
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1581                                    MARK MOREHEAD,                                Plaintiff, Appellant,                                          v.                            ATKINSON-KIEWIT, J/V, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Bailey Aldrich,* Senior Circuit Judge]                                            ____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                 Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges.                                                      ______________                                 ____________________            Thomas  M. Bond,  David B.  Kaplan  and  The Kaplan/Bond  Group on            _______________   ________________       ______________________        brief for appellant.            Thomas E.  Clinton, Robert E. Collins  and Clinton  & Muzyka, P.C.            __________________  _________________      _______________________        on brief for appellees.            Myles W. McDonough and Sloane and Walsh on  brief for J.M Cashman,            __________________     ________________        Inc. and Cashman, KPA, A Joint Venture, amicus curiae.                                                _____________                                 ____________________                                   October 10, 1996                                 ____________________                                   OPINION EN BANC                                 ____________________                                    ____________________        *Of the First Circuit, sitting by designation.                 CAMPBELL,  Senior  Circuit  Judge.   This  appeal  comes                            ______________________            before the  en  banc  court  following  our  vacating  of  an            unpublished panel decision in this case issued on February 6,            1996, affirming the decision  of the district court.   On the            day  of the panel opinion, another panel of this court handed            down  a decision  construing the  federal statute  underlying            both  appeals  in a  materially  different  way.    Rocco  P.                                                                _________            DiGiovanni,  Jr. v.   Traylor  Bros, Inc.,  No. 94-1775.   We            ________________     ____________________            vacated  both opinions and granted rehearing en banc so as to            provide a consistent rule in this  circuit pending, at least,            further instruction from the Supreme Court or Congress.                 Plaintiff Mark Morehead, a  harbor worker injured  while            working on  a construction barge, appeals from  a judgment of            the district  court dismissing his negligence  action against            Atkinson-Kiewit,  J/V  ("A-K"),  a  firm that  was  both  his            employer and the  charterer of the  barge.  Morehead  brought            this action under section 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  the vessel.  In            its capacity as Morehead's employer,  A-K is immune from tort            actions brought  by covered employees like Morehead.   But as            the  bare boat charterer of  the barge on  which Morehead was            injured, A-K is deemed also to be the statutory vessel owner;            and it was in this capacity that A-K was sued.                                           -2-                                          2                 The case raises difficult questions  of first impression            in  this  circuit as  to the  liability  of a  so-called dual            capacity employer under the LHWCA.  We must decide whether A-            K's alleged negligence occurred in its "employer" capacity (a            capacity  immune from suit), or rather was in its capacity as            "vessel" (a negligence action  being authorized under section            905(b)  against a vessel as  third-party).  While the Supreme            Court has endorsed the  bringing of section 905(b) negligence            actions against a dual capacity defendant in its vessel owner            capacity,  the Court has yet  to define, in  such a case, the            point  at  which  employer  responsibility  ends  and  vessel            responsibility begins.   Nor  has the  Court decided  to what            extent principles laid down  in negligence actions brought by            longshore  workers against  a vessel  owned by  a third-party            apply to claims by non-stevedoring  contractor harbor workers            brought against a vessel owned by their own employer.                         I. Background            I. Background                 Mark  Morehead  was employed  by  A-K,  a joint  venture            formed  between  Guy  Atkinson  Co.  and  Kiewit  Eastern  to            complete the  construction of  the Jamestown  Bridge spanning            Narragansett Bay  in Rhode  Island.   In  order to  transport            materials and equipment around the bay to the work sites, A-K            bare  boat chartered several barges.   The barges involved in            this case,  the CHER 106 and  the HUGHES 707, were  flat deck                                         -3-                                          3            barges    floating platforms bare of structures or equipment.            A-K  also leased  two  tugs from  Woods  Hole Towing  Co.  to            transport the barges where needed.   The tugs themselves were            crewed by Woods Hole employees.1                 A-K hired  carpenters from  a local  union to  build the            bridge.  Their responsibilities  included cutting timbers and            steel and setting up concrete forms for pours.  As the  local            union's requirements  prevented the tug captain  or crew from            handling the lines on the barges, some carpenters also tended            the lines on  the barges  as "scowmen."   Morehead's  regular            duties included both carpentry and linehandling.                 On    January   29,    1990,   Morehead    and   another            carpenter/scowman,  Steven Breault,  were untying  the HUGHES            707 from  the  CHER 106.    A barge  was  to be  surveyed  in            connection with her going off hire.  A tug stood nearby.  The            barges were not at this time carrying materials or equipment,            but rather were set  off on the north side of  the Davisville                                            ____________________            1.   Although Woods Hole was originally named  as a defendant            Pier.   Breault  threw  a heavy  line  to Morehead,  who,  in            in  this action,  the district court  granted its  motion for            summary judgment against Morehead,  who has not appealed from            attempting to catch it, stepped backwards  into an open hatch            that  decision.   Consequently,  Woods Hole  is  no longer  a            party.            which was  flush with the  deck on  one of the  barges.   The            2.   The district court did not definitively find which barge            district court noted conflicting  testimony as to which barge            Morehead was on at the time of the accident.  The court found            "more likely" that Morehead was on the HUGHES 707 and Breault            Morehead was  on when  injured,2  but concluded  that in  any            was on the  CHER 106, but wrote:   "In either event, however,            the court would find a single open hatch . . . insufficiently            obvious.   There would seem a presumption that an unmarked 18            inch opening  on an otherwise  solid deck  is a failure  of a            reasonably safe proffer to one expected to walk thereon.  The            court  would therefore find the barge,  whichever one it was,            unseaworthy,  but under the statute (33 U.S.C.   905(b)) this            is irrelevant."                                            -4-                                          4            event,  the  single open  hatch  was  insufficiently obvious.            Breault  testified that he had opened the hatch on the HUGHES            (which  he named  as the  barge to  be surveyed)  a few  days            before the accident,  because A-K was  preparing for an  off-            hire survey before returning the barge to the owner.  Breault            testified that  a supervisor carpenter  had told him  to open            the hatch.                  Morehead filed a complaint against A-K and Woods Hole on            April    22,   1991,    alleging   Jones    Act   negligence,            unseaworthiness, maintenance and  cure, and negligence  under            section 905(b) of the  LHWCA.  Following the denial  of A-K's            motion  for summary  judgment, Morehead  voluntarily withdrew            all claims  except his claim for negligence  under the LHWCA.            A bench  trial commenced  on April  11, 1994.   On  April 29,            1994,  the  district  court  issued its  Findings  and  Order            dismissing Morehead's complaint and A-K's cross-claim against            Woods Hole.  It wrote:                      [T]he court  does not find  it negligence                      of  [appellee] viewed in  its capacity as                      pro hac vice owner.   Rather, it  appears                      to be a temporary condition created by it                      solely in its capacity  as charterer. . .                      .     These  two capacities  are  legally                      separate,  even though  they be  the same                      individual.            This passage confusingly distinguishes  between an owner  pro            hac vice and a bare boat charterer (the statute includes both            in its definition of "vessel," see 33 U.S.C.   902(21)).  The                                           ___            parties  agree  that the  district  court  actually meant  to                                         -5-                                          5            distinguish between  the appellee as vessel  and as employer.            We also interpret the district court's order in that fashion.                 Judgment  was entered  on May  4, 1994  in A-K's  favor.            This appeal followed.            II. Standard of Review            II. Standard of Review                 A  district  court's  fact-based  findings  relative  to            negligence are reviewable only for  clear error.  See,  e.g.,                                                              ___   ____            Levene  v. Pintail  Enters., 943  F.2d 528, 535-36  (5th Cir.            ______     ________________            1991),  cert.  denied, 504  U.S.  940 (1992).    However, the                    _____________            question  of whether  the district  court applied  the proper            standard of care is one of law, subject to  de novo appellate                                                        __ ____            review.   See, e.g., Keller v. United States, 38 F.3d 16, 22-                      ___  ____  ______    _____________            23 (1st Cir. 1994); Elberg v. Mobil Oil Corp., 967 F.2d 1146,                                ______    _______________            1149 (7th Cir. 1992).                   The  district  court did  not  explain  the criteria  it            applied in deciding what  duties of care to attribute  to A-K            in its separate  capacities, respectively, as  LHWCA employer            and as owner  (charterer) of  the barge.   Rather, it  simply            cited along with its  conclusions existing precedent relative            to section  905(b) liability, e.g., Scindia  Steam Navigation                                          ____  _________________________            Co. v. De  los Santos, 451 U.S. 156 (1981),  and Castorina v.            ___    ______________                            _________            Lykes Bros. S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474            ________________                            ____________            U.S.  846 (1985).  The circumstances and context of these and            related  cases,  however,  are  too removed  for  their  mere                                         -6-                                          6            citation  to  reveal the  analysis  that  the district  court            applied  in this  case.  Nor  does the language  of the LHWCA            provide  clear guidance.  We  can only hope  that the Supreme            Court will eventually  elucidate the standards  applicable to            dual  status  employers  of harbor  workers  in circumstances            comparable to these.   Until then, we do our best  to outline            the  legal  principles that,  we  believe,  govern the  facts            presented  here.  Under  those principles     and  giving due            deference to the district court's authority as fact finder               we affirm the judgment below.            III. "Vessel" Status            III. "Vessel" Status                 We briefly discuss first a less troublesome issue.   The            district court provisionally assumed, without  deciding, that            the barge on which Morehead was injured was a "vessel" within            the LHWCA.  Section  905(b) permits an LHWCA employee  to sue            in negligence only "[i]n the event of  injury . . . caused by            the  negligence of a vessel."   Section 902(21)  of the LHWCA            defines "vessel" to include  a bare boat charterer  among the            parties  that may be held  liable under section  905(b).  A-K            does  not contest its status as bare boat charterer.  