Keller v. United States

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1136

STEVE V. B. KELLER,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, Senior U.S. District Judge]

Before

Torruella, Cyr and Boudin,

Circuit Judges.

Christopher Cole, with whom Michael J. Donahue, Donahue,

McCaffrey, Tucker & Ciandella, David S. Brown, and Sheehan, Phinney,

Bass & Green, were on brief for appellant.

Gretchen Leah Witt, Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, was on brief for appellee.

October 19, 1994

CYR, Circuit Judge. Plaintiff Steven V. B. Keller
CYR, Circuit Judge.

appeals from a belated judgment dismissing his Longshore and

Harbor Workers Compensation Act suit, see 33 U.S.C. 901-950,

905(b) (1993) (LHWCA), to recover damages for injuries sus-

tained in a fall on board a maritime vessel owned by defendant-

appellee United States of America. As appellant has not demon-

strated nor careful scrutiny disclosed that the unprece-

dented decision-making delay in this case rendered the district

court's findings unreliable, we affirm the judgment.

I

BACKGROUND

In 1978, the United States Navy converted the U.S.S.

ARTHUR M. HUDDELL, a World War II Liberty Ship, into a non-

motorized barge for storing and transporting maritime cable

purchased by the Navy from Simplex Wire and Cable Co. The

retrofitted HUDDELL was towed to Simplex's facility at Newington,

New Hampshire, for cable loading in May 1979, where it remained

moored for two years.

The cargo hold had been adapted to house several round

tanks, recessed sixteen feet into the 'tween deck. Simplex hired

temporary employees known as cable loaders to descend into

these tanks from the 'tween deck for the purpose of winding the

incoming "wet" cable in concentric layers onto a spool. During

the HUDDELL's retrofitting, the Navy installed a nonremovable

metal barrier around Tank 4 to prevent workers on the 'tween deck

2

from falling into the tank. The barrier included two uninter-

rupted safety railings located at the top of an access ladder

attached to the interior wall of the tank to permit access to and

from the tank floor. In order to exit the tank, a cable loader

would climb to the top rungs of the ladder, at which point three

options were available for getting from the tank onto the 'tween

deck floor: (1) holding onto a "grab bar," which was attached to

the 'tween deck floor and located six inches from the outside

edge of the tank, then crawling forward and passing under the

lower railing and between the vertical stanchions supporting the

two railings; (2) stepping in a crouched position between the

lower and upper railings of the barrier; or (3) climbing over the

top railing located approximately five feet above the 'tween deck

floor.

At the time Simplex hired Keller as a cable loader, he

was a nonmatriculating sophomore at the University of New

Hampshire. On the night of November 4, 1979, Keller went to a

bar, where he and his friends drank approximately 120-160 ounces

(or two six-packs) of beer between 10:00 p.m. and 11:20 p.m.

Keller reported for work at about 11:30 p.m., and was assigned to

Tank 4 for the first time. He and several coworkers climbed down

the ladder from the 'tween deck into Tank 4 without incident,

where they loaded cable until 2:00 a.m.

When it came time for a work break, Keller climbed to

the top of the ladder, and, according to coworker Rhonda Rossley,

grabbed the lower safety railing with his left hand and placed

3

his left foot on one of the two top rungs of the ladder. Then,

as he began to raise his right leg, he fell backward, neither

attempting to regain his purchase nor crying out, and plummeted

to the tank floor sixteen feet below, landing on his head. When

a Simplex foreman administered first aid, he detected the odor of

alcohol. A blood-alcohol test taken at 3:00 a.m., some three and

one-half hours after Keller had reported for work, revealed a .14

blood-alcohol level, well above the .10 prima facie blood-alcohol

level for demonstrating that a motor vehicle operator is under

the influence. See N.H. Rev. Stat. Ann. 262.A-63 (1963)

(amended 1994, lowering limit to .08). Since the fall, Keller

has remained amnesiac as to all events surrounding the accident.

Following a seven-day bench trial on Keller's claims

against the United States for negligently installing "unsafe"

lighting and railings and an "unsafe" ladder in Tank 4, and for

failing to warn Simplex workers of the potential danger, see 33

U.S.C. 905(b), the district court ultimately awarded judgment

to the United States. See Keller v. United States, No. 81-549-SD

(D.N.H. Dec. 30, 1993).1

II

DISCUSSION

Three principal issues must be addressed. First, did

1Among other things, Keller alleged that (1) the ladder
rungs were wet, slippery, worn, and irregularly spaced; (2) the
metal railings protruded so as to make it likely that a climber
would strike his head; and (3) no warning of these protrusions
was posted on the ladder.

4

the eight-year lapse between the bench trial and entry of final

judgment deprive the trial court findings of the customary

deference on appeal, or violate Keller's constitutional rights to

access to the courts and due process, see generally U.S. Const.

amends. I, V ? Second, did the district court make clearly

erroneous factual findings, or fail to make required findings,

see Fed. R. Civ. P. 52(a), regarding the alleged breach of the

vessel owner's "turnover" duties of care? Third, did the dis-

trict court misdefine a vessel owner's "continuing" duty to

inspect or supervise cargo loading operations for developing

hazards?

A. The Decision-making Delay

First, Keller claims that an unprecedented eight-year

delay between trial and the entry of judgment, coupled with the

trial judge's failure to refresh his recollection through re-

course to a complete trial transcript prior to making findings of

fact, resulted in a violation of his constitutional right to

"access to the courts" and to due process, see U.S. Const.

amends. I, V; Ad Hoc Comm. on Judicial Admin. v. Massachusetts,

488 F.2d 1241, 1244 (1st Cir. 1973) (noting that pretrial delay

might violate constitutional rights if a civil litigant is

"denied for too long his day in court"), cert. denied, 416 U.S.

986 (1974), or in a violation which warrants withholding the

customary appellate deference accorded trial court findings. Cf.

Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 787 (1st Cir. 1990)

(excusing two-year delay); Fernberg v. T.F. Boyle Transp., Inc.,

5

889 F.2d 1205, 1209 (1st Cir. 1989) (excusing two and one-half

year delay). Keller attributes the purported generality in the

district court findings, see infra Section II.B, to this extended

decision-making delay, and implicitly relies on a conclusive

presumption that the court was unable to make more complete and

detailed findings as it could not recall the evidence presented

at trial almost eight years earlier.

Keller concedes that neither Chamberlin nor Fernberg

concluded that prolonged decision-making delay, per se, requires

vacatur. Nor has he cited authority for a per se rule fixing an

outer limit on decision-making delay. Cf. Ad Hoc Comm., 488 F.2d

at 1244 (rejecting per se rule under Federal Constitution for

bounding decision-making delay in state court civil cases); cf.

also, Los Angeles County Bar Ass'n v. March Fong Eu, 979 F.2d

697, 705-06 (9th Cir. 1992) (conducting ad hoc inquiry to deter-

mine whether pretrial delay "exceed[ed] constitutional bound-

aries").

