1996

Citation: 97 F.3d 603

Docket Number: 94-1581

Court Abbreviation: 1st Cir.