Stewart v. Dutra Construction Co.

United States Court of Appeals
For the First Circuit

No. 02-1713

WILLARD T. STEWART,

Plaintiff, Appellant,

v.

DUTRA CONSTRUCTION COMPANY, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Lynch and Howard,
Circuit Judges.

David B. Kaplan, with whom Thomas M. Bond and The Kaplan/Bond
Group were on brief, for appellant.
Frederick E. Connelly, Jr., with whom Peabody & Arnold LLP was
on brief, for appellee.

September 4, 2003
 TORRUELLA, Circuit Judge. Plaintiff-Appellant Willard T.

Stewart appeals a decision from the District of Massachusetts

granting summary judgment to Defendant-Appellee Dutra Construction

Company ("Dutra"), Stewart's employer and the owner of the vessel

on which Stewart was injured. Following our decision in Morehead

v. Atkinson-Kiewit, 97 F.3d 603 (1st Cir. 1996) (en banc), we

affirm the district court's grant of summary judgment.

I.

Dutra is a dredging company hired by the Commonwealth of

Massachusetts to perform drilling, blasting, and dredging work for

an immersed tube tunnel under Boston Harbor, now known as the "Ted

Williams Tunnel." Dutra used the dredge SUPER SCOOP and the Scow

4 for this work. The SUPER SCOOP is a typical dredge with a

clamshell bucket; its function was to move through Boston Harbor,

from East Boston to South Boston, digging the ocean bottom as it

moved. The Scow 4 was used in conjunction with the SUPER SCOOP.

It would be brought alongside the dredge and filled with sediment

and dredging material that had been scooped from the ocean bottom

by the SUPER SCOOP. Once filled, the Scow 4 would then transport

the material out to sea for dumping.

In 1991, Dutra hired Willard Stewart, a marine engineer,

to maintain the mechanical systems of the SUPER SCOOP. Stewart

spent the majority of his time aboard the SUPER SCOOP, though

occasionally he was required to perform maintenance tasks aboard

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the Scow 4. One such task occurred when the scow's engine

malfunctioned, sometime in the middle of July, 1993. With the

scow's engine out of commission, the scow doors could not be opened

or closed; as a result, dredging operations came to a temporary

halt. To repair the scow, Dutra hired Southworth Milton, an

independent contractor, which sent its representative, Timothy

Angell, to repair the engine. Dutra also arranged for several of

its employees, including Stewart, to assist in the repair process.

Eventually it was determined that the engine was beyond repair and

would need to be replaced.

Access to the engine was via a hatch on the Scow 4. The

old engine was removed, and a new engine was lowered into the scow

by means of a crane. At some point it was determined that a

protective railing guarding the hatch obstructed the removal of the

old engine. The protective railing was subsequently removed.

On July 15, 1993, Angell and Stewart were working aboard

the Scow 4. Angell was working in the engine area, and had been

for two or three days. Stewart was kneeling over the unguarded

open hatch, about ten feet above the engine area, feeding wires

through the hatch. While Stewart was precariously perched above

the hatch, the SUPER SCOOP's crew moved the scow. At some point in

the moving process, there was a jolt, and Stewart plummeted

headfirst to a deck below. He was seriously injured.

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 Stewart filed a complaint for damages under the Jones

Act, 46 U.S.C. § 688. The complaint was amended to add an

alternative count for vessel negligence pursuant to § 905(b) of the

Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.

§ 901 et seq., authorizing covered employees to sue the vessel as

a third party for injury caused by the negligence of a vessel.

Stewart's Jones Act and LHWCA claims were predicated upon three

alleged acts of negligence. Stewart argues that Dutra was

negligent in: (1) causing the scow to crash suddenly into the SUPER

SCOOP; (2) failing to sound a warning blast prior to moving the

scow; and (3) creating an unsafe work environment by removing the

protective railing around the hatch.

Dutra responded with motions for summary judgment on both

counts. Ruling first on the Jones Act count, the district court

concluded that because the SUPER SCOOP was not a "vessel," as that

term is defined by the Jones Act, Dutra was entitled to an award of

summary judgment. Stewart appealed that decision, and we affirmed,

concluding that the SUPER SCOOP is not "a 'vessel in navigation' as

that term has developed in the jurisprudence of the Jones Act."

Stewart v. Dutra Constr. Co., 230 F.3d 461, 469 (1st Cir. 2000)

(Stewart I).

Following our decision in Stewart I, Dutra renewed its

motion for summary judgment on the LHWCA claim. The district court

granted the motion, and stated only that it was granting Dutra's

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motion for summary judgment based on the application of Morehead v.