There are sound reasons for abjuring a per se rule even

in cases involving plainly excessive delay. In the first place,

ad hoc appellate scrutiny is indispensable to the core deter-

mination whether delay rendered the decision unreliable. Second-

ly, it is highly doubtful that direct appellate review affords

"an effective means of enforcing district court timeliness." See

Phonetele, Inc. v. American Tel. & Tel. Co., 889 F.2d 224, 232

(9th Cir. 1989) (delay approximating four years), cert. denied,

112 S. Ct. 1283 (1992). Thirdly, remands for reconsideration or

6

retrial yield yet further delays, exacerbating the burdens on

litigants. For these reasons, and notwithstanding our parallel

supervisory responsibility, see, e.g., 28 U.S.C. 1651 (mandamus

jurisdiction); Petition of Henneman, 137 F.2d 627, 630 (1st Cir.

1943), we consider it critically important that appellate atten-

tion remain focused on ensuring that trial court findings,

despite inordinate decision-making delay, not be squandered

unless their reliability has been undermined. We therefore opt

for careful de novo scrutiny of the entire record with a view to

whether the prolonged delay in reaching a decision rendered the

trial court's findings of fact unreliable to the degree that

vacation of its judgment is warranted despite the admittedly

severe impediments to reliable fact-finding in the event of a

remand for new trial. Cf. Barker v. Wingo, 407 U.S. 514, 532

(1972) (long pretrial delays threaten to impair criminal defense,

lest witnesses die, disappear, or suffer memory loss or distor-

tion).

Notwithstanding the eight-year interval between trial

and judgment, for which we have been unable to glean adequate

explanation, neither Keller nor the record on appeal suggests

that the district court did not perform its decision-making

responsibility with care. As Keller's several requests to

expedite the decisionmaking process acknowledge, the district

court was in no sense indifferent to its responsibility to render

a decision but encountered extraordinary docket pressures at the

same time it was required to give precedence to its criminal

7

caseload. See Speedy Trial Act, 18 U.S.C. 3161 (1993).

Nor would we well serve the interests of justice, or

the integrity of the decision-making process, were we to presume

that the absence of a complete trial transcript rendered the

district court incapable of determining matters relating to

witness demeanor and credibility, or to recollect or reconstruct

trial testimony, through other reliable means (viz., trial notes,

voluminous trial exhibits). See Keller, No. 81-549-SD, slip op.

at 16 ("The court in the course of rendering its decision has

reviewed all of the exhibits . . . ."). After all, the responsi-

bility incumbent on an appellant to substantiate a challenge to

the sufficiency of trial court findings is not met merely with

conclusory allegations that the trier of fact could not have

recalled or reconstructed the evidence without a complete trial

transcript. Moreover, this case does not require us to speculate

as to the reliability of the trial judge's findings, since a

complete trial transcript is available for the purpose. Thus, as

regards the claim that the trial judge's findings themselves

evince prejudice from the extended decision-making delay, we test

Keller's thesis as in any other case, by inquiring whether the

findings were infected with "clear error" based on our own

painstaking scrutiny of the entire trial record, including a

complete trial transcript. See Interstate Commerce Comm'n v.

Holmes Transp., Inc., 983 F.2d 1122, 1129 (1st Cir. 1993) (noting

that appellate court must defer to trial court fact-finding

unless, after reviewing entire record, it is left with the

8

"definite and firm conviction that a mistake has been commit-

ted").

B. The Merits

The district court made seven findings central to the

merits-related challenges advanced on appeal:

(1) Keller was a "longshore worker" to whom defendant
owed a duty of "ordinary care," under LHWCA sec-
tion 905(b),2 to provide a vessel in such condi-
tion that "an expert and experienced stevedore
[would] be able to exercise reasonable care to
carry on its cargo operations with reasonable
safety," and a duty to warn the stevedore of any
latent safety defects on the vessel not reasonably
discoverable by an "expert and experienced" steve-
dore, Keller, No. 81-549-SD, slip op. at 9-10

(quoting Scindia Steam Navigation Co. v. de los

Santos, 451 U.S. 156, 166-67 (1981));

(2) Defendant's expert witness, Jan Bijhouwer, relying
on "applicable" maritime safety standards in for-
mulating his opinion that the HUDDELL's ladder
design was "safe," proved "more persuasive" than
plaintiff's competing expert, id. at 13;

(3) No eyewitness observed the precipitating cause of
the fall (e.g., whether Keller hit his head on a

safety rail), id. at 11-12;

2Section 905(b) provides in pertinent part:

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 .
. . , and the employer shall not be liable to
the vessel for such damages directly or in-
directly and any agreements or warranties to
the contrary shall be void. . . . The liabil-
ity of the vessel under this subsection shall
not be based upon the warranty of seaworthi-
ness or a breach thereof at the time the
injury occurred.

33 U.S.C. 905(b).

9

(4) Even if the design of the ladder deviated from
"applicable" maritime safety standards in certain
respects, there was insufficient evidence that
these deviations caused Keller's fall. No other

accidents occurred on this ladder, despite the
fact that no less than twelve persons climbed up
or down the ladder under identical conditions
immediately prior to and after Keller's accident,

id. at 13;

(5) Keller's blood alcohol level of .14, see supra at

p. 4, might have been a "significant [causal]
factor" in the accident, Keller, No. 81-549-SD,

slip op. at 15;

(6) If any design deviation constituted a potential
"hazard," such hazard was obvious (i.e., not la-

tent), and could be "anticipate[d]" by a stevedore
"if reasonably competent in the performance of his
work," id. at 13-14; and

(7) Even if custom had required that defendant place a
representative aboard the HUDDELL to monitor cargo
loading, "a custom-generated duty to supervise and
inspect does not transfer to the ship owner a duty
to eradicate dangers reasonably known to and man-
aged by the stevedore," id. at 14.

1. The Vessel Owner's "Turnover" Duties of Care

a. Applicable Law

The definition of a vessel owner's duties of care under

LHWCA 905(b) is a matter of law for the district court in the

first instance, see Elberg v. Mobil Oil Corp., 967 F.2d 1146,

1149 (7th Cir. 1992); Ludwig v. Pan Ocean Shipping Co., 941 F.2d

849, 850 (9th Cir. 1991), subject to de novo review, see Williams

v. Poulos, 11 F.3d 271, 278 (1st Cir. 1993). Keller claims that

by failing to distinguish between "turnover" and "continuing"

duties, the district court misconstrued the standard of care

incumbent upon a vessel owner under LHWCA 905(b).

As it pertains to Keller and Simplex, in its current

10

incarnation the LHWCA is a strict liability statute. A longshore

or harbor worker such as Keller, who incurs a work-related

injury, may recover disability and medical compensation from the

stevedore-employer (viz., Simplex) even though the stevedore was

not at fault. Conversely, an award of compensation under the

LHWCA, such as Keller recovered from Simplex, is the longshore

worker's exclusive remedy against the stevedore-employer. See 33

U.S.C. 904, 905(a); Williams v. Jones, 11 F.3d 247, 250 n.1

(1st Cir. 1993).

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. See

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 (1946); Ellen M.