Nor has            it  asserted  on appeal  that the  HUGHES  and CHER  were not            themselves "vessels"  under the LHWCA.   See, e.g., Kathriner                                                     ___  ____  _________            v.  Unisea, Inc.,  975  F.2d 657,  662  (9th Cir.  1992)  (to                ____________            determine whether a  structure is a "vessel" under the LHWCA,                                         -7-                                          7            most courts have applied the general definition in 1 U.S.C.              3 of a  "watercraft or other artificial contrivance  used, or            capable  of  being used,  as  a  means of  transportation  on            water");  accord DiGiovanni  v. Traylor  Bros., 830  F. Supp.                      ______ __________     ______________            106, 108-09 (D.R.I. 1993).   The LHWCA definition of "vessel"            is significantly more inclusive than that used for evaluating            seaman status under the Jones Act.3  For present purposes, we            may assume that both barges were vessels under the LHWCA, for            the  negligence of  which  a  section  905(b)  claim  may  be            brought.            IV. Statutory Framework            IV. Statutory Framework                 The LHWCA establishes  a comprehensive federal  worker's            compensation   scheme   which    holds   employers    liable,            irrespective  of  fault,  for  securing the  payment  of  the            prescribed  compensation  to  qualified   maritime  employees            injured in the course of their employment.  33 U.S.C.   904.4                                            ____________________            3.   See generally Chandris, Inc. v. Latsis, 115 S. Ct. 2172,                 ___ _________ ______________    ______            2192 (1995) (to qualify  as a seaman under the  Jones Act, "a            maritime employee must  have a substantial employment-related            connection to  a vessel in navigation");  Kathriner, 975 F.2d                                    __ __________     _________            at 659-63  (applying tests  of "vessel"  under Jones Act  and            LHWCA).   Plaintiff withdrew his  maritime claims,  including            the claim of Jones Act negligence.            4.  Section  904  provides  in  relevant part:    "(a)  Every            employer  shall be liable for and shall secure the payment to            his employees of the compensation payable under sections 907,            908, and 909 of this title . . . .  (b) Compensation shall be            payable irrespective of fault as a cause for the injury."  33            U.S.C.   904.                                         -8-                                          8            This liability of employers is termed "exclusive and in place            of all  other liability  of such employer  to the  employee."            Id.   905(a).              ___                 Section 905(b)  of the  Act  authorizes certain  covered            employees  to bring an action  against the vessel  as a third            party if their employment injury was caused by the negligence            of the vessel.5 But employees may no longer sue the vessel on                                            ____________________                 A statutorily covered employee is "any person engaged in            maritime  employment, including  any  longshoreman  or  other            person  engaged in  longshoring operations,  and  any harbor-            worker including  a  ship repairman,  shipbuilder, and  ship-            breaker," except "a master or member of a crew of any vessel"            and other limited categories of workers.  Id.   902(3).                                                      ___            5.  Section 905(b) provides:                      In the  event of injury  to a person  covered under                      this chapter caused by  the negligence of a vessel,                      then  such person, or  anyone otherwise entitled to                      recover  damages by  reason thereof,  may bring  an                      action  against such  vessel  as a  third party  in                      accordance with  the provisions  of section  933 of                      this title, and the employer shall not be liable to                      the vessel for such damages  directly or indirectly                      and any  agreements or  warranties to the  contrary                      shall  be void.  If such person was employed by the                      vessel to  provide  stevedoring services,  no  such                      action shall be permitted  if the injury was caused                      by the  negligence of persons engaged  in providing                      stevedoring services to the vessel.  If such person                      was employed to provide shipbuilding, repairing, or                      breaking  services and  such person's  employer was                      the owner, owner pro  hac vice, agent, operator, or                      charterer of  the vessel,  no such action  shall be                      permitted,  in  whole or  in  part  or directly  or                      indirectly, against the  injured person's  employer                      (in  any capacity, including as the vessel's owner,                      owner pro hac vice, agent,  operator, or charterer)                      or  against the  employees  of the  employer.   The                      liability of the vessel under this subsection shall                      not be based upon  the warranty of seaworthiness or                      a breach  thereof at the time  the injury occurred.                      The  remedy provided  in this  subsection shall  be                                         -9-                                          9            a  strict  liability   theory  for  her   "unseaworthiness,"6            Congress  having  eliminated  the  latter  as  a  remedy  for            longshore and  harbor workers in  the 1972 Amendments  to the            LHWCA.   The 1972 Amendments require employees  to show fault            of the  vessel, bar  a vessel's obtaining  of indemnification            from   the  employer,   and  have   increased  the   worker's            compensation recoverable  from an  employer.  See  Addison v.                                                          ___  _______            Bulk Food  Carriers,  Inc., 489  F.2d  1041, 1042  (1st  Cir.            __________________________            1974).  Focusing on longshore workers who, to date, have been            the  occupational group  chiefly  discussed in  Supreme Court            cases under the  LHWCA, the Court described these  changes as            designed   "to   shift   more  of   the   responsibility  for            compensating injured  longshoremen to the party  best able to            prevent  injuries:  the  stevedore-employer."     Howlett  v.                                                              _______            Birkdale Shipping Co., 114 S. Ct. 2057, 2063 (1994); see also            _____________________                                ___ ____            Keller, 38 F.3d at 23.            ______                 In the  1984 Amendments  to the LHWCA,  Congress further            narrowed  the availability  of negligence actions  by certain            categories   of  harbor   workers   against   a   vessel   in                                            ____________________                      exclusive of all other remedies against  the vessel                      except remedies available under this chapter.            33 U.S.C.   905(b).            6.   See 33 U.S.C.    905(b).  Unseaworthiness is  a maritime                 ___            remedy  that was  established  "simply by  showing that  some            condition  or appurtenance on board the vessel at the time of            the   accident  was  unreasonably   hazardous,  even  if  the            stevedore-employer  was  the  sole   cause  of  the  hazard."            Keller,  38 F.3d at 23 (citing Seas Shipping Co. v. Sieracki,            ______                         _________________    ________            328 U.S. 85, 94 (1946)).                                         -10-                                          10            circumstances where the  employer was also  the owner of  the            offending vessel.  In  these so-called "dual capacity" cases,            Congress barred employees providing "shipbuilding, repairing,            or  breaking services"  from suing the  employer-vessel owner            for negligence  in any  capacity.  33  U.S.C.   905(b).   The                               ___            Amendments did not purport  to prohibit LHWCA employees other            than in the described categories from suing for negligence in            dual capacity  cases.   See  H.R.  Rep. No.  98-570(I),  98th                                    ___            Cong., 2d  Sess., reprinted  in 1984 U.S.C.C.A.N.  2734, 2741                              _________  __            (hereafter  1984 U.S.C.C.A.N.)  ("The Committee  intends that            this  language [in    905(b)]  not be  construed to  limit an            employee's  right to bring a  cause of action,  except in the            circumstances indicated within  the language."); cf.  Guilles                                                             ___  _______            v.  Sea-Land Serv.,  Inc., 12  F.3d 381,  386 (2d  Cir. 1993)              _______________________            (affirming relief cook's judgment against negligent employer-            vessel   owner  and  explaining   that  "[t]he   1984  change            . . . shows  that Congress knew  how to  preclude a  class of            employees  from being  able to  sue an employer-vessel  if it            chose to do so"); Gay v. Barge 226, 915 F.2d  1007, 1010 (5th                              ___    _________            Cir.  1990)  ("[T]he      905(b)  bar  is  specific   to  the            occupations listed:   shipbuilders,  ship repairers  and ship            breakers.").                 The Supreme  Court  had previously  interpreted  section            905(b)  to  permit  covered  employees  to  bring third-party            negligence actions against  their employer qua  vessel owner.                                         -11-                                          11            See  Jones & Laughlin Steel  Corp. v. Pfeifer,  462 U.S. 523,            ___  _____________________________    _______            530-32  (1983) (asserting  that if  Congress had  intended to            exempt employer-vessel owners from negligence suits, then the            sentence in  section 905(b) barring recovery  from them where            fellow longshore  workers caused  the injury would  have been            unnecessary).   As Morehead's occupational category  does not            fall  within any of those  Congress expressly excepted in the            1984 Amendments,  supra, Jones & Laughlin  would appear under                              _____  ________________            current  construction of  the  statute to  allow Morehead  to            bring  a third-party  negligence  action against  A-K in  its            vessel  capacity.7  To prevail, however, Morehead has to show            that  any negligence on A-K's  part is attributable  to it as            vessel rather than as Morehead's insured LHWCA employer.            V.  Defining the  Vessel's  Duty of  Care: The  Supreme Court            V.  Defining the  Vessel's  Duty of  Care: The  Supreme Court            Cases            Cases                 As  Jones & Laughlin  allows Morehead to  bring a third-                     ________________            party negligence  action against  a vessel owner  even though            the latter is simultaneously his statutorily-immune employer,            we  need to find  the principles for  determining whether the            alleged acts of negligence     the open hatch and  failure to                                            ____________________            7.   The parties have not disputed on appeal that Morehead is            a  statutorily  covered  employee  of a  statutorily  covered            employer.  As a harbor worker with carpentry and linehandling            duties, Morehead meets the  statutory definition of a covered            employee under section 902(3) and does not fall within any of            the  categories of  workers  expressly prohibited  from suing            under section 905(b).                                         -12-                                          12            warn     are attributable to A-K qua vessel owner rather than            qua  employer.  The Supreme Court has indicated that Congress            left to the courts the task  of defining the vessel's duty of            care.  See Howlett, 114 S. Ct. at 2063 ("Because Congress did                   ___ _______            not 'specify the acts  or omissions of the vessel  that would            constitute negligence,'  the contours  of a vessel's  duty to            longshore  workers  are  'left  to be  resolved  through  the            "application  of  accepted principles  of  tort  law and  the            ordinary process of litigation."'") (citing Scindia, 451 U.S.                                                        _______            at 165-66).                   In  Scindia Steam Navigation  Co. v. De  los Santos, 451                     _____________________________    ______________            U.S. 156  (1981), the  Supreme Court  considered the  duty of            care  that a vessel owner owed to an injured longshore worker            who was  employed by  an independent  stevedoring firm.   