
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                                        ____________________               1The district court's opinion  is published.  See DiGiovanni                                                             ___ __________          v. Traylor Bros., Inc., 855 F. Supp. 37 (D.R.I. 1994).             ___________________                                          2          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                                          3          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.                                          4          Affirmed.          Affirmed.          ________                            - Dissenting Opinion Follows -                            - Dissenting Opinion Follows -                                          5                    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.                                          6                                          7                    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.                                          8