Flynn & Dale S. Cooper, 1A Benedict on Admiralty 91, at 5-2 to

5-4 (7th ed. 1993) [hereinafter: Benedict on Admiralty]. 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. In 1972, the LHWCA remedial

scheme underwent dramatic adjustment. Congress greatly increased

11

the amount of compensation recoverable from the stevedore-employ-

er, repudiated the warranty of "seaworthiness" as a basis for

third-party actions against the vessel owner, required the

injured longshore worker to prove negligence on the part of the

vessel owner, and precluded a negligent vessel owner from obtain-

ing indemnification from the stevedore-employer. See 33 U.S.C.

905(b); supra note 2. These changes were designed "to shift more

of the responsibility for compensating injured longshoremen to

the party best able to prevent injuries: the stevedore-employer."

Howlett v. Birkdale Shipping Co., 114 S. Ct. 2057, 2063 (1994)

(emphasis added). Consequently, at the present time the duties

of care incumbent upon a vessel owner fall into two broad catego-

ries: (i) so-called "turnover" duties those which are to be

discharged before the owner consigns the vessel to the stevedore

for cargo loading operations and (ii) so-called "continuing"

duties, such as inspection, supervision or intervention, which

may persist after the stevedore commences cargo operations. See

Scindia, 451 U.S. at 166-67, 172-76. There are two distinct sub-

categories of "turnover" duty, depending on whether an unreason-

ably hazardous condition on board the vessel is patent or latent.

(i) The Vessel Owner's "Duty of Safe Condition"

First, the vessel owner's "duty of safe condition" is

met if the condition of the vessel when entrusted to the steve-

dore poses no reasonably foreseeable risk to any worker, even

assuming a complete failure on the part of the stevedore-employer

12

to monitor the vessel workplace for safety. On the other hand,

because longshoring is particularly dangerous, in many respects

inherently so, see Johnson v. A/S Ivarans Rederi, 613 F.2d 334,

339 n.5 (1st Cir. 1980), few on-board appurtenances would ever

satisfy such an exacting threshold. Accordingly, the "foresee-

ability" standard to which a vessel owner is held under its "duty

of safe condition" has been relaxed: "ordinary care under the

circumstances" now governs the owner's discharge of its duty to

turn the vessel over "in such condition that an expert and

experienced stevedoring contractor, mindful of the dangers he

should expect to encounter, arising from the hazards of the

ship's service or otherwise, will be able by the exercise of

ordinary care" to conduct cargo operations "with reasonable

safety to persons and property." See Federal Marine Terminals,

Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18 (1969)

(emphasis added) (citation omitted).

Unlike the vessel owner, however, the stevedore is

subject to detailed legislative and administrative prescriptions

for affording its workers a "safe" workplace. See, e.g., 33

U.S.C. 941 (1993); 29 C.F.R. 1918.1-1918.106, 1918.25

(1993) (implementing regulations for "ladders"); see also Scin-

dia, 451 U.S. at 170. Thus, a vessel owner "reasonably" may rely

on the stevedore-employer's supervision of its own employees in

their interaction with and avoidance of "obvious" or "anticipat-

ed" hazards foreseeably associated with stevedoring on board the

owner's vessel. See, e.g., Polizzi v. M/V Zephros II Monrovia,

13

860 F.2d 147, 149 (5th Cir. 1988); Jupitz v. National Shipping

Co., 730 F. Supp. 1358, 1362 (D. Md. 1990) (noting that vessel

owner's duty is "to turn over the cargo area in a reasonably safe

condition; . . . not to turn over the area completely free of all

hazards") (emphasis added). Conversely, under current law a

vessel owner may be held liable, even for "obvious" or "antici-

pated" hazards, upon a showing that the owner effectively dis-

abled the stevedore-employer or the longshore worker from taking

ameliorative measures to avoid the hazard. See Teply v. Mobil

Oil Corp., 859 F.2d 375, 378 (5th Cir. 1988); Theriot v. Bay

Drilling Corp., 783 F.2d 527, 536 (5th Cir. 1986).

(ii) The Vessel Owner's "Duty to Warn"

The second sub-category of turnover duty is the "duty

to warn" prior to turnover, which requires the vessel owner to

alert the stevedore-employer to any latent or concealed defect

including "any hazards on the ship or with respect to its equip-

ment" 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 opera-

tions[,] 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." Scindia, 451 U.S. at 167 (emphasis

added).

Although Keller concedes that the trial court correctly

quoted verbatim from the Scindia exegesis relating to these two

turnover duties, Keller, No. 81-549-SD, slip op. at 10-11, he

14

argues that the court focused its factual inquiry exclusively on

whether the defendant vessel owner owed Keller a "continuing"

duty of intervention. See Brief for Appellant at 27. We cannot

agree. Though neither the district court, nor for that matter

the Scindia Court, used the term "turnover duty," the district

court focused directly on the two issues material to the perti-

nent inquiry: (i) "[c]entral to the issue of legal fault in this

litigation is whether the [original design of the] ladder at

issue was causally defective," in light of "applicable safety

standards" and other evidence proffered by Keller, Keller, No.

81-549-SD, slip op. at 13, and (ii) whether "the notice given by

the presence of any such hazard" rendered it obvious, id. at 14.

Thus, the district court clearly identified and applied the

proper duty of care. We turn then to examine its factual find-

ings.

b. Factual Findings on "Turnover" Duties

Keller asserts two challenges to the district court

finding that the United States did not breach its turnover

duties. First, he argues that the pivotal finding that the

testimony of Jan Bijhouwer, defendant's expert witness on marine

design, was "more persuasive" than the testimony of plaintiff's

expert is so conclusory that no evidentiary basis for the

finding can be gleaned from the record. See Fed. R. Civ. P. 52

("In all actions tried upon the facts without a jury . . . the

court shall find the facts specially and state separately its

conclusions of law thereon . . . .") (emphasis added).

15

The crux of our ad hoc Rule 52(a) inquiry is whether

the trial court findings are precise and detailed enough to

enable effective appellate review. See Knapp Shoes, Inc. v.

Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 1994). As

long as the factual bases essential to the court's special

findings are reasonably discernible from the record, the dictates

of Rule 52(a) are met. Id. (noting that the "'judge need only

make brief, definite, pertinent findings . . . there is no

necessity for over-elaboration of detail'") (citation omitted).

Contrary to Keller's contention, the district court did not begin

and end its analysis with the observation that Bijhouwer's

testimony was "more persuasive," but expressed one very important

rationale for so finding: Bijhouwer was the only expert witness

who based his opinion on "applicable [maritime] safety standards"

and on the possible consequences any "deviations" from those

standards might have upon worker safety. Further, the court

proceeded to point out that Keller had produced no competent

evidence that the Tank 4 ladder was defective in any way. These

"special findings" met the Rule 52(a) requirements.

Keller next argues that the trial court's findings

(e.g., that the ladder design was "generally safe," or its

hazardous features, if any, should have been obvious to the

stevedore's employees) were based upon inherently unreliable or

inadmissible evidence, or its refusal to admit or consider

competent evidence entitled to greater weight. Whether the

defendant breached a duty of care is a question of fact, which we

16

review only for clear error. See Fed. R. Civ. P. 52(a); Martinez

v. Korea Shipping Corp., 903 F.2d 606, 609 (9th Cir. 1990);

Miller v. Patton-Tully Transp. Co., 851 F.2d 202, 205 (8th Cir.