For            this  common  triangular  relationship  at least      vessel,            stevedore,  and  longshore worker8      the  Court held  that            limiting the vessel's  duty of care  so as  to put the  chief            responsibility upon the  independent stevedore was consistent            with   Congress'  intent  to  permit  third-party  negligence            actions  against the vessel but to eliminate the vessel's no-                                            ____________________            8.   In  Howlett, the Court suggested  that this relationship                     _______            was  the  typical  one  in  the  longshoring  business.   See                                                                      ___            Howlett,  114 S.  Ct.  at 2062  ("The injured  longshoreman's            _______            employer    in most  instances, an independent stevedore, see                                                                      ___            Edmonds  v. Compagnie Generale  Transatlantique, 443 U.S. 256            _______     ___________________________________            (1979)      must pay  the  statutory  benefits regardless  of            fault,  but is  shielded from  any  further liability  to the            longshoreman.") (other citations omitted).                                         -13-                                          13            fault liability (the "unseaworthiness" claim).  In Howlett, a                                                               _______            case  that   also  involved  a  longshore   worker  suing  an            independent vessel,  the Court restated  the vessel's limited            residual duties:                      The first, which courts have come to call                      the  "turnover  duty,"  relates   to  the                            ______________                      condition   of   the   ship    upon   the                      commencement  of  stevedoring  operations                      . . . . The second duty,  applicable once                      stevedoring   operations    have   begun,                      provides that a  shipowner must  exercise                      reasonable  care  to prevent  injuries to                      longshoremen in areas  that remain  under                      the "active control of  the vessel.". . .                           _____________________________                      The  third  duty,  called  the  "duty  to                                                       ________                      intervene,"    concerns   the    vessel's                      _________                      obligations   with    regard   to   cargo                      operations in areas  under the  principal                      control of the independent stevedore.            Howlett,  114 S.  Ct. at  2063 (citations  omitted) (emphasis            _______            added).                 This court  recently applied  these duties in  Keller v.                                                                ______            United  States, 38  F.3d  16 (1st  Cir.  1994), a  case  also            ______________            involving the triangular relationship of  vessel, stevedoring            contractor, and longshore worker.  We described two duties of            a vessel prior  to "turnover":   the "duty  to warn" and  the            "duty  of safe  condition."    Id.  at  23-24.    We  further                                           ___            described three "continuing" duties of care:                           First, the vessel owner might remain                      under  such a  duty  were  it  to  retain                      actual  physical control or  custody of a                      portion  of the vessel, or participate in                      stevedoring  operations.    Scindia,  451                                                  _______                      U.S. at  167, 101 S. Ct.  at 1622 . . . .                      Second,  a duty to intervene might attach                      in  the  event the  vessel owner  were to                                         -14-                                          14                      acquire  actual  knowledge  that  "unsafe                               _________________                      conditions" had developed in the vessel's                                      _________                      appurtenances  since  turnover, that  the                      stevedore-employer  will not  address the                      unsafe    condition,    and   that    the                                              ___                      stevedore's  decision  not to  remedy the                      developing    hazard    was    "obviously                      improvident" in the circumstances.   Id.,                                                           ___                      at 174-75, 101 S. Ct. at 1625-26.  Third,                      even absent actual control, participation                      or knowledge, a post-"turnover"  duty may                      arise if the vessel owner  was obligated,                      by  contract,  statute   or  custom,   to                      monitor  stevedoring  operations for  the                      purpose of detecting and remedying unsafe                      conditions.   Id. at  172, 101 S.  Ct. at                                    __                      1624-25.            Id. at 32.            ___                 Keller  affirmed a  judgment that an  independent vessel                 ______            owner had  breached neither  its turnover nor  its continuing            duties to  a longshore worker who had fallen from a ladder on            board the vessel.   We ruled that the district  court had not            erred in  relying on  testimony based on  industry standards,            which indicated fulfillment  of the turnover  duty.  We  also            found no breach of a continuing duty of the vessel, where the            allegedly dangerous condition  developed during cable loading            operations which were under the stevedore's control.                    As  did the Supreme  Court in Scindia,  this court noted                                               _______            the  independent  stevedore's  greater  skill  and  expertise            relative to the vessel's, making the former better positioned            than  the   vessel  to  prevent  employee   injury,  and  the            traditional stevedoring warranty to perform competently.  See                                                                      ___            id. at 29-30; see also Howlett, 114 S. Ct. at 2065 ("The rule            ___           ___ ____ _______                                         -15-                                          15            relieving  vessels  from  this  general   duty  [to  exercise            reasonable   care  to  discover   dangerous  conditions  that            develop]  rests upon  'the  justifiable expectations  of  the            vessel that  the  stevedore  would  perform  with  reasonable            competence and see to the  safety of the cargo operations.'")            (citation  omitted); Scindia,  451  U.S. at  172 ("[the  1972                                 _______            Amendments] did not undermine the justifiable expectations of            the vessel  that the stevedore would  perform with reasonable            competence and see to  the safety of the cargo  operations").            Further supporting the vessel owner's justifiable reliance on            the  stevedore is  that the  latter  is "subject  to detailed            legislative  and  administrative prescriptions  for affording            its  workers  a 'safe'  workplace."   Keller,  38 F.3d  at 24                                                  ______            (citing  33 U.S.C.     941 and  accompanying regulations,  29            C.F.R.     1918.1-1918.106,   1918.25, and  Scindia, 451 U.S.                                                        _______            at 170).                 In  Scindia and  Howlett  the Supreme  Court, as  noted,                     _______      _______            outlined  a  vessel  owner's duties  of  care  relative  to a            longshore worker employed by  an independent stevedore.9  But            the Supreme Court  has not  yet had occasion  to analyze  the                                            ____________________            9.    Other  courts have  applied  Scindia  duties to  LHWCA-                                               _______            covered  employees  other  than  longshore  workers   in  the            familiar tripartite context.  See, e.g., Elberg, 967  F.2d at                                          ___  ____  ______            1149-50 (welder); Teply v. Mobil Oil Corp., 859 F.2d 375, 377                              ________________________            (5th Cir. 1988) (worker at barge-accessible oil well).                                         -16-                                          16            vessel's duties in a dual capacity case.10  Nor has the Court            considered  to what  degree its  Scindia analysis  applies to                                             _______            non-longshoring  harbor  workers,   whose  duties  and  modus            operandi  often differ  considerably from those  of longshore            workers.11   The Court has  said, though, that  "[o]f course,            [section  905(b)] does  make  it clear  that  a vessel  owner            acting  as its own stevedore is liable only for negligence in            its 'owner'  capacity, not for negligence  in its 'stevedore'            [the insured employer] capacity."  Jones & Laughlin, 462 U.S.                                               ________________            at 531 n.6.                   How to distinguish  between vessel owner  negligence and            employer negligence     where the same entity  is both vessel            owner  and  employer      is  key  here,  because  Morehead's            statutory right to  sue is  solely for injury  caused by  the            vessel negligence of a vessel as third-party.  For other work                                            ____________________            10.  In Jones & Laughlin, the negligence of the dual capacity                    ________________            defendant qua vessel had been conceded.            11.  Longshore  workers such  as  those in  Scindia typically                                                        _______            load  and unload cargo ships that are operated full-time by a            master   and  crew.      Vessel  negligence   can  often   be            distinguished  from  stevedore negligence  by  determining to            what extent the dangerous condition was caused, or allowed to            persist, by reason of the neglect of the vessel's crew rather            than of the stevedoring  employees.  Harbor workers, however,            may  work (as  here) on  construction barges  that are  moved            about by  tugs and have no  fully-dedicated professional crew            as such.  As part of their employment, the harbor workers may            do whatever is  needed from  time to time  to tend lines  and            service the barges, besides performing construction duties as            carpenters, electricians, or the  like.  Thus, assessing what            responsibilities  fall within  the purview  of the   vessel's                                                                 ______            duty of care, as distinguished from the employer's, can be an            elusive quest.                                         -17-                                          17            injuries  within  the  scope  of his  employment,  the  LHWCA            expressly   provides  that  he   must  accept   the  worker's            compensation prescribed under the  LHWCA as "exclusive and in            place of" all other employer liability.  33 U.S.C.   905(a).                 A  further  matter  complicates   this  case:    as  the            defendant  has two capacities, so too, it might be said, does            the  plaintiff.  Morehead was  a carpenter, but  was hired to            perform  both carpentry and  scowmen's duties.   A-K  did not            employ a separate crew on  its barges.12  As we will  discuss            further below, this "double dual capacity" aspect of the case                                 ______            is a factor to be considered in determining whether negligent            acts are properly attributable to a defendant as vessel.13                                            ____________________            12.   As noted, the tugs that towed the barges were captained            and  crewed by  employees of  Woods Hole, which  supplied the            tugs.   These  employees  did not  handle  the lines  on  the            barges; under union  rules, only carpenters/scowmen  employed            by A-K (such as Morehead) did.            13.    This mix  of responsibilities  might, in  other cases,            expand the range of possible remedies available to an injured            employee, who must then choose between the mutually exclusive            regimes of the LHWCA and Jones Act.  See Chandris, 115 S. Ct.                                                 ___ ________            at  2183-84 (citing  McDermott Int'l,  Inc. v.  Wilander, 498                                 ______________________     ________            U.S.  337, 347 (1991)).  