Atkinson-Kiewit, 97 F.3d 603 (1st Cir. 1996) (en banc). Stewart

now appeals that decision.

II.

Summary judgment is proper if the pleadings, depositions,

answers to interrogatories, and admissions on file show that there

is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. Rosenberg v.

City of Everett, 328 F.3d 12, 17 (1st Cir. 2003) (citing Fed. R.

Civ. P. 56(c) (2003)). We review the district court's award of

summary judgment de novo, construing the record in the light most

favorable to Stewart and resolving all reasonable inferences in his

favor. Id.

A. "Vessel" Status

Unlike the Stewart I Court, we need not labor over the

"vessel" status of the SUPER SCOOP or scow for purposes of the

LHWCA. Although the LHWCA permits an employee to sue in negligence

only in the event of an injury caused by the negligence of a

vessel, 33 U.S.C. § 905 (b), the LHWCA's definition of "vessel" is

"significantly more inclusive than that used for evaluating seaman

status under the Jones Act." Morehead, 97 F.3d at 607.

Accordingly, Dutra has conceded that for LHWCA purposes, the SUPER

SCOOP and Scow 4 are "vessels."

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 B. Dual Capacity Cases Under the LHWCA

The LHWCA is a comprehensive worker's compensation system

which holds employers liable for compensating covered employees

injured in the course of their employment, regardless of fault.1

33 U.S.C. § 904. The statutory no-fault compensation payments

provided by the LHWCA are considered "exclusive and in place of all

other liability of such employer to the employee." Id. § 905(a).

Therefore, employees covered by the LHWCA are statutorily barred

from suing their employers for injuries incurred in the course of

their employment. However, while the compensation scheme is the

employee's exclusive remedy regarding his employer, the employee is

still free to sue the vessel owner as a third party if his injury

was caused by the negligence of the vessel.

Where, as here, the same entity is both employer and

vessel owner, the question becomes whether the dual capacity

defendant's alleged acts of negligence were committed in its

capacity qua employer (for which it is immune from tort liability

under § 905(a)) or qua vessel owner (for which it may be held

liable under § 905(b)). See Morehead, 97 F.3d at 610. Though dual

capacity cases are by nature complex, we fortunately proceed under

the guidance of Morehead, which has already addressed most of the

dual capacity issues raised by the appellants.

1
For a thorough history of the LHWCA, its amendments, and case
law, see our en banc opinion in Morehead, 97 F.3d at 607-13.

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 1. Morehead v. Atkinson-Kiewit

In Morehead, the en banc Court considered a dual capacity

claim very similar to this case. Morehead was employed as a

carpenter on a bridge construction project and a line-handler on a

barge used for the project. Id. at 605. Atkinson-Kiewit ("A-K"),

the construction contractor, was not only Morehead's employer, but,

as charterer of the barge, was also the vessel owner. Id. at 606-

07 (noting that under 33 U.S.C. § 902(21) bare-boat charterers such

as A-K were liable as vessel owners under § 905(b)). While

Morehead was handling a heavy line on the barge deck, he stepped

backwards into an open hatch and was injured. The hatch had

negligently been left open by a co-worker, who, like Morehead, had

been hired both for carpenter and scowman duties. Id. at 614.

The plaintiff argued that A-K violated vessel duties owed

to Morehead because at the time he was injured "A-K as vessel

(rather than A-K as employer) [had] 'active control' over the open

hatch." Id. That is, because no construction purpose (and

therefore no employment purpose) was being pursued at the time of

his injury, the hatch was within A-K's control in its capacity as

a vessel owner, not an employer.2 Id.

2
In support of this claim, Morehead emphasized that

the barges were set alongside the pier and
were not carrying construction equipment . . .
. [and] A-K had instructed [the employee who
left the hatch open] to open the hatch out so
that A-K could exercise what Morehead argues

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 We rejected this argument, and found instead that both

Morehead and the employee who left the hatch open "had been hired

both for carpenter and scowman duties." Id. We noted that both

employees "were expected as part of their employment duties to lend

a hand with supporting maritime chores as well as to pursue their

particular construction trade." Id. Consequently, we agreed that

A-K's "active control" over the open hatch was "therefore

attributable to it as employer, not as vessel, since the hatch was

opened . . . and the line thrown in the course of harbor worker

duties which both men were regularly hired to perform." Id. Since

both men were acting as employees, rather than as A-K's agent in a

distinct shipowner's capacity, we found that any negligence on A-

K's part was committed in its capacity qua employer. Id. at 616.

As a result, Morehead's suit was barred under § 905(a). Id.