1988). Clear error review presupposes appellate deference to

trial court findings of fact unless we are left with the "defi-

nite and firm conviction that a mistake has been committed."

Holmes Transp., Inc., 983 F.2d at 1129. Particular deference is

due trial court findings dependent on witness credibility, see

DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991), to the

degree that error is seldom considered "clear" unless the credi-

bility assessments were based on testimony which was inherently

implausible, internally inconsistent, or critically impeached.

See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985);

Rivera-Gomez v. de Castro, 900 F.2d 1, 4 (1st Cir. 1990).

Under LHWCA 905(b), the plaintiff must prove, by a

preponderance of the evidence, both proximate causation and a

breach of the applicable duty of care. See Bjaranson v. Botelho

Shipping Corp., 873 F.2d 1204, 1208 (9th Cir. 1989); Biggs v.

Logicon, Inc., 663 F.2d 52, 53-54 (8th Cir. 1981). Since action-

able negligence under the LHWCA depends on the fluid concept of

"reasonableness" in the circumstances, the LHWCA provides little

substantive guidance on vessel-owner conduct violative of the

various duties of care. See Scindia, 451 U.S. at 165-66 ("Sec-

tion 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

17

law and the ordinary process of litigation.'") (citation omit-

ted). Generally speaking, the fact-finder should assess the

"reasonableness" of the vessel owner's conduct "by balancing the

usefulness to the [vessel] of the [allegedly] dangerous condition

and the burden involved in curing it against the probability and

severity of the harm it poses." Johnson, 613 F.2d at 348 (empha-

sis added); see also Miller, 851 F.2d at 205 (same). And, even

though "proof of [the vessel owner's] adherence to an industry

practice or custom is not dispositive on the issue of negli-

gence," Martinez, 903 F.2d at 610 (citations omitted) (emphasis

added), often the plaintiff's case will "depend on the existence

of statutes, regulations and customs allocating responsibility

for repairs of defective equipment [between the owner and steve-

dore]," since these sources are probative of the risks a "reason-

ably competent" stevedore should anticipate and manage. See 1A

Benedict on Admiralty 94, at 5-25 (emphasis added); see also,

e.g., Martinez, 903 F.2d at 609 (noting, on review of summary

judgment, that "[vessel owner] . . . submitted the affidavits of

a licensed ship master and a naval architect, who claimed that

the platform is standard in the industry and meets international

requirements").

Keller challenges the cornerstone finding by the

district court: that Bijhouwer's expert opinion was founded on a

"persuasive" appraisal of "applicable" industry standards. The

gist of Bijhouwer's testimony was that he personally inspected

the Tank 4 ladder after Keller's fall, measured its dimensions,

18

and climbed out of Tank 4 several times by pulling himself under

the lower railing with the aid of the metal grab bar mounted in

the 'tween deck floor. In twenty-four years as a marine survey-

or, approximately five to ten percent of the vessels Bijhouwer

had encountered were equipped with ladder-railing configurations

similar to Tank 4. Bijhouwer found the Tank 4 ladder "easy" to

climb, and "perfectly safe." He consulted two fixed-ladder

safety standards governing "shipboard installation as opposed to

land-based installation": the Maritime Administration standard

(MARAD) (1965) and the American Society for Testing and Materials

standard (ASTM) (1983). In Bijhouwer's opinion, both standards

confirmed that the Tank 4 ladder-railing design met or surpassed

applicable maritime safety standards.3

Finding no merit in Keller's other challenges to the

district court's credibility determinations,4 we focus on two

3Minor measurement "deviations" between MARAD-ASTM and Tank
4 included, inter alia: the facial width of ladder rungs (slight-

ly over 14 inches; standard 14 inches); rungs (1-1/2 inches by
1/2 inch; standard 3/4 inch by 3/4 inch); and toe clearance
behind rungs (5 inches at sides, 14 3/4 inches in middle; stan-
dard minimum 5 inches).

4For example, Bijhouwer testified that a person who was
exiting Tank 4 for the first time might be able to do so "blind-
folded." Keller characterizes this testimony as patently in-
credible, especially in view of other testimony that Tank 4 was
"more difficult" to exit than the tanks on other vessels (e.g.,

the FURMAN) then moored at Simplex. On redirect, however,
Bijhouwer clarified that the ladder and grab bar combination
installed in Tank 4 was so well designed that, after one trip up,

a climber could use it "blindfolded." Bijhouwer's redirect
testimony would enable a reasonable inference that Simplex, once

it became acquainted with the Tank 4 configuration following
turnover, was in no sense disabled from informing its employees
about at least one safe method of exiting the tank. Moreover,
the fact that other witnesses testified that the Tank 4 ladder

19

related contentions. First, Keller quarrels with the district

court ruling that ASTM was an "applicable" industry standard. He

points out that the ASTM was promulgated several years after

Keller's fall, for the purpose of facilitating inter-vessel

exchangeability of component parts, rather than promoting safety

concerns. And, because Bijhouwer conceded at trial that MARAD

required an unobstructed gap in the Tank 4 railing, Keller

contests the district court ruling that MARAD was an "applicable"

industry standard and disagrees that the Tank 4 ladder substan-

tially conformed with the MARAD design.

These contentions cannot withstand scrutiny. Keller

does not explain why a maritime safety standard like ASTM would

be wholly "inapplicable" simply because it had been promulgated

after the accident. In this context, "applicability" connotes no

statutory or regulatory compulsion to conform with a particular

standard. See infra note 5. Rather, "applicability" connotes

mere relevance: that ASTM had some tendency to make it more or

less likely that the defendant and Simplex would have regarded

the ASTM norm as a minimum safety standard for the industry.

There is no evidence that general maritime safety standards

changed so dramatically between 1979 and 1983 that ASTM was

rendered wholly immaterial as an indicator of 1979 industry

was "more" difficult to climb did not compel a finding that it
was defective, since (1) these lay witnesses testified to their
personal experiences only, not to safety design; and (2) this
inapposite comparison (i.e., "more difficult" as opposed to "too

difficult") would not show that the Tank 4 ladder was "unsafe,"
only that other Navy ships moored at Simplex had "safer" ladders
(i.e., exceeded applicable maritime safety standards).

20

safety practices, see Fed. R. Evid. 401, nor that ASTM was based

exclusively on post-1979 data. Further, in response to Keller's

contention that ASTM's purpose was merely to facilitate the

interchangeability of component parts, we note Bijhouwer's

testimony that though the maritime standards he relied upon

(including ASTM) might not be exclusively safety-oriented, there

were "safety-related aspects to all of [these industry] stan-

dards." Thus, it was not clear error to find that ASTM possessed

some probative value in determining industry safety practices in

1979.

Even if ASTM were deemed wholly "inapplicable," howev-

er, it was but one of two independent maritime safety standards

on which Bijhouwer relied. Keller therefore would have had to

hobble both the ASTM and the MARAD standards in order to prevail.