In Southwest Marine, Inc. v. Gizoni,                                        ______________________    ______            502  U.S. 81 (1991), the  Supreme Court held  that a shipyard            rigging  foreman      who handled  lines  connecting floating            platforms to vessels under  repair    was not precluded  as a            matter of law from seeking a tort  remedy under the Jones Act            merely   because  ship   repairers   are  among   those  jobs            specifically  enumerated under the LHWCA.  See id. at 89 ("By                                                       ___ ___            its terms the LHWCA preserves the Jones Act remedy for vessel            crewmen, even if they are employed by a shipyard.  A maritime            worker  is limited to LHWCA remedies only if no genuine issue            of  fact exists as  to whether the worker  was a seaman under            the Jones Act.").                   Morehead  withdrew  his  Jones  Act   claim,  presumably            because  he  did not  believe  he could  establish  Jones Act                                         -18-                                          18            VI. Lower Court Precedent            VI. Lower Court Precedent                 While  the  Supreme Court  has  said  little about  dual            capacity cases  beyond giving approval  to the suing  of dual            capacity  defendants  in their  vessel  owner capacity,  some            circuits have decided cases similar to ours.  They have asked            whether  the alleged negligence was due  to the defendant qua            employer or  qua vessel,  with recovery  allowed only in  the            latter instance.  And,  principles borrowed from Scindia have                                                             _______            been applied to harbor workers as well as longshore workers.                 Applying  Scindia to  a  dual capacity  defendant raises                           _______            questions even in the longshoring context.  For example, if a            defendant is aware of a defect in the work  area as stevedore            employer, should  such awareness also be attributed  to it as            vessel  owner?   And  as we  note  supra, Scindia  and Keller                                               _____  _______      ______            emphasized  a  vessel  owner's  reliance  upon  the  presumed            expertise of the stevedore, an independent contractor.  Where            the vessel owner is  also the stevedore, is it  reasonable to            attribute such reliance?                                            ____________________            seaman status.  Nonetheless,  Morehead has attempted to focus            our  attention  on   the  vessel-type  responsibilities  that            Breault  performed  in  the  period  before  the  injury,  as            discussed infra.  While an emphasis on vessel-type duties may                      _____            be  appropriate for  the  fact-specific inquiry  into  seaman            status, we place little weight  on this attempt to  bifurcate            vessel  and construction  activities when these  workers were            hired  to perform both.  The definition of a covered employee            under the LHWCA excludes "a master or member of a crew of any            vessel."  33  U.S.C.    902(3).  It  seems inconsistent  with            this  exclusion for Morehead to buttress  his claim under the            LHWCA with  arguments portraying a  fellow employee, Breault,            as if he were a member of the crew of the vessel.  See infra.                                                               ___ _____                                         -19-                                          19                 Concerns  of  this  nature  led the  Second  Circuit  in            Fanetti  v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir. 1982),            _______     ___________________            cert.  denied,  463 U.S.  1206  (1983),  to indicate  that  a            _____________            longshore  worker's claim  against a dual  capacity defendant            would be analyzed differently from a claim against a separate            shipowner  brought   by  the   employee  of   an  independent            stevedore.   In Fanetti,  a longshore  worker was injured  on                            _______            deck  by an unsafe  condition.   The dual  capacity defendant            argued that  1) in  its role  as  employer-stevedore, it  was            primarily responsible for the safety of the workplace, and 2)            as vessel owner, it should be able to rely upon its expertise            as stevedore,  thereby avoiding  liability as vessel  for the            negligence.                  The Second  Circuit rejected the defendant's  attempt to            escape  liability  in negligence  as  vessel  by seizing  its            "employer  hat."  Relying on  a dissent by  Judge Friendly in            Canizzo v. Farrell Lines,  Inc., 579 F.2d 682, 687  (2d Cir.)            _______    ____________________            (Friendly,  J.,  dissenting),  cert.  denied,  439  U.S.  929                                           _____________            (1978),  the court of appeals  ruled that a  vessel assumes a            greater  duty of care  when there is  no independent employer            _______                                  ___________            responsible for  workplace conditions,  upon whom  the vessel            owner  may rely  to oversee  the safety  of the  workplace on            board.  See  Fanetti, 678  F.2d at 428  (citing Canizzo,  579                    ___  _______                            _______            F.2d at 689-90).                                         -20-                                          20                 Rearranging duties of care  as in Fanetti raises serious                                                   _______            problems, discussed  hereafter,  by enlarging  an  employer's            tort liability  beyond the  purposes of the  1972 Amendments.            Cf.  Howlett, 114  S. Ct.  at 2063.   Fanetti,  moreover, was            ___  _______                          _______            decided  before  Jones &  Laughlin  was  handed down  in  the                             _________________            Supreme Court.  We do not think that the Second Circuit today            would  endorse Fanetti's  broadened duty  of care,  given the                           _______            Supreme Court's remark "that a vessel owner acting as its own            stevedore  is  liable  only  for negligence  in  its  'owner'            capacity, not  for negligence in  its 'stevedore'  capacity."            Jones & Laughlin, 462 U.S. at 531 n.6.  This comment suggests            ________________            that  the  Court expected  the  limited  vessel liability  in            Scindia to carry  over to dual  capacity situations as  well.            _______            No later case  from the  Second Circuit, nor  from any  other            circuit, has been called to our attention following Fanetti's                                                                _______            enlargement   of  a   vessel's  duty   in  a   dual  capacity            situation.14   Cf.  Guilles, 12  F.3d at  383, 387  (a recent                           ___  _______            Second  Circuit  decision   citing  Fifth  Circuit  authority            contrary to Fanetti  and ruling  only that a  valid cause  of                        _______            action under  section 905(b)  existed, where the  parties had                                            ____________________            14.   Fanetti  might have reached  the same result  of vessel                  _______            liability without  applying  a broader  duty  of care.    The            defendant did not dispute that the vessel's crew created  the            hazard  while   performing  work  unrelated   to  longshoring            operations.    See  Fanetti,  678  F.2d  at  426.    In  this                           ___  _______            situation,  the  defendant  qua  vessel  arguably had  active            control over the crew and knew or should have known about the            injury-causing  actions,  making  it  liable  even  under the            Scindia standards.            _______                                         -21-                                          21            stipulated  to  the vessel's  negligence).    Whether or  not            termed dicta, we  do not  feel free to  overlook the  Court's            statement in Jones & Laughlin.                           ________________                 Contrary  to  Fanetti,  the  Fifth  Circuit,  which  has                               _______            decided a great number of LHWCA cases, has allocated the same            vessel duties of care to dual and single capacity defendants.            It  regards  this approach  as  in keeping  with  the Supreme            Court's  limiting of a  vessel's duty of  care (e.g., Scindia                                                            ____  _______            and Jones & Laughlin),  and with Congress' intent to  provide                ________________            injured  workers the  same  remedies, regardless  of  whether            their  employer or another happens  to be the  legal owner of            the vessel.15                  The seminal  Fifth Circuit  case was Castorina  v. Lykes                                                      _________     _____            Bros.  S.S., 758 F.2d 1025 (5th Cir.), cert. denied, 474 U.S.            ___________                            ____________                                            ____________________            15.    Other courts have followed suit.  See, e.g., Halpin v.                                                     ___  ____  ______            Atkinson-Kiewit,  J.V.,  894 F.  Supp.  486  (D. Mass.  1995)            ______________________            (applying  Scindia duties and  denying defendant's motion for                       _______            partial judgment  on the  pleadings);  DiGiovanni  v. Traylor                                                   __________     _______            Bros., 855 F.  Supp. 37 (D.R.I.  1994), appeal docketed,  No.            _____                                   _______________            94-1775  (1st Cir.  July 27,  1994) (finding no  violation of            Scindia  duties where hazard was obvious following "turnover"            _______            of the  vessel, defendant  as vessel lacked  "active control"            over or  knowledge of leak  from equipment placed  aboard for            employment operations,  and  the circumstances  did not  give            rise to  a duty  to intervene);  Koernschild v. W.H.  Streit,                                             ___________    _____________            Inc., 834 F. Supp. 711 (D.N.J. 1993) (applying Scindia duties            ____                                           _______            and denying  summary judgment to the  defendant where factual            dispute existed concerning  the plaintiff's awareness  of the            hazard); Coats v. Luedtke  Eng'g Co., 744 F. Supp.  884 (E.D.                     _____    __________________            Wisc. 1990)  (deeming  "employer" responsible  for  providing            employee  a safe  passageway to  his job  on the  vessel, and            granting summary judgment to the defendant given its  lack of            "active  control" as  vessel over  a condition  off-board the            vessel).                                         -22-                                          22            846 (1985).   There, a longshore  worker exposed to  asbestos            during  cargo  operations  alleged  that  his employer-vessel            owner knew  of the  harm qua  vessel and  failed to  make the            vessel  safe.    The  Fifth  Circuit  stated  that  the LHWCA            compensation scheme "requires us  to separate the  negligence            of the shipowner  and that  of the stevedore,  even when  the            shipowner performs  its own stevedoring activities."   Id. at                                                                   ___            1033.    Noting  that  the  alleged  harm had  arisen  during            stevedoring  activities,  the  court  refused  to impute  any            knowledge of this danger by the employer to it as vessel.  It            explained:                      To impute this  knowledge to a shipowner-                      employer  would be to  hold it  liable in                      tort   for   damages  arising   from  its                      negligence as  stevedore, and effectively                      to  eliminate the  exclusivity provisions                      of sections 905(a) & (b).  This result is                      contrary to  the language and  purpose of                      the Act  as amended.   We therefore  hold                      that the  duty owed  by a shipowner  to a                      longshoreman under section 905(b) is that                      established by Scindia  and its  progeny;                                     _______                      this  duty  is  neither   heightened  nor                      diminished   when  the   longshoreman  is                      employed directly by the vessel.            Id.;  accord Tran v. Manitowoc  Eng'g Co., 767  F.2d 223, 228            ___   ______ ____    ____________________            (5th Cir. 1985).                 On  the facts of  Castorina, it  was relatively  easy to                                   _________            apply the Scindia standard  to the shipowner-employer.  