USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 94-1775
ROCCO P. DIGIOVANNI, JR.,
Plaintiff, Appellant,
v.
TRAYLOR BROTHERS, INC.,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
_________________________
Before
Torruella, Chief Judge, ___________
Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges. ______________
_________________________
David B. Kaplan, Thomas M. Bond, The Kaplan/Bond Group, Paul _______________ ______________ _____________________ ____
V. Gallogly, and Lovett, Schefrin, Gallogly & Harnett, Ltd. on ___________ ___________________________________________
brief for appellant.
Andrew Rothschild, Eric D. Paulsrud, and Lewis, Rice & __________________ _________________ ______________
Fingersh, L.C. on brief for appellee. ______________
Myles W. McDonough and Sloane and Walsh on brief for J.M. ___________________ _________________
Cashman, Inc. and Cashman, KPA, A Joint Venture, amici curiae.
_________________________
October 10, 1996
_________________________
OPINION EN BANC
_________________________
Per Curiam. This appeal comes before the en banc court Per Curiam. __________
following the withdrawal of a two-to-one decision, issued on
February 6, 1996, in which a panel of this court vacated a
judgment of the United States District Court for the District of
Rhode Island.1 The en banc court similarly withdrew a decision
handed down by a different panel that construed the same federal
statute, namely, section 905(b) of the Longshore and Harbor
Workers' Compensation Act (LHWCA), 33 U.S.C. 901-950, in a
materially different way. See Morehead v. Atkinson-Kiewit, J/V, ___ ________ ____________________
No. 94-1581. We granted rehearing en banc in both cases so as to
afford us an opportunity to formulate a consistent rule in this
circuit concerning the underlying question of statutory
construction.
This case illustrates the problem. The defendant,
Traylor Bros., Inc. (Traylor), contracted with the State of Rhode
Island to construct a new bridge spanning Narragansett Bay from
North Kingstown to Jamestown. Once work began, Traylor chartered
tugboats and nonmotorized barges to assist it in building coffer
dams for the new bridge. It hired pile-driving crews,
carpenters, mechanics, and crane operators to man the barges.
In mid-1988, Traylor towed the barge BETTY F, whose
main deck was fitted with a crane and a vibratory pile-driving
hammer, to the coffer dam construction site. Thereafter, Traylor
moved the BETTY F to various other aquatic locations where it
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1The district court's opinion is published. See DiGiovanni ___ __________
v. Traylor Bros., Inc., 855 F. Supp. 37 (D.R.I. 1994). ___________________
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functioned as a stationary platform for the pile-driving crew.
During most pile-driving operations, a supply barge, used to
carry materials and to house the powerpack for the pile driver,
was moored alongside the BETTY F. Traylor routinely assigned two
employees as "tag men" to stand on the supply barge's main deck,
grasp opposing guide ropes attached to the vibratory hammer, and
steady the implement as it moved into position over the metal
piles that were to be driven.
Beginning in September of 1988, worn fittings on the
powerpack began to leak hydraulic fluid which spilled onto the
deck of the supply barge. Crewmen complained unsuccessfully to
their superiors and to the union steward about the hazard. They
also tried to alleviate the problem from time to time, but to no
avail.
On September 30, 1988, plaintiff Rocco DiGiovanni, Jr.,
who had been assigned by Traylor to work as a tag man on the
supply barge, slipped on spilled hydraulic fluid as he started
across the oil-covered deck to steady the BETTY F's pile-driving
hammer with his guide rope. DiGiovanni was seriously injured and
received workers' compensation benefits from Traylor under LHWCA
904, 33 U.S.C. 904.
Not satisfied with the avails of workers' compensation,
DiGiovanni sued in the federal district court. His complaint
noted that Traylor was not only his employer but also the owner
pro hac vice of both the BETTY F and the supply barge. ___ ___ ____
Accordingly, he asseverated that Traylor was liable in negligence
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pursuant to 33 U.S.C. 905(b) in its capacity as vessel owner.
The district court entered judgment for Traylor as a
matter of law following a three-day bench trial. See DiGiovanni ___ __________
v. Traylor Bros., Inc., 855 F. Supp. 37 (D.R.I. 1994). As ____________________
mentioned earlier, a panel of this court vacated the decision.