Viewed as an enumeration of minimum safety recommendations for

the industry, MARAD is conspicuously silent on many matters

Keller considered pertinent to the defendant vessel owner's duty

of care, including any unequivocal recommendation that a gap be

left in safety railings which extend around the top of a fixed

ladder. Bijhouwer testified that MARAD recommended such a gap

(or removable railings) only as needed to facilitate cargo

loading via the deck on which the railings are located. Here, of

course, the cable was not loaded into Tank 4 across the HUDDELL's

'tween deck where the safety railings were located, but from the

main deck, down through an upper hatch and into Tank 4. He

further testified that MARAD recommends such an "access opening"

21

only in "deck" railings near ladders, citing two plausible

reasons that this would not indicate that a complete gap should

have been left in the Tank 4 railings: (1) the MARAD provision

refers exclusively to railings on the periphery of the main or

weather deck of the vessel, not to railings on lower decks, like

the 'tween deck; and (2) the undefined term "access opening"

might reasonably mean any aperture through which a person could

exit safely, such as the 27-inch space under the lower railing on

Tank 4. Bijhouwer's testimony likewise was bolstered by OSHA

regulations, which presumably impose a heightened obligation on

the stevedore to provide its employees with a "safe" workplace.

See 33 U.S.C. 941. Yet even the OSHA standards do not dis-

courage the ladder configuration found on Tank 4. See 29 C.F.R.

1918.25. Thus, Keller failed to weaken Bijhouwer's interpreta-

tion and application of MARAD.

To the extent that the technical aspects of MARAD

invited expert interpretation, the district court was entitled to

rely on Bijhouwer's testimony, especially since Keller tendered

no persuasive counter-interpretation:

Compliance with the customs and practice of
an industry, while relevant and admissible[,]
is not necessarily due care. It may, howev-
er, be evidence of due care and when relied

on by the fact finder "his findings will not
be lightly disregarded unless there is a par-

ticularly strong showing of the unreasonable-

ness of the customary practice."

1 Martin J. Norris, The Law of Maritime Personal Injuries 9:5,

at 453 (4th ed. 1990) (quoting Cia Maritima Del Nervon v. James

J. Flanagan Shipping Corp., 308 F.2d 120, 125 (5th Cir. 1962)

22

(emphasis added)); McGann v. Compania de Navegacio Maritima

Netumar, 586 F. Supp. 1568, 1571 (D. Md. 1984) (evidence that

ladder was "typical" or "standard" is probative of vessel owner's

nonnegligent conduct). Van Dissell, Keller's expert witness,

conceded that he never consulted the ASTM standards, and neither

referenced nor analyzed MARAD before surveying the Tank 4 ladder.

We think it clear that this effort fell well short of the "par-

ticularly strong showing," see Cia Maritima Del Nervon, 308 F.2d

at 125 (emphasis added), needed to demonstrate clear error in the

trial court's decision to credit Bijhouwer's expert recommenda-

tions relating to an "applicable" industry "standard."

Keller concedes that van Dissell relied on three land-

based safety standards, or at least on safety standards not

intended for applications distinctively maritime in nature:

Department of Defense Military Standard Human Engineering Design

Criteria for Military Systems, Equipment and Facilities, MIL-STD-

1472 (1970); American National Standards Institute's (ANSI)

Standard Safety Code for Fixed Ladders (1956 & 1974); and OSHA

Standards for Fixed Ladders, 29 C.F.R. 1910.27 (1975).5 In

general, differentials between land-based and maritime design and

5Keller did not contend that these OSHA standards directly

applied to defendant. Therefore, even a failure to comply with
the OSHA standards would not entitle Keller to claim negligence
per se. And in fact, the OSHA standards were not directly

applicable to defendant, because (1) they do not pertain to
maritime employment of longshore and harbor workers, cf. 33

U.S.C. 941; 29 C.F.R. 1918.1-1918.106; and (2) they regulate
only the obligations of employers, see Martinez, 903 F.2d at 611;

Bandeen v. United Carriers (Panama), Inc., 712 F.2d 1336, 1339-40

(9th Cir. 1983) (same), and defendant was not Keller's employer.

23

safety codes are necessitated by the unique spatial and weight

constraints on working maritime vessels. The van Dissell bench-

marks undoubtedly set more stringent safety specifications than

the MARAD model, and thus were relatively "safer," but Scindia

inquires only whether Simplex could have anticipated that the

vessel owner would consign a vessel with these heightened land-

based safety specifications. By contrast, Bijhouwer testified

that shipyards commonly consult standards, such as MARAD, in

designing and constructing merchant vessels, rather than the more

generalized military specifications like MIL-STD-1472; and,

further, that he had encountered the Tank 4 ladder configuration

in at least five to ten percent of the merchant vessels he had

surveyed.

Second, Keller attacks, as internally inconsistent and

inherently implausible, the Bijhouwer testimony that the 27-inch

space beneath the lower safety railing on Tank 4 afforded an

adequate "access opening" according to MARAD. Bijhouwer testi-

fied on deposition that a minimum vertical gap of twenty-five

inches beneath the lower railing would be a "safe" "access

opening" for exiting Tank 4. At trial, however, Bijhouwer

conceded that the grab bar, which was 4 1/8 inches high, was set

into the 'tween deck floor six inches from the ladder and the rim

of Tank 4. Confronted with this configuration indicating an

actual clearance of 22 7/8 inches Bijhouwer nonetheless stated

that the grab bar posed no hazardous interference. He explained

that there would remain at least a 25-inch clearance directly

24

beneath the lower railing where it passed over the six-inch ledge

of the tank, and that this clearance was needed only to accommo-

date the height of the climber's body as he placed his knee up

onto the tank ledge.6 In that position, the climber would

attain maximum vertical posture (measured from stooped

head/shoulders to knee), at which point his body would flatten

out to less than twenty-five inches as he pulled himself forward

and through the narrower opening between the top of the grab bar

and the lower railing.7 While Keller characterizes these

movements as dangerously acrobatic, it is well recognized that

longshore workers are called upon to cope with uncomfortable,

cramped positions in the close confines of a vessel. See, e.g.,

Bjaranson, 873 F.2d at 1208 ("the men, according to the testimo-

ny, could have squeezed around the leg of the crane" to avoid the

6Keller argues that the method of egress endorsed by Bij-
houwer was unmanageable because the climber would have to place
his knee on a narrow coaming that raised 7/8 inches at the edge
of the tank, which Bijhouwer conceded would "cut" into the
climber's knee. In fact, however, Bijhouwer testified that a
climber could place his knee "momentarily" between the coaming

and the grab bar, not on top of the coaming. When asked if the

coaming would then "dig[] into your knee," Bijhouwer simply
responded that "[y]ou can feel the coaming."

7Keller likewise relies on Bijhouwer's admission that at the
time he first formulated his opinion that the ladder design was
safe, he had not considered the actual conditions (e.g., wet,

cold, artificial lighting) in Tank 4 on the night of the acci-
dent. Nevertheless, when asked at trial, Bijhouwer testified
that those conditions did not alter his opinion as to the safety
of the ladder design. He explained, for example, that even
though Keller was wearing heavy clothing at the time, the clear-
ance beneath the lower safety railing would be adequate for a
climber emerging from the tank, because clothing might catch on

the railing only as a climber was backing into the tank, not as

he was pushing forward.