In  a                      _______            later  case,  the Fifth  Circuit  applied Scindia  in  a more                                                      _______            complex  situation involving a  harbor worker.   In Levene v.                                                                ______            Pintail Enters., 943 F.2d 528  (5th Cir. 1991), cert. denied,            _______________                                 ____________                                         -23-                                          23            504  U.S.  940  (1992),  the  injured employee  was  a  heavy            equipment operator  who  performed other  maritime  tasks  as            well.   A  captain  had instructed  Levene  to untie  another            owner's barge,  which blocked access to  the particular barge            they had been instructed to pick  up.  Levene was injured  on            the  other owner's  barge, where  grease and  scrap materials            were present on the deck.  See id. at 530.                                         ___ ___                 Applying  the  Scindia duty  of  turnover  and the  duty                                _______            arising from  active control over a  dangerous condition, the            Levene  court  rejected  the  employee's claim.    The  court            ______            explained that Scindia did not mandate "extending the duty of                           _______            a shipowner  to protection against hazards  on another ship."            Id. at 534.  "[W]e  decline to fashion a general  standard of            ___            'reasonable care'  that would require a  shipowner to protect            against any and all hazards a longshoreman might encounter in            the course of  his work."   Id.  Further,  the court did  not                                        ___            view  "the fleeting  contact  between Pintail  [the employer-            vessel owner]  and the BB-242 [the separate owner's barge] as            the  kind  of  control that  could  result  in  a finding  of            liability."  Id. at 535.  It noted that the duty arising from                         ___            active control  over a  hazardous condition may  be triggered            when  the dangerous condition is  on the vessel  itself.  See                                                                      ___            id. (discussing  Masinter v. Tenneco  Oil Co., 867  F.2d 892,            ___              ________    ________________            896-97 (5th Cir. 1989), a non-dual capacity case in which the            vessel crew was  solely responsible for placing a stairway in                                         -24-                                          24            a way  that caused injury  to a  worker, and  the vessel  was            "contractually  bound to conduct  the drilling operations and             ____________________            remained  in  control  of   the  vessel  to  effectuate  this            obligation").   Even though  the captain "temporarily  was in            'command'" of both the vessel and the separate owner's barge,            the court found that this did not rise to the level of active            control required.  Id.                               ___            VII.  Resolving This Case            VII.  Resolving This Case                 We agree  with the  Fifth Circuit, for  similar reasons,            that  the  duties of  care  described  in  Scindia should  be                                                       _______            applied in  dual capacity cases  insofar as the  facts allow.            To do so, a  court may have to divide  the employer-shipowner            into  a  hypothetical  independent  employer  and independent            vessel owner, each  separately holding  the duties  allocated            under principles suggested in Scindia.  A court may sometimes                                          _______            be  assisted  in this  process  by  the defendant's  internal            employment  arrangements assigning  certain personnel  to the            "vessel" side of  its operation.   On occasion, however,  the            duties  and work  arrangements pertaining  to a  suing harbor            worker may  be so foreign  to those in  Scindia's stevedoring                                                    _______            context that Scindia's  analysis will become  no more than  a                         _______            point of departure.  Nonetheless, Scindia's general approach,                                              _______            at least, can be followed and,  in many cases, some or all of            its express analysis may be useable.                                         -25-                                          25                 The statutory language  and the  legislative history  of            the  1972  and  1984  Amendments  plainly evidence  Congress'            intent that  the worker's compensation scheme  be the primary            remedy for  all covered workers, regardless  of an employer's            commercial practice  in regard to  vessel ownership.   See 33                                                                   ___            U.S.C.   905(a) (exclusiveness of employer's liability); 1984            U.S.C.C.A.N. at 2740 ("In the Committee's view, the Longshore            Act should be the primary source of  compensation for covered                              _______            workers who are disabled or who may die as a result of a job-            related injury  or disease.") (emphasis  supplied); H.R. Rep.            No.  92-1441,   92d  Cong.,  2d  Sess.,   reprinted  in  1972                                                      _________  __            U.S.C.C.A.N. 4698, 4705 ("[T]he bill  provides in the case of            a longshoreman  who is employed directly by  the vessel there            will be no action for damages if the injury was caused by the            negligence  of  persons  engaged  in  performing  longshoring            services . . . .   The  Committee's intent  is that the  same                                                                     ____            principles  should  apply  in  determining  liability  of the            __________            vessel which employs its own longshoremen . . . as apply when            an independent contractor  employs such persons.")  (emphasis            supplied).    The  1972  Amendments  carefully  balanced  the            concerns of employers, vessels, and  covered workers.  We are            not disposed to upset that balance by expanding the liability            of employers  that act simultaneously as  vessel owners, when            the statute  does not call for such a reading and the Supreme            Court has cautioned against it.                                           -26-                                          26                 As already observed, Scindia will  sometimes afford less                                      _______            direct guidance on  those duties owed to harbor  workers than            it does on those owed to longshore workers.  Courts will need            to  decide,  on a  case-specific  basis,  whether the  harbor            worker's employment arrangement  sufficiently resembles  that            in Scindia to make particular specifics germane.                 _______                 Here,   the   employment  arrangement   is  sufficiently            analogous  to make Scindia a useful guide.  The Scindia Court                               _______                      _______            reasoned that  once longshore  workers came aboard  and began            carrying  out   their  cargo  duties   under  a   stevedore's            supervision,  the  vessel  itself  had  no  general  duty  to            exercise  reasonable  care  to inspect  for  unsafe workplace            conditions; rather,  it could rely on  the longshore worker's            employer to do so.  See Scindia, 451 U.S. at  172.  Here, A-K                                ___ _______            hired harbor workers through the local carpenters' union and,            as their employer, supervised them as they tended the barges,            handling the  lines and carrying  out construction activities            thereon.   Both  types  of activities       construction  and            scowmen's work      were assigned to them and  were performed            for A-K qua  employer.  Workers like Morehead  received their            daily instructions from  A-K's carpenter-foremen, while A-K's            project safety manager met  periodically with them to discuss            site-specific safety issues.  Therefore,  Scindia's principle                                                      _______            of  limited liability  of the  vessel sensibly  and logically            applies, because the employees effectively assumed control of                                         -27-                                          27            the  barges  working  under  A-K  in its  capacity  as  their            employer.  A-K qua shipowner had no separate captain and crew            assigned to  the barge.   The 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.   Rather  the alleged  acts of            negligence were those of  fellow harbor workers acting within            the scope of their daily employment for the employer.  Cf. 33                                                                   ___            U.S.C.   905(b) (prohibiting liability of  an employer-vessel            owner for acts "caused  by the negligence of  persons engaged            in providing stevedoring services to the vessel").                 Morehead  does  not assert  any  breach  of the  Scindia                                                                  _______            "turnover" duty (e.g., that A-K, as vessel owner, turned over                             ____            the barge to  the harbor workers knowing or with  the duty to            have known, of  some defect  in the barge  that later  caused            injury).  Morehead argues  only that we should deem  that A-K            as vessel violated duties it owed him because, at the time he            was injured, A-K as  vessel (rather than A-K as  employer) is            asserted  to  have  had  "active  control"  over  or  "actual            knowledge"  of the open  hatch.  Cf.  Howlett, 114  S. Ct. at                                             ___  _______            2063  (noting  appellant  confined  arguments  to  breach  of            turnover duty  to warn);  Elberg,  967 F.2d  at 1150  (noting                                      ______            appellant confined arguments to breach of duty to intervene).            Equating employment for worker's compensation purposes solely            with construction activity,  he asserts that  no construction                                         -28-                                          28            purpose, hence  no employment  purpose, was being  pursued at            the time of his injury.   He draws support from  the district            court's findings that the barges  were set alongside the pier            and were  not  carrying  construction  equipment.    Morehead            emphasizes that A-K had instructed  Breault to open the hatch            to air the barge out so that A-K could exercise what Morehead            argues  was a  vessel function     having  a  marine surveyor            examine  the  barge before  returning it  to  the owner.   He            further claims  that A-K's safety manager  or other carpenter            foremen knew or should  have known that the open  hatch was a            potentially hazardous condition.  Resting on purported agency            principles, Morehead asks us  to assign these employees' acts            to A-K in its vessel capacity, on the theory that  A-K in its            vessel  rather than  employer  capacity had  control over  or            knowledge of the open hatch and the failure to warn about it.                 A-K  responds that  Breault  was  performing  employment            duties when he opened the hatch and when he threw the line to            Morehead  before the  accident.   Like Morehead,  Breault had            been hired both for carpenter and scowman duties.  As typical            in  the case of  harbor workers, as  distinct from land-based            carpenters, the men 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.    A-K            maintains that  its "active control" over  or knowledge about            the  open  hatch  into   which  Morehead  fell  is  therefore                                         -29-                                          29            attributable to it as employer, not as vessel since the hatch            was opened (presumably by Breault) and the line thrown in the            course of harbor worker duties  which both men were regularly            hired to perform.                 We agree with A-K that, for present purposes, the barges            tended by  its carpenters/scowmen were operated  within A-K's            control  and knowledge qua employer.   The barges, which were                                   ____________            Breault and  Morehead's workplace,  can be analogized  to the            areas  of a  vessel taken  over by  longshore workers  in the            Scindia  setting.   Under  the principles  of that  case, the            _______            stevedore      or, in a dual capacity case, the employer in a            stevedore capacity    is ordinarily  liable for the safety of            the workplace and for  any injuries that occur.   