In reaching this conclusion, we expressly rejected any

dual capacity approach that would focus on the specific activities

of the employee to determine whether the employee's actions were

benefitting the defendant in its capacity as vessel owner or

employer at the time the employee was injured. Id. at 614-15.

That is, we rejected any "functional" approach which would lead us

was a vessel function -- having a marine
surveyor examine the barge before returning it
to the owner.

Id. at 614.

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to question whether an accident occurred "in furtherance of a

'construction' objective or a 'vessel' objective." Id. We stated:

A "functional" interpretation, hinging the
type of liability on the nature and purpose of
the duties being performed by covered
employees at any given time, would increase
uncertainty and the frequency of disputes over
the scope of the coverage. As [the two
employees involved in the accidents]
employment contemplated that they would
alternate frequently between construction and
linehandling, a single overall classification
of their duties is most appropriate for
determining the types of remedies available.

Id. at 615. Because the "functional" approach increased

uncertainty and contravened the Congressional intent behind the

LHWCA by expanding vessel owner liability, we concluded that the

dual capacity vessel could be held liable under section 905(b) only

to the extent that it breached its duties of care while acting in

its capacity as a vessel. Id.

III.

Stewart makes two arguments in support of his claim that

Dutra's allegedly negligent actions occurred in its capacity as

vessel owner, rather than in its capacity as employer. First,

Stewart claims because the scow had been taken out of service and

had done no dredging work for two days prior to the accident, the

work Stewart was performing when he was injured can only be

considered "vessel" work. Second, Stewart avers that Dutra

remained in "actual control" of the area where he was injured

because the engine and hatch area of the vessel were under the

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"actual control" of Timothy Angell, an independent maritime agent

working distinctly on behalf of the vessel. Stewart contends that

because Dutra created the negligent condition that was the

proximate cause of Stewart's injuries through its agent as vessel

owner, Dutra breached its vessel duties to Stewart and is liable

under § 905(b). After careful consideration, we conclude that the

former argument is precisely the sort of "functional" analysis

precluded by Morehead; the latter we reject as procedurally

defaulted.

A. Stewart's Functional Dual capacity Analysis

Stewart's first argument is essentially that all injuries

occurring incident to repair work on a vessel implicate the

defendant's capacity as a vessel owner rather than as an employer.

According to Stewart, it is significant that the scow had been

taken out of service and had done no dredging for two days prior to

the accident. Once the crew (Stewart included) was diverted from

their ordinary dredging activities to work on repair-related

activities, the work they performed could only be considered

"vessel" work, not "dredging" work. To support this argument,

Stewart argues by analogy that "[i]f Dutra dredging company had

chartered the Scow 4 from another entity, it would have returned

the Scow 4 to said entity to replace the engine. A dredging

contractor would not purchase a new engine in a vessel it did not

own." Moreover, the Southworth Milton employee hired to repair the

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engine had nothing to do with the dredging operation. As a result,

Stewart maintains that the repair operations that led to his injury

furthered a distinctly "vessel" objective.

This argument does not differ from the "functional"

analysis rejected by the Morehead Court in any significant way. In

Morehead, the plaintiff argued that the purpose of leaving the

hatch open furthered the vessel's purposes, and did not further any

employment purpose. Rejecting this argument, we noted that the

LHWCA had been amended to "provide employees and employers with a

greater degree of certainty as to the coverage in effect." Id. at

615. Accordingly, the legislative history of the 1984 Amendments

documents the legislature's concerns about predicating coverage

upon the nature of the task the employee was performing when

injured:

The situation in which a worker may be covered
at one time, and not covered at another,
depending on the nature of the work which the
worker is performing at the time of the injury
must be avoided since such a result would be
enormously destabilizing and would thus defeat
one of the essential purposes of the
amendments.

Id. (quoting H.R. Rep. No. 98-570(I), 98th Cong., 2d Sess.,

reprinted in 1984 U.S.C.C.A.N. 2734, 2736-37).

Eschewing this approach, we noted that "as is typical in

the case of harbor workers . . . [employees] were expected as part

of their employment duties to lend a hand with supporting maritime

chores as well as to pursue their particular construction trade."

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Id. at 614. Since both Morehead and the employee who left the

hatch open were performing tasks that were contemplated by the

terms of their employment, we deemed that the defendant was liable

only in its capacity as employer.

Like Morehead, Stewart was performing the work he was

hired to do. Although Stewart spent the majority of his time

aboard the SUPER SCOOP, he, like the other employees on the SUPER

SCOOP, was hired to perform tasks relating both to dredging and to

occasional maintenance work on both vessels. His job contemplated

performing maintenance tasks on a variety of engines and machinery

related to the dredging process, including engines used for the

dredging-crane, scow engines, and deck winches used for moving the

dredge. He was therefore performing his regular duties as an

engineer on a dredging operation.