25

hazard) (emphasis added). Further, Bijhouwer testified that the

lower railing served both (i) a safety function, since it would

protect an exiting climber from falling backward into the tank,

and (ii) a utilitarian purpose, since it would provide Simplex

with the option to spool wire into Tank 4 above the 'tween deck

level. See Johnson, 613 F.2d at 348 (trier of fact may consider

"the usefulness to the [vessel] of the [allegedly] dangerous

condition") (emphasis added); see also Miller, 851 F.2d at 205

("The court found that the toolbox was a necessary piece of

equipment for the barge and that it was situated reasonably to

keep it out of the way of the workers on the barge. . . . Simi-

larly, the court found that whatever hazard was presented by the

counterweight was justified by its important safety purpose of

keeping the toolbox lid from snapping shut unexpectedly.")

(emphasis added).

According to Bijhouwer, therefore, the Tank 4 ladder

incorporated at least one "safe" method of egress compatible with

MARAD (i.e., "under" the lower safety railing); hence, the vessel

owner had not provided Simplex with an "unavoidably" hazardous

ladder. See Teply, 859 F.2d at 378. Thus, even if MARAD had

been the only "applicable" industry standard on which Bijhouwer

could rely, it afforded sufficient support for the district court

finding that the defendant vessel owner had discharged its

turnover duty of safe condition, on the ground that Simplex

should have "anticipated" and managed the equipment as designed,

whatever its inherent, but avoidable, risks.

26

Keller further contends that the trial court erred in

finding that any potential risks attending the use of the Tank 4

ladder were "obvious." He relies on (i) Bijhouwer's testimony

that it would be "reckless" for Simplex employees to attempt to

exit Tank 4 by passing between the two safety railings or "over"

the top railing, and (ii) evidence that Simplex employees contin-

ued to use both these methods after turnover. Keller argues that

this latent design "defect" generated the independent turnover

duty that the vessel owner warn Simplex or its longshore workers

of the hidden danger. This contention, too, is flawed.

First, Keller incorrectly assumes that by adopting

Bijhouwer's testimony that MARAD and ASTM were "applicable"

safety standards, the trial court likewise necessarily credited

Bijhouwer's expert opinion (not based on MARAD) that it would

have been reckless to utilize the two other methods of egress.

On the contrary, however, the court did not adopt that portion of

the Bijhouwer testimony but went on to note instead that Keller

had proffered no evidence of any design defect whatsoever in the

Tank 4 ladder; for example, that any accident had ever occurred

on the ladder when persons other than Keller used these two

alternate methods under substantially similar conditions (wet,

cold, artificial lighting). See, e.g., McKinnon v. Skil Corp.,

638 F.2d 270, 277 (1st Cir. 1981) (subject to Rule 403 balancing,

evidence of prior accidents under similar conditions admissible

to show design defect); cf. Martinez, 903 F.2d at 609 (at summary

judgment, vessel owner met burden by "offer[ing] evidence that

27

during the vessel's seven years of operation no longshoreman ever

fell into one of the ladder openings on the lashing platforms and

no complaints were lodged concerning the platforms"); McGann, 586

F. Supp. at 1571 ("[N]o other accidents or complaints concerning

this type of ladder have been reported . . . ."); accord Pittman

v. Littlefield, 438 F.2d 659, 662 (1st Cir. 1971) (absence of

other accidents under substantially similar conditions may be

probative of "safe" condition) (applying New Hampshire law).

Second, even if the district court had agreed with

Bijhouwer's assessment of the risks attending the two alternate

methods of egress, Bijhouwer never intimated that those methods

posed hazards not readily foreseeable by Simplex. Scindia, 451

U.S. at 167 (noting that duty to warn exists only if "defect"

"would not be obvious to or anticipated by [stevedore] if reason-

ably competent in the performance of his work"). The alleged

design defect (two fixed railings) was in no sense latent.

Unlike a hairline fracture in the rung of a ladder, for example,

which might render the ladder configuration not reasonably safe

for any unwarned usage, the juxtaposition of the two railings and

the absence of posted instructions put Simplex on notice that its

employees, unless instructed otherwise, might attempt to exit

Tank 4 in any of three ways. If Simplex had deemed Bijhouwer's

"under" method the only "safe" one, it could have instructed its

employees not to use the two alternate methods. Or if it consid-

ered all three methods "unsafe," it could have removed the

railings between the stanchions at the top of the ladder.

28

Relying on the fact that he was never in Tank 4 prior

to the night of the accident, Keller wrongly presumes that

obviousness and latency are measured by what a relatively inexpe-

rienced longshore worker might observe. Instead, the Scindia

standard turns primarily on what an "experienced" stevedore, like

Simplex, reasonably would be expected to notice. By the same

token, if the district court correctly found that even Simplex

longshore workers reasonably could be expected to recognize any

such defects, it surely follows that their more experienced

stevedore-employer should have discovered the defects during the

course of its extended two-year stewardship of the HUDDELL. See

Bjaranson, 873 F.2d at 1209 n.7 ("The condition of the ladder was

apparent and obvious when Bjaranson's employer, the stevedoring

contractor, boarded the ship and assumed the control of the cargo

operation. Although the condition may not have been obvious to

Bjaranson at night, the fact that the condition was obvious to

his employer eliminated whatever duty there may have been upon

[the vessel owner] to warn the individual employees.") (emphasis

added).

Next, Keller contends that the district court improper-

ly considered his blood-alcohol level at the time of the acci-

dent, since the doctrine of pure comparative fault would not

permit contributory negligence to defeat Keller's LHWCA claim,

but only to abate damages. See Johnson, 613 F.2d at 347; 1A

Benedict on Admiralty 56, at 3-33. First, the district court

explicitly acknowledged that had Keller proven that the defendant

29

vessel owner was a cause of Keller's accident, the court could

not have treated Keller's blood-alcohol level as a total bar to

recovery under the LHWCA. See Keller, No. 81-549-SD, slip op. at

15 ("The court is, of course, aware that were negligence found on

the part of the ship owner, the intoxication of Keller . . .

would not serve necessarily to totally disqualify him from

recovery.") (emphasis added). Second, under the analogous

comparative fault doctrine for LHWCA compensation awards, a

stevedore may defend by proving that the longshore worker's

injuries were caused "solely" by his intoxication, cf. 33 U.S.C.

903(c). While the longshore worker initially enjoys a rebutta-

ble presumption against such a finding, id. 920(c), the steve-

dore's defense is not unprovable. See, e.g., Walker v. Univer-

sal Terminal & Stevedoring Corp., 645 F.2d 170, 173 (3d Cir.

1981) (finding 903(c) intoxication defense established, and

noting that the rebuttable presumption "falls out of the case"

once stevedore proffers "substantial evidence" that longshore

worker's intoxication was sole cause of injury or death).