The vessel,            or the  employer in  its vessel  capacity, is  not implicated            except  in the  unusual circumstance  that the  vessel itself            continues to exercise active control over the work area.                 We  recognize that  a  competing analysis  is  possible,            which, however, we reject.  A court could make an attempt  to            ascribe Breault's and Morehead's specific activities relative            to Morehead's  injury  either to  their  employer or  to  the            vessel,  depending on  how the  court chose  to classify  the            objectives that those activities were thought to serve.   One            could  inquire whether  the hatch  was opened  to "help"  the            vessel  (i.e., to air it  in preparation for  returning it to                     ____            the owner)  rather than  in furtherance of  some construction                                         -30-                                          30            activity.   If  so, the  defendant qua  vessel might  be held            liable  for any negligence.  Such an analysis, however, would            involve courts in slippery semantical debate.  Is an accident            while  tying up a barge at a construction site in furtherance            of a  "construction" objective or  a "vessel" objective?   If            both objectives  are being  served, which predominates?   And            how does one  square the  fact that the  employees here  were            hired by the employer for scowmen not  just carpenter duties?            Harbor workers are, after all, by definition, employees whose            paid duties include maritime components.                 As  noted,  the statute  makes  the employer's  worker's            compensation liability  "exclusive and in place  of all other            liability . . . ."   33  U.S.C.    905(a).   The  legislative            history and  the Court's precedents since  1972 make worker's            compensation the primary remedy for an injured employee.  The            exception  in  section  905(b)  for  third-party  negligence,            narrowed in  1984,16 explicitly requires a  finding of vessel                                                                   ______            fault.   We  would be  disregarding Congressional  intent and            might  even  be returning  in the  direction of  the Sieracki                                                                 ________            doctrine which did not require such a showing, see supra n.6,                                                           ___ _____            if we  were to attribute  some of the  regular duties that  a            harbor worker  is employed to perform to  the vessel, because                                            ____________________            16.   Cf. Roach v. M/V Aqua  Grace, 857 F.2d 1575, 1580 (11th                  ___ _____    _______________            Cir. 1988) ("While this [1984] amendment does not disturb the            holding of Jones &  Laughlin Steel Corp., it does  indicate a                       _____________________________            Congressional intent  to limit  invocation [sic] of  the dual            capacity doctrine under the Act.").                                         -31-                                          31            of  their  speculative seaman-like  character,  and  only the            residue  to the employer.  This approach would greatly expand            a defendant's liability qua vessel  in a work arrangement not            too  different  from that  in  Scindia, i.e.,  one  where the                                           _______  ____            employees have effectively taken over the vessel to carry out            their employment  duties under their  employer's supervision.            A similar expansion of liability would follow from too easily            assigning  any knowledge  acquired  by A-K  employees in  the            regular course  of employment (such as  the carpenter foremen            or  worksite  safety manager)  to A-K  in a  vessel capacity.            Neither the statute  nor case law supports such  an approach,            which,  on  the  present  facts, would  leave  this  worker's            compensation statute  as a strange hybrid  combining mandated            compensation coverage  with a widespread license  for covered            employees  to   sue  because  of  the   negligence  of  their            supervisors and fellow employees within the workplace.                 One of  the  essential purposes  of  the 1972  and  1984            Amendments  was to  provide  employees and  employers with  a            greater degree of  certainty as  to the  coverage in  effect.            The legislative history of the 1984 Amendments documents this            concern:                      [T]he 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                                         -32-                                          32                      of  the  essential   purposes  of   these                      amendments.            1984   U.S.C.C.A.N.   at    2736-2737.      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  coverage.   As            Morehead's  and Breault's  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.  Cf. Gay,  915 F.2d at  1011 ("[T]o deny                                  ___ ___            Gay [the employee] a  cause of action  in the morning but  to            grant him one in  the afternoon is to  make his rights  under            the  Act  as random  and indiscriminate  as the  sea herself.            This sort of incertitude is precisely what Congress attempted            to  eliminate  from  the LHWCA  in  both  its  1972 and  1984            amendments.") (footnote omitted); cf. Chandris, 115 S. Ct. at                                              ___ ________            2187 ("In evaluating  the employment-related connection of  a            maritime worker to a vessel in navigation, courts  should not            employ 'a "snapshot" test  for seaman status, inspecting only            the situation as it exists  at the instant of  injury'. . . .            [A] worker may not oscillate back and forth between Jones Act            coverage  and other  remedies  depending on  the activity  in            which  the worker  was  engaged  while injured.")  (citations            omitted).                                          -33-                                          33                 Cases will, of course, arise from time to time involving            an  injury that was  negligently caused by  someone acting as            the  agent of the vessel owner rather than of the employer.17            Here, however, we see nothing requiring the district court to            find  that Breault, in leaving  open the hatch,  acted in any            capacity other  than as  Morehead's fellow  employee pursuing            assigned  harbor worker duties rather  than as A-K's agent in            its distinct shipowner's capacity.  Morehead and Breault were            hired  to perform  both construction  and scowmen duties.   A            carpenter-supervisor  instructed Breault  to open  the hatch.            A-K's project safety manager  generally oversaw the safety of            work  operations.   Morehead  has  not  shown why,  in  these            circumstances, A-K  in its distinct capacity as  owner of the            vessel  rather than as his employer, may have breached a duty            of care to protect him against the open hatch.                 We conclude that the district court correctly viewed the            open hatch  as  a condition  temporarily  created by  A-K  as            employer, and  affirm the district court's  judgment in favor            of A-K.                 So ordered.                 __________                                            ____________________            17.    Cf. Pichoff v. Bisso Towboat Co., 748 F.2d 300, 302-03                   ___ _______    _________________            (5th  Cir. 1984)  (ruling  in a  dual  capacity case  that  a            general manager  who ordered a  hurried inspection of  a fuel            tank  leak and failed to provide adequate lighting was acting            as an agent of the vessel).                                         -34-                                          34                            - Concurring Opinion Follows -                            - Concurring Opinion Follows -                                         -35-                                          35                 SELYA,  Circuit  Judge  (concurring).    Under  existing                 SELYA,  Circuit  Judge  (concurring).                         ______________            Supreme Court precedent, this  is a close and a  vexing case.            A large part  of the problem is that the  Court's language in            Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-32            ____________________________    _______            &  n.6  (1983)    whether deemed  a  holding or  a considered            dictum    forces judges who  are called upon  to decide "dual            capacity"  LHWCA   cases  to  engage  in   a  legal  fiction,            pretending  that  a  single  entity   (the  injured  person's            employer)  is  really  two  distinct  and separable  entities            (employer and vessel owner  pro hac vice).  In  my view, this                                        ___ ___ ____            self-induced schizophrenia muddles  the law and  disrupts the            delicate balance that Congress  labored to strike between the            entitlement of  stevedores and  others similarly  situated to            workers'  compensation  benefits,  and  the   entitlement  of            employers  who  provide   that  coverage  to  immunity   from            negligence  suits.  In short,  I believe that Congress should            have  been taken literally  when it wrote  that an employer's            responsibility  to  furnish  workers'  compensation  benefits            under  the  LHWCA is  "exclusive and  in  place of  all other            liability of such  employer to  the employee."   33 U.S.C.               905(a).                  This reasoning leads me  to conclude, with all respect,            either that  Congress  inadvertently muddied  the  waters  in            phrasing  LHWCA    905(b),  or, alternatively,  that Jones  &                                                                 ________            Laughlin was wrongly  decided.  Still,  I recognize that  the            ________                                         -36-                                          36            Supreme Court's opinion is binding on this court, and that we            therefore must undertake what Judge Campbell charitably terms            "an elusive  quest."  Ante  at note  11.  Once  reconciled to                                  ____            that necessity, I  can in good  conscience join this  court's            cogent opinion.   I  write separately,  however, to  urge the            Supreme Court  and Congress to  reflect upon  the mind  games            that Jones  & Laughlin    particularly  as applied to  harbor                 _________________            workers    compels us to play, and, hopefully, to revisit the            question  of  whether  "dual  capacity"  employers should  be            liable  at  all  in   negligence  actions  brought  by  their            employees.                              Dissenting opinion follows                                Dissenting opinion follows                                           -37-                                          37                 CYR,  Circuit  Judge  (dissenting).       As  I   am  in                 CYR,  Circuit  Judge  (dissenting).                       ______________            fundamental disagreement with the treatment given  the duties            of care incumbent  upon dual capacity LHWCA  employers by the            en  banc court under the Supreme Court decision in Scindia, I                                                               _______            respectfully dissent.                                          I                 Two  years after  its seminal  decision in  Scindia, see                                                             _______  ___            supra  Section V (en  banc opinion),  the Supreme  Court held            _____            that an injured longshore worker who receives LHWCA compensa-            tion benefits is not barred from bringing a negligence action            against  his  vessel-owner  employer  under  section  905(b),            notwithstanding   the  seemingly   unqualified  "exclusivity"            provision in section 905(a) that the sole liability to  which            maritime  employers may  be subjected  is LHWCA  compensation            benefits.  See Jones & Laughlin, 462 U.S. at 530-31; see also                       ___ ________________                      ___ ____            supra note  5  (en  banc opinion).    Beyond  the  conclusive            _____            contextual support for this holding, the relevant legislative            history  confirms a congressional intendment "that the rights            of an injured longshoreman . . . should not depend on whether            he was employed directly  by the vessel or by  an independent            contractor."  Jones  & Laughlin, 462 U.S.  at 531-32 (quoting                          _________________            H.R. Rep. No. 92-1441).1                                            ____________________            1.  