The panel held that the lower court had applied too restrictive a
test to DiGiovanni's "dual capacity" claim. It was against that
backdrop that we granted en banc review.
The en banc court has now issued its opinion resolving
the companion case.2 See Morehead v. Atkinson-Kiewit, J/V, ___ ___ ________ ____________________
F.3d ___ (1st Cir. 1996) (en banc). This opinion clarifies the
proper interpretation of LHWCA 905(b) in "dual capacity" cases.
In the view of the majority of the judges of the en banc court,
Morehead is controlling here. Moreover, Morehead explicates our ________ ________
reasoning in sufficient detail that added comment on our part
would be supererogatory.
It suffices to say that we are not persuaded by the
distinctions that our dissenting brother raises. As we see
things, Morehead, as applied to the facts of the instant case, ________
plainly requires that we depart from the position taken by the
panel and reinstate the district court's entry of judgment in
Traylor's favor. We need go no further.
____________________
2The appeals in this case and in Morehead could not be ________
treated in a single en banc opinion because a senior judge who
had sat on the Morehead panel was eligible to participate in the ________
en banc decision in that case, but not in this case. See 28 ___
U.S.C. 46(c); 1st Cir. Loc. R. 35.3.
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Affirmed. Affirmed. ________
- Dissenting Opinion Follows - - Dissenting Opinion Follows -
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CYR, Circuit Judge (dissenting). On the grounds set CYR, Circuit Judge (dissenting). ______________
forth in Morehead v. Atkinson-Kiewit, J/V, __ F.3d __ (1st Cir. ________ ____________________
1996) (Cyr, J., dissenting) [No. 94-1581 (1st Cir. Oct. __,
1996)], I respectfully dissent. The district court entered
judgment for Traylor Brothers, Inc. in reliance on decisional law
which presumes a legal fiction of dual capacity that conflicts
with both the LHWCA and the Supreme Court decision in Scindia _______
Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). For _____________________ _____________
two principal reasons, reliance on the dual capacity fiction in
the present case is less appropriate than in Morehead. ________
First, unlike Morehead the present record leaves no ________
doubt that "active control" over the workplace where DiGiovanni
was injured shifted so haphazardly between Traylor Brothers' two
fictional personae that it cannot reliably be determined which
cadre of its employees Traylor Brothers expected to control
workplace safety at the site of the injury. See Morehead, __ ___ ________
F.3d at __ n.6 [No. 94-1581, slip op. at 48 n.6] (Cyr, J.,
dissenting). Indeed, the district court acknowledged that the
failure to stop the powerpack leakage for nearly a month amounted
to negligence, and it is more than merely arguable that the
negligence which caused DiGiovanni's injury is directly
attributable to the absence of any clear delineation of responsi-
bility by Traylor Brothers for its workplace-safety decisions.
Thus, on the present record Traylor Brothers did not approach an
efficient "bifurcation" of its "vessel-owner" and "construction"
operations.
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Second, during the extended period the powerpack
leakage persisted, Traylor Brothers' supervisors and employees
resorted to a series of patently inadequate stopgap measures
(e.g., tying the powerpack with rags, spreading kitty litter on
the oil-slickened deck). Further, even assuming that an open
hatch arguably might serve some legitimate vessel or construction
purpose in a particular case, the faulty powerpack and its
dangerous effluent not only represented an open and conspicuous
hazard, but served no conceivable purpose which might warrant the
extended failure of Traylor Brothers' fictional "vessel owner"
persona to second-guess its alter ego's decision not to stop the
leak sooner. Even if one accepts the dubious premise that
Traylor Brothers might establish an affirmative "bifurcation"
defense on remand, DiGiovanni certainly generated a factual
dispute as to whether Traylor Brothers' "vessel owner" persona
knew of the abortive stopgap remedies, and should have known that
its alter ego's decision not to undertake further remediation was
"obviously improvident." Cf. Scindia, 451 U.S. at 175, 178-79 ___ _______
(noting genuine factual dispute whether vessel owner was liable
because it knew that stevedore's decision not to fix defective
winch for two days was obviously improvident, and remanding for
further factual findings). I therefore would remand the case to
the district court for further factual findings.
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