Similarly, in a section 905(b) action, the trial court

may assess the quality of the vessel owner's rebuttal evidence

where the longshore worker failed to demonstrate a vessel "de-

fect"8 and where the vessel owner has proffered "substantial"

8Given the Scindia standard, evidence of Keller's high

blood-alcohol level cannot be wholly divorced from the threshold
question whether a defective design rendered the Tank 4 ladder
"unreasonably" dangerous. A written policy forbade Simplex
workers from reporting to work intoxicated. Thus, Keller's
blood-alcohol level would be relevant to whether the ladder con-
stituted an "unreasonably" dangerous condition, since the vessel

30

evidence of the longshore worker's intoxication. Here, the trial

court's consideration of the blood-alcohol level followed direct-

ly upon its observations concerning Keller's failures of proof:

(1) the absence of persuasive expert testimony that the Tank 4

ladder design was so inferior to anticipated safety standards

that the defendant vessel owner could not entrust the equipment

to the stevedore's able charge; and (ii) the absence of evidence

of other accidents on the ladder under substantially similar

conditions. In this context, we interpret these trial court

observations as an acknowledgment not only that Keller utterly

failed to carry his burden of proof but that the only credible

evidence of possible causation (i.e., Keller's heavy drinking

earlier in the evening and his high blood-alcohol level one hour

after the fall) in no respect implicated the defendant vessel

owner. See supra note 8.

Keller further claims that but for two items of evi-

dence which the district court improperly ignored or excluded, we

would be compelled to conclude that the district court committed

clear error. First, the district court excluded the deposition

testimony of eyewitness Rhonda Rossley, who expressed the opinion

that Keller had hit his head on a railing prior to the fall.

Nonexpert-opinion testimony is permitted only if "(1) rationally

based on the perception of the witness and (2) helpful to a clear

owner, in turning over the Tank 4 ladder, reasonably could rely
on compliance with the stevedore's policy on intoxication. See

Johnson, 613 F.2d at 348 (trier of fact must consider "the

probability and severity of the harm [the condition] poses").

31

understanding of the witness' testimony or the determination of

the fact in issue." Fed. R. Evid. 701. See Swajian v. General

Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990). The trial court

ruled that the proffered deposition testimony did not meet the

first Rule 701 test because Rossley "did not see [Keller] strike

his head, nor could she see his right hand before he fell[, nor]

observe whether his left hand or his left foot first lost contact

with, respectively, the railing or the ladder rung." Keller, No.

81-549-SD, slip op. at 12.

We review a Rule 701 ruling only for manifest abuse of

discretion. See United States v. Paiva, 892 F.2d 148, 156 (1st

Cir. 1989). We find no abuse of discretion. First, Rossley's

opinion necessarily depended upon a forbidden Rule 701 "infer-

ence," because she (i) neither saw Keller strike his head on the

railing, (ii) nor testified to any other sensory perception from

which one might rationally infer such an impact (e.g., the sound

of impact,a sudden jolt orhalt in Keller's upwardprogress, a pre-

or post-impact cry, or any outward appearance of a head wound or

bleeding).9 Cf. Swajian, 916 F.2d at 36 (finding clear abuse of

discretion in allowing lay opinion that wheel fell off rear axle

before car flipped over, based exclusively on the witness's

observation that he first saw wheel crossing the road while the

9Although a medical doctor testified that Keller sustained
an eye injury which could have been consistent with the Rossley
inference, given that Keller also suffered head trauma when he
landed head-first on the tank floor sixteen feet below the 'tween
deck the doctor could not testify that such an inference was
compelled.

32

flip-over was in progress). Although Keller's failure to call

out or to try to regain hold of the ladder could be consistent

with sudden disorientation or even unconsciousness, as a lay

witness Rossley would have had no nonspeculative basis for

excluding possible causes other than a blow to the head (e.g.,

intoxication, fatigue and heavy exertion).

Second, and perhaps more importantly, this was a bench

trial, in which the trial judge would not only determine the

admissibility of the evidence but serve as the ultimate trier of

fact. The Rule 701 admissibility determination turns on whether

the inference drawn by the nonexpert lay witness would be "help-

ful to . . . the determination of the fact in issue." Thus,

having considered the entire proffer, the trial judge excluded

the Rossley opinion testimony because the court found no suffi-

ciently reliable basis for the speculative inference on which it

was based. Not only do we agree, but nothing would have required

the trial judge, as trier of fact, to credit the Rossley opinion

had it been admitted in evidence, especially since she possessed

no particular skill or experience which would have assisted the

trial court's fact-finding insight. Cf., e.g., Soden v. Freight-

liner Corp., 714 F.2d 498, 512 (5th Cir. 1983) (nonexpert witness

with eighteen years' experience repairing trucks can give lay

opinion whether truck was defective).

Finally, Keller contests the exclusion of evidence that

Simplex cut out the two railings on the Tank 4 ladder one day

after the accident, as proof that the original ladder design con-

33

stituted an "unreasonably" dangerous condition. Keller suggests

that this evidence was admissible notwithstanding Rule 407, which

requires the exclusion of subsequent remedial repairs by the

defendant only, not by nondefendants like Simplex. See Raymond

v. Raymond Corp., 938 F.2d 1518, 1524 (1st Cir. 1991); Koonce v.

Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 719-20 (5th Cir.

1986).

At best, subsequent remedial measures are considered

marginally probative of prior negligence. See John H. Wigmore,

Evidence 283, at 174-75 (1979). In this case, moreover, defen-

dant could have capitalized on the very same evidence to demon-

strate that Simplex was expected to make such structural altera-

tions to the HUDDELL without first consulting defendant, and that

defendant was entitled to rely on Simplex, as a reasonably com-

petent stevedore, to take such preemptive measures provided

Simplex deemed them necessary for its employees' safety. See

also infra note 11. Under the Scindia delineation of turnover

duty, therefore, this evidence was at least a "wash" for Keller,

and actually may have helped defendant more than Keller. For

these reasons, we conclude that the exclusion of this evidence

was at most harmless. See Fed. R. Civ. P. 61 (erroneous exclu-

sion of evidence harmless if it "does not affect the substantial

rights of the parties").10

10Keller catalogues various documentary exhibits which he
contends were improperly excluded. We find no error. For
example, Exhibits 10, 21, and 65 were proffered to establish the
contents of the contract between Simplex and defendant. This
issue was mooted by the finding that the Tank 4 ladder did not

34

2. Post-Turnover Duties of Intervention

Leaving no ground unturned, Keller argues that the

court erred in ruling that the defendant did not breach its post-

turnover duties: to supervise and inspect the HUDDELL during

cable loading and to intervene and remedy any hazardous condition

that developed following turnover. See Scindia, 451 U.S. at 172

(noting that post-turnover duty to intervene to remedy unreason-

ably dangerous condition may derive from custom or from the

vessel owner's contractual obligation to the stevedore). Keller

contends that the court (1) disregarded his claim that the

contract with Simplex required the defendant vessel owner to

intervene to effect any safety-related alterations during cargo

operations; (2) ignored Keller's evidence that it was a customary

or established practice that the defendant monitor the HUDDELL

during loading operations; and (3) erred as a matter of law in

constitute an unreasonably dangerous condition. See infra

Section II.B.2 & note 11. Exhibits 34 and 34A were largely
cumulative of evidence already admitted and any noncumulative
portions were provided in the van Dissell testimony. See Fed. R.

