(dissenting).
On the grounds set forth in Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603 (1st Cir.1996) (Cyr, J., dissenting), I respectfully dissent. The district court entered judgment for Traylor Brothers, Inc. in reliance on deci-sional 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, 101 S.Ct. 1614, 68 L.Ed.2d 1 (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, 97 F.3d at 621 n. 6 (Cyr, J., dissenting). Indeed, the district court acknowledged that the failure to stop the pow-erpaek 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 responsibility 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.
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, DiGiov-anni 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, 101 S.Ct. at 1626, 1627-28 (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.