Stewart has not cited any cases to the effect that major

repair work on a vessel is inherently vessel-oriented, and not

employment-oriented work. Given Morehead's explicit rejection of

a "functional" approach to dual capacity cases and Congress's plain

intention to avoid creating uncertainty as to actions covered by

the LHWCA, we are compelled to reject this argument.

B. Dutra's "Active Control" Duty

Stewart next argues that Dutra breached its vessel duties

to him by remaining in active control over, and creating an unsafe

condition in, the area where he was injured. This argument is

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based on vessel duties established by the Supreme Court in Scindia

Steam Navigation Co. v. De los Santos, 451 U.S. 156, 175-76 (1981).

In Morehead, we concluded that the owner of a dual

capacity vessel could be held liable under § 905(b) where it

breached its Scindia duties while acting in its capacity as vessel.

Morehead, 97 F.3d at 615. The Scindia Court articulated three

types of duties a vessel owner owed to stevedoring employees.

First, shipowners have a duty to turn over "the ship and its

equipment in such condition that an expert and experienced

stevedore will be able by the exercise of reasonable care to carry

on its cargo operations with reasonable safety." Scindia, 451 U.S.

at 167. This duty, commonly referred to as the "turnover duty,"

includes a duty to warn the stevedore of latent dangers that could

not be discovered through the exercise of reasonable care.

Second, once stevedoring operations have begun, the

vessel owner will be liable if it "actively involves itself in the

cargo operations and negligently injures a longshoreman." Id.

That is, if the vessel owner maintains active control over an area

or operation, the vessel is liable for any injuries it negligently

inflicts incident to the area or operation. Id.

Finally, a shipowner has a duty to intervene to protect

stevedoring workers if it acquires actual knowledge that the vessel

or equipment pose a danger and the stevedore is not exercising

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reasonable care to protect its employees from that risk. Id. at

175-76.

According to Stewart, both the area where the incident

occurred and the repair activities that were taking place there

were under the control of Angell, who was acting as a separate

maritime agent specifically for the vessel. The presence of

Angell, Stewart argues, distinguishes this case from Morehead

because in that case, we noted that "[t]he allegedly negligent

conditions (the open hatch and the absence of warnings) were not

attributable to the errors of separate maritime agents acting

specifically for the vessel." Morehead, 97 F.3d at 614. Stewart

therefore contends that through Angell, Dutra as vessel owner knew

or should have been aware of the danger created by removing the

protective railings around the hatch; Dutra is therefore liable in

its capacity as vessel owner for its alleged breach of Scindia's

"active control" duty.

We decline to consider whether Dutra's actions and the

presence of Angell in the engine room warrant consideration under

Scindia. Stewart's contention that Dutra retained active control

over the engine/hatch area is procedurally defaulted by his failure

to raise the issue before the district court. "The law in this

circuit is crystalline: a litigant's failure to explicitly raise an

issue before the district court forecloses that party from raising

the issue for the first time on appeal." Boston Beer Co. Ltd.

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P'ship. v. Slesar Bros. Brewing Co., 9 F.3d 175, 180 (1st Cir.

1993). In the district court, Stewart's opposition to Dutra's

motion for summary judgment made only passing mention of Timothy

Angell, and at no point contended that he was a "separate maritime

agent" whose presence distinguishes this case from Morehead.

Indeed, the "active control" argument seems to have surfaced for

the first time in Stewart's briefs to this Court.

In his briefs before the district court, Stewart refers

to Angell as a "mechanic" working for "independent contractor,"

Southworth Milton. Nowhere does he make any other reference to the

legal or employment status of Angell, nor does he otherwise discuss

whether Angell exercised actual control over the scow or any

portion thereof. These passing references do not amount to an

argument that Angell was a separate maritime agent in actual

control of the scow. See DiMarco-Zappa v. Cabanillas, 238 F.3d 25,

34 (1st Cir. 2001) ("Simply noting an argument in passing without

explanation is insufficient to avoid waiver."); Beaudett v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (appellate courts

should not permit "fleeting references to preserve questions on

appeal"). We therefore reject, as procedurally defaulted,

Stewart's contention that Angell's activity aboard the scow

distinguishes this case from Morehead or triggers Scindia liability

in the form of a breach of the active control duty.

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 IV.

Our decision in Morehead compels us to find that

Stewart's claim is barred by § 905(a) because he was injured while

performing his regular duties as an engineer on a dredging

operation. The district court's grant of summary judgment is

affirmed.

Affirmed.

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