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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