The full House Report excerpt states:                       The Committee has also recognized the need for                 special  provisions to  deal  with a  case where  a                 longshoreman   or  ship  builder  or  repairman  is                                         -37-                                          37                 Without further elaboration, the Jones  & Laughlin Court                                                  _________________            appended a conclusory footnote ("footnote 6") to its holding:            "Of  course,   [905(b)] does  make clear that  a vessel owner            acting  as its own stevedore is liable only for negligence in            its `owner'  capacity, not for negligence  in its `stevedore'            capacity."  Id.  at 531 n.6.   The  en banc court  interprets                        ___            footnote  6 as  the Supreme  Court's endorsement  of  a legal            fiction central to the present controversy:   a dual capacity            employer  engaged  in  maritime   construction  presumptively            operates  in two  wholly  discrete capacities  (i.e.,  vessel            owner and construction company).  I respectfully disagree.                                            ____________________                 employed  directly by  the vessel.   In  such case,                 notwithstanding the  fact  that the  vessel is  the                 employer, the Supreme Court,  in Reed v. S.S. Yaka,                                                  ____    _________                 373  U.S. 410  (1963), and  Jackson v.  Lykes Bros.                                             _______     ___________                 Steamship Co., 386 U.S. [731] (1967), held that the                 _____________                 unseaworthiness remedy is  available to the injured                 employee.  The  Committee believes that the  rights                 of  an injured  longshoreman  or  ship  builder  or                 repairman  should  not  depend  on  whether  he  is                 employed   directly  by   the  vessel   or  by   an                 independent  contractor.    Accordingly,  the  bill                 provides  in  the case  of  a  longshoreman who  is                 employed directly  by the  vessel there will  be no                 action for damages if the injury  was caused by the                 negligence of  persons engaged in  performing long-                 shoring  services.   Similar provisions  are appli-                 cable  to shipbuilding or repair employees employed                 directly by the vessel.   The Committee's intent is                                           ___ ___________ ______ __                 that  the same  principles should  apply in  deter-                 ____  ___ ____  __________ ______  _____ __  ______                 mining  liability of  the vessel which  employs its                 ______  _________ __  ___ ______ _____  _______ ___                 own longshoremen or  ship builders or repairmen  as                 ___ ____________ __  ____ ________ __ _________  __                 apply  when an independent  contractor employs such                 _____  ____ __ ___________  __________ _______ ____                 persons.                 _______            H.R. Rep. No. 92-1441, 92d Cong., 1st Sess. 7-8, reprinted in                                                             _________ __            1972 U.S.C.C.A.N. at 4705 (emphasis added).                                          -38-                                          38                 First, footnote  6 is  unelucidated dictum.   See Dedham                                                               ___ ______            Water Co.,  Inc. v.  Cumberland Farms Dairy,  Inc., 972  F.2d            ________________     _____________________________            453, 459 (1st Cir. 1992) ("Dictum constitutes neither the law            of  the case nor the stuff of binding precedent.").  Although            great deference normally is accorded considered Supreme Court            dicta,  see,  e.g., Bank of New  England Old Colony, N.A.  v.                    ___   ____  _____________________________________            Clark, 986 F.2d 600,  603 (1st Cir. 1993), the  only question            _____            of statutory interpretation confronting  the Court in Jones &                                                                  _______            Laughlin  was whether the LHWCA  imposed any duty  of care at            ________                                 ___ ____  __ ____ __            all upon dual capacity vessel owners,  since the parties were            ___            in  agreement that the defendant vessel owner would be liable            for its  negligent conduct  absent any  such per  se immunity                                                         ___  __            prescribed by  statute.2  Not only did the parties in Jones &                                                                  _______            Laughlin not  brief the complex legal  issue presently before            ________            us, but there is no exegetic discussion    either in footnote            6  or elsewhere  in the  Jones &  Laughlin opinion     of the                                     _________________            legal  issue  itself,  the  LHWCA's  legislative  history, or            supportive Supreme  Court precedent.   See Heck  v. Humphrey,                                                   ___ ____     ________            512 U.S. 477, 114 S.Ct. 2364,  2370 (1994) (rejecting Court's            own dictum in prior  opinion which "had no cause  to address,            and did  not carefully consider, the  damages question before            us today").                                            ____________________            2.  Longshoreman Pfeifer  had  slipped and  fallen  while  on            board  a barge owned by his  employer, which had "negligently            failed  to remove [ice] from the gunnels."  Jones & Laughlin,                                                        ________________            462 U.S. at 526.                                          -39-                                          39                 More importantly, even if footnote 6  were to be consid-            ered   binding  precedent,  its   curt  conclusion  begs  the            essential  question:  in defining the duties of care, how are            the   courts  to  determine  in  what  conditions  particular            negligent conduct  is to  be considered  traceable to  a dual            capacity employer  qua vessel owner?   Far  from creating  or                               ___            endorsing a presumptive legal  fiction, footnote 6 may simply            impart the Court's view that a dual capacity employer in some            future  case might  yet be  able to demonstrate  an efficient            bifurcation of its statutory duties of  care under the LHWCA.            The current circuit split on this issue thus indicates at the            very  least that  the legal  fiction purportedly  endorsed by            footnote 6  has not  won  universal acceptance  in the  lower            courts.                 The Fifth  Circuit has  accepted footnote 6  as evidence            that  the Supreme Court meant  to endorse an artificial legal            construct deemed central to the LHWCA's integrity as a proto-            typical workers' compensation statute.   See Levene, 943 F.2d                                                     ___ ______            at 531 (citing Castorina, 758 F.2d at 1032-33 (noting:  since                           _________            legislative history contemplates that all  maritime employees            receive the "same" remedy, "[w]e can find no reason to impose            on  a shipowner  a greater duty  of care  toward longshoremen            because the  shipowner  conducts its  own stevedoring  opera-            tions")).  That is to say, a contrary construction of section            905(b) would deprive dual capacity employers of their antici-                                         -40-                                          40            pated return for assuming  the burden of contributing  to the            section 904 workers' compensation scheme.                 The Second Circuit,  on the other hand,  has pointed out            that  attempting  to fit  dual  capacity  employers into  the            traditional   Scindia  mold  causes   serious  anomalies  and                          _______            artificialities not  present in single capacity  cases.  See,                                                                     ___            e.g.,  Fanetti, 678  F.2d at  428 ("[A]  [jury]  charge which            ____   _______            relieves a  shipowner of liability for  a dangerous condition            which was `known to the stevedore or to any of its employees'            is clearly inappropriate where  the shipowner, itself, is the            stevedore.'")  (quoting Napoli  v. Hellenic Lines,  Ltd., 536                                    ______     _____________________            F.2d 505,  508 (2d Cir.  1976)).  For example,  as the Second            Circuit observed:                       Where . . .  there is no independent con-                      _____        _____ __ __ ___________ ____                      tractor, it is part of the ship's duty to                      _______  __ __         ___ ______ ____ __                      exercise reasonable care  to inspect  its                      ________ __________ ____                      own workers' workplace, to  remove grease                      spills, etc.   In such a case there is no                      "independent  contractor"   with  primary                      responsibility  upon  whom  the ship  may                      properly rely .  . . .   Things are  very                      different when the longshoreman works for                      an independent stevedore who  has primary                      responsibility for the workplace.                         Id.  (quoting  Canizzo, 579  F.2d  at  689-90 (Friendly,  J.,            ___            _______            dissenting,  in part))  (emphasis added).   Although  Fanetti                                                                  _______            preceded  Jones  & Laughlin,  whereas the  Castorina decision                      _________________                _________                                         -41-                                          41            came after, there  is no indication  that the Second  Circuit            has altered its position.3                                          II                                          II                 The en banc court embraces the presumptive "bifurcation"            approach adopted in Castorina out of concern that the Fanetti                                _________                         _______            option would eviscerate the  1972 LHWCA amendments' principal            purpose:  to offer  all maritime employers maximum protection            from unpredictable  tort liability in return  for their fixed            monetary contributions  to the LHWCA compensation  fund.  See                                                                      ___            also DiGiovanni v. Traylor  Brothers, Inc., 855 F.  Supp. 37,            ____ __________    _______________________            42 (D.R.I.  1994) (same,  citing by analogy  to "exclusivity"            provision in  Rhode Island Workers' Compensation Statute, see                                                                      ___            R.I.  Gen. Laws   28-29-20 (1994)).  Accordingly, the en banc            court  views the  bifurcation fiction  as the  only means  of            achieving  the  congressional goal  "that  the  rights of  an                                            ____________________            3.  The en banc court  notes that the Fanetti panel  need not                                                  _______            have announced so broad a  statement of the duties  incumbent            upon dual capacity  employers.   See supra note  14 (en  banc                                             ___ _____            opinion).   In my view, this overlooks the purposes served by            such statements:   first, to explicate  the court's rationale            through reference to potential anomalies and inequities which            might  otherwise  be  thought  to  undermine  its  rationale;            second, to provide  guidance on remand.  See,  e.g., Scindia,                                                     ___   ____  _______            451 U.S. at 156 (setting forth complete explication of duties            of  care  for  remand,  some arguably  inapposite  to  record            facts).   No  Supreme Court  or  Second Circuit  case  either            explicitly or implicitly overrules  Fanetti.  Cf. Guilles, 12                                                _______   ___ _______            F.3d at 387 (citing  Levene only for the limited  proposition                                 ______            that  non-longshore workers  not specifically  barred  by the            1984 LHWCA amendments     like  harbor workers     may  bring            suit against their dual capacity employers under the  Jones &                                                                  _______            Laughlin  reasoning);  cf. also  supra  Section  VI (en  banc            ________               ___ ____  _____            opinion).                                          -42-                                          42            injured  longshoreman . . .  