Civ. P. 61 (harmless error); Fed. R. Evid. 403 (governing admis-
sion of "cumulative" evidence). Finally, Exhibit 73 a mock-up
of a portion of the Tank 4 ladder, used for demonstrative purpos-
es at trial was excludable due to failure to lay a proper
foundation for its admission. See Rogers v. Raymark Indus.,

Inc., 922 F.2d 1426, 1429 (9th Cir. 1991) (admission of demon-

strative evidence entrusted to trial court discretion). At
trial, Bijhouwer challenged the accuracy of the van Dissell
measurements upon which Exhibit 73 was predicated. See United

States v. Myers, 972 F.2d 1566, 1579 (11th Cir. 1992) (noting

that admission turns on whether there is foundation testimony
that demonstrative evidence is "fair" and "accurate" depiction of
original), cert. denied, 113 S. Ct. 1813 (1993); Nichols Constr.

Corp v. Cessna Aircraft Co., 808 F.2d 340, 353 (5th Cir. 1985)

(same). Finally, relevant portions of Exhibits 91 and 91A were
read into the trial record. See Fed. R. Civ. P. 61; Fed. R.

Evid. 403.

35

determining that "a custom-generated duty to supervise and

inspect does not transfer to the ship owner a duty to eradicate

dangers reasonably known to and managed by the stevedore."

Keller, No. 81-549-SD, slip op. at 14 (citing La Martina v. Pan

Ocean Shipping Co., Ltd., 815 F. Supp. 878, 880-81 (D. Md.

1993)).

A vessel owner's duty of care normally ceases once it

has discharged its "turnover" duties and the stevedore-employer's

cargo operations have begun. Nonetheless, the Supreme Court has

suggested three settings in which an owner might remain under

some "continuing" duty to monitor, supervise, or inspect the

vessel for hazards developing after stevedoring operations

commence. First, the vessel owner might remain under such a duty

were it to retain actual physical control or custody of a portion

of the vessel, or participate in stevedoring operations. Scin-

dia, 451 U.S. at 167. Keller concedes that these conditions were

not met. 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-employer will not address the unsafe

condition, and that the stevedore's decision not to remedy the

developing hazard was "obviously improvident" in the circum-

stances. Id. at 174-75. 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,

36

to monitor stevedoring operations for the purpose of detecting

and remedying unsafe conditions. Id. at 172.

Keller's "continuing duty" claim was founded on the

contention that the defendant vessel owner had either actual or

constructive knowledge of an unreasonably dangerous condition

during cable loading operations. However, he does not suggest

that the basic structure or design of the Tank 4 ladder changed

after cable loading began (e.g., ladder rungs displaced, loosened

or fractured). Therefore, the defendant could have breached no

continuing duty of care to Keller, since the district court

supportably found that the Tank 4 ladder configuration created no

"unreasonable" hazard ab initio. See Scindia, 451 U.S. at 172

("We are of the view that . . . the shipowner has no general duty

by way of supervision or inspection to exercise reasonable care

to discover dangerous conditions that develop [i.e., a malfunc-

tioning winch] within the confines of the cargo operations that

are assigned to the stevedore."); Martinez, 903 F.2d at 611

("[T]he alleged unsafe condition [employees working on "unsafe"

platform] did not develop during cargo operations; it was either

safe or unsafe at the time the cargo operations began . . . .");

Pluyer v. Mitsui O. S. K. Lines, Ltd., 664 F.2d 1243, 1246 (5th

Cir. 1982) (noting "different situation" than in Scindia where

the "case involves the vessel's liability for hazards that

antedate or are coincident with the commencement of cargo opera-

tions").

37

Keller intimates that the relevant "change" or "devel-

opment" which would have been discovered had defendant met its

alleged continuing duty to monitor and intervene was the failure

of Simplex cable loaders to use the Tank 4 ladder in the intended

manner. Thus, Keller would interpret the district court ruling

that "a custom-generated duty to supervise and inspect does

not transfer to the ship owner a duty to eradicate dangers

reasonably known to and managed by the stevedore" as holding

that a vessel owner can never be duty-bound to intervene once an

on-board danger (the risk that longshore workers might resort to

the "over" and "between" methods of egress) becomes "obvious" to

the stevedore.

We cannot subscribe to Keller's reasoning. First, as

already noted, we discern no indication that the trial court

credited evidence that the two alternate methods of exiting Tank

4 were not reasonably safe. Second, even if the district court

had found these other methods of egress "unsafe," initially the

vessel owner could rely on Simplex to manage such "obvious"

defects, unless and until it appeared that Simplex's decision not

to take remedial measures (warnings or railing removal) was

"obviously improvident" under the circumstances. Keller conced-

ed, however, that Simplex, which plainly had actual or construc-

tive notice as to how its longshore workers were exiting Tank 4,

never received an employee complaint about the Tank 4 ladder and

that no accident ever occurred on the ladder either before or

after the Keller incident. Thus, evidence presented by Keller

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did not begin to establish defendant's actual knowledge of the

alleged "hazard" on the part of the defendant vessel owner, let

alone any obvious improvidence on the part of Simplex. For the

same reason, even if the defendant vessel owner had been under a

contractual or custom-generated duty to monitor and intervene,

Keller failed to establish a breach.11

III

CONCLUSION

Given the exacting standards of care incumbent upon a

stevedore under the LHWCA, and the supportable trial court find-

ings, we are left with nothing approaching a "definite and firm

conviction that a mistake has been committed." Holmes Transp.,

Inc., 983 F.2d at 1129. Once the trier of fact determined that

the Tank 4 ladder was "safe," its design compatible with "appli-

cable" maritime safety standards, and any potential hazards

sufficiently "obvious" to Simplex longshore workers, it followed

11Keller argues that the contract between defendant and
Simplex unambiguously provided that defendant, not Simplex, would

bear primary responsibility for ongoing "safety" inspections and

modifications to the HUDDELL's work areas following turnover.
Keller points to a contract provision barring Simplex from making
unilateral structural alterations to the HUDDELL. From this

premise, he contends that Simplex was compelled to use the Tank 4
ladder in existence at turnover. We do not agree. First,
contrary to the trial court's alternate finding, this argument
presumes that the ladder was "unsafe." Second, the contract
contemplated that Simplex would bear the primary role in deter-

mining whether modifications were needed, even if defendant was
to be consulted before "major" modifications were undertaken. In
any event, this contention falls far short of demonstrating a
contractual duty on the part of the vessel owner to monitor in

the first instance.

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inexorably that the vessel owner was entitled to rely on Simplex,

as an "expert and experienced" stevedore, to act with reasonable

care in supervising its workers in their interaction with and

avoidance of any such "obvious" hazards on board the vessel

during cargo loading operations. Any relevant "hazard" could

have been averted by Simplex in various ways, including the

permanent removal of the safety railings at the top of the Tank 4

ladder, a warning on the ladder as to safe methods of egress, or

simple instruction of its longshore workers.

The judgment is affirmed. The parties shall bear their

own costs.

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