should not depend  on whether he            was  employed directly  by the  vessel  or by  an independent            contractor."   H.R. Rep. No.  92-1441 (noting that  the "same            principles should  apply in determining the  liability of the            vessel"  in both single capacity and dual capacity cases).  I            find its reasoning unpersuasive.                  First, though courts must attempt to discern legislative            intent based on the  statute as a whole, see  Thinking Machs.                                                     ___  _______________            Corp.  v. Mellon Fin. Servs.  Corp., 67 F.3d  1021, 1024 (1st            _____     _________________________            Cir. 1995), nothing  in the LHWCA  or its sparse  legislative            history  provides conclusive  support for  the "evisceration"            argument  adopted  today by  the en  banc  court.   As single            capacity employers would continue to retain all their section            905(a)  protections,  the  Fanetti approach  may  limit  some                                       _______            employers' LHWCA  immunity but  it certainly does  not render            the  LHWCA exclusivity provision  superfluous.  See Mosquera-                                                            ___ _________            Perez v. INS, 3  F.3d 553, 556 (1st Cir. 1993)  (no statutory            _____    ___            provision should be interpreted as meaningless).                 Second, Jones  & Laughlin  itself demonstrates that  the                         _________________            supposedly unlimited, pro-employer  exclusivity provision  in            section  905(a)  is far  more  flexible  than the  land-based            workers'  compensation  statutes  in  most states,  which  in            comparable  contexts would  not permit  a worker  to bring  a            negligence  action  against  the  employer as  owner  of  the            property  on  which  the   worker's  injury  occurred.    See                                                                      ___                                         -43-                                          43            generally  2A  Arthur Larson,  Workmen's  Compensation  Law              _________                      ____________________________            72.82,  at 14-234 (1983).4   Thus, it  seems reasonably clear            that Congress did not envision section 905 as an exact analog            to state workers' compensation schemes.                 Third, the cited House  Report language appears  immedi-            ately after  a discussion of Congress'  intention to abrogate            the  Court's previous decisions in Reed v. Yaka, 373 U.S. 410                                               ____    ____            (1963),  and Jackson v.  Lykes Bros. Steamship  Co., 386 U.S.                         _______     __________________________            731 (1967), see supra  note 1, which held that  dual capacity                        ___ _____            employers  were as  vulnerable  to  "unseaworthiness"  claims            under the pre-1972 LHWCA  as were non-employer vessel owners.            Congress meant to eliminate the wasteful litigation burdening            the   courts   under   the    pre-1972   LHWCA;   viz.,   the            "triangulation" in  litigation caused by the  confluence of a            longshore  worker's   strict  liability  claim   for  "unsea-            worthiness" against  the vessel owner and  the vessel owner's            claim   for  indemnification  from   a  negligent  stevedore-            employer.                   Thus, in all likelihood  the House Report's reference to            "same principles" was  simply meant as a caution  that hence-                                            ____________________            4.  Many  states do  recognize  a dual  capacity doctrine                though in circumstances inapposite here    where the employer            acts in  a non-landowner  capacity.   For  example, a  worker                       ___ _________            injured by a product  manufactured by the employer would  not            be barred from bringing a  product liability claim for breach            of the duty    owed the consuming public    to make a reason-                                              ______            ably safe product.   See,  e.g., Schump v.  Firestone Tire  &                                 ___   ____  ______     _________________            Rubber Co., 541 N.E.2d 1040, 1042-43 (Ohio 1989).              __________                                                     -44-                                          44            forth, by virtue of the 1972 amendments, both single capacity            and dual capacity cases were to be subject to the same negli-            gence liability  principles, not to  the heightened standards            of  care governing "unseaworthiness" claims    a differential            that would otherwise have afforded employees in dual capacity            cases  a decided advantage in litigation.  See, e.g., Shaw v.                             _________                 ___  ____  ____            North  Pennsylvania R.  Co., 101  U.S. 557,  565  (1879) ("No            ___________________________            statute is to be construed as altering the common law further            than its words import.").   Therefore, even without indulging            the "bifurcation" fiction adopted by the en banc court, it is            entirely   reasonable  to   point  out  that   dual  capacity            employers, in  return for assuming much  more limited section            904  workers' compensation  liability, obtained  an important            benefit  from   the  1972   amendments;  that   is,  complete            insulation  from the  much more  onerous strict  liability to            which they had  been exposed previously in actions for breach            of the warranty of seaworthiness.                 Fourth,  Congress  may  well have  envisioned  different            duties  of  care  for   single  capacity  and  dual  capacity            employers.   Unlike their single capacity  counterparts, dual            capacity vessel owners presumably  derive economic benefit as            a result of  their decision to  act in a  dual capacity.   In            fact,  this economic benefit  itself may  well counterbalance            any "heightened" duty of care attending their decision.                      A  shipowner is, of course, at liberty to                      refrain from hiring an independent steve-                                         -45-                                          45                      doring contractor.  Presumably it does so                      to save money.   However, that saving  is                      accomplished at the cost of not having an                      independent expert on  board.  As  myriad                      cases  in  this  field  demonstrate,  the                      presence of the expert independent steve-                      doring contractor furnishes the shipowner                      with significant protection, in  the form                      of insulation from liability for  its own                      acts which would  otherwise attach.   But                      the shipowner cannot save the premium and                      ___ _________ ______ ____ ___ _______ ___                      still claim the protection.                      _____ _____ ___ __________            Fanetti, 678 F.2d at 428 (emphasis added).              _______                 Indeed,  permitting  the   dual  capacity  employer   to            compartmentalize  its  actual  "knowledge"  between  its  two            artificial personae in these circumstances would undercut the            primary  LHWCA policy goal identified in Scindia.  That is to                                                     _______            say,  there would  be  no economic  incentive for  shipowner-            employers  to hire  independent stevedoring  companies, which            generally possess greater expertise in conducting longshoring            activities with  maximum levels  of worker safety.   Such  an            artificial  rule  inevitably  would  increase  the  hazardous            working   conditions  encountered  by  longshore  and  harbor            workers, and thereby undermine the spirit of the LHWCA.                 Fifth, the en banc court's bifurcation  fiction obviates            any factfinding  inquiry into the  "dual capacity" employer's            actual mode of operations.   Under either Fanetti or  Levene,                                                      _______     ______            single and  dual capacity employers are subject to the "same"            standards of care; the differences are purely circumstantial.            The Scindia paradigm recognizes that a single capacity vessel                _______            owner  is subject  to  comparatively relaxed  duties of  care                                         -46-                                          46            because it forfeits virtually all control over ensuing events            once  it turns its vessel  over to another  legal entity (and            that  entity's employees)  in  relation to  which the  vessel            owner enjoys no presumptive  right of control absent specific            contractual arrangements to the contrary.                 On  the  other hand,  as a  general  rule the  notice or            knowledge    as well as the foreseeability    attributable to            a  dual capacity employer  will be  greater simply  because a            vessel owner  which hires its own longshore or harbor workers            does not in fact "turn over" its vessel to a separate entity.            Rather, the dual  capacity employer remains in control     at            least to  some extent (both  in time and space)     and often            remains  in  total  control  of  the  entire  vessel  and its            appurtenances throughout the relevant time period.  Thus, the            fuller  range   of  knowledge  and   foreseeability  normally            accompanying   constant  and   total  control   represents  a            compelling reason  for broader accountability on  the part of            the  dual  capacity employer,  consistent  with general  tort            principles, see, e.g., Illinois  Constructors Corp. v.  Logan                        ___  ____  ____________________________     _____            Transp.,  Inc., 715 F. Supp.  872, 882 n.22  (N.D. Ill. 1989)            ______________            (agent's  knowledge  is   imputable  to  principal,  exposing            principal to  direct liability  in tort); People  v. American                                                      ______     ________            Medical Ctrs. of  Michigan, Ltd., 324 N.W.2d  782, 783 (Mich.            ________________________________            Ct. App.  1981) (same), cert.  denied, 464 U.S.  1009 (1983);                                    _____  ______                                         -47-                                          47            Allen v. Prudential Property  & Cas. Ins. Co., 839  P.2d 798,            _____    ____________________________________            806 (Utah 1992) (same).                  Even a single capacity  employer owner must shoulder the            ongoing duty  to intervene as necessary  to correct hazardous            conditions in  any part  of the  vessel remaining  within its            control,  as well as when  it acquires actual  knowledge of a            developing hazard posed by  the vessel's appurtenances (e.g.,                                                                    ____            an  open deck hatch or  a leaking powerpack),  and knows that            the independent  stevedore's failure to remedy  the hazard is            plainly improvident.   See Keller,  38 F.3d at  32; cf.  also                                   ___ ______                   ___  ____            Melanson v.  Caribou Reefers,  Ltd., 667 F.2d  213, 214  (1st            ________     ______________________            Cir.  1981) (noting  that  Scindia's "obviously  improvident"                                       _______            standard of care generally  pertains only to hazards develop-            ing  in  vessel's  gear, rather  than  nonappurtenances  like                               ____            cargo).  By the  opposite token, however, what can  it matter            whether a dual  capacity employer knows,  as it surely  does,            that its decision qua  independent stevedore not to eliminate                              ___            a  known hazard  is or  is not  improvident?    After  all, a            vessel  can  exercise  control, and  acquire  knowledge, only                                                                     ____            through its  owner and  crew, 33 U.S.C.    902(21)  ("vessel"            includes "agents" and "crew members"), and in single capacity            cases  the control  exercised and  the knowledge  acquired by            these agents normally must be imputed to the vessel.5                                              ____________________            5.  Indeed,  the following  language  from  the House  Report            severely  undercuts the statutory  interpretation proposed by            the en banc court:                                           -48-                                          48            The  apology  for the  dual  capacity fiction  might  be more            compelling were  there  some reality-based  indication as  to            when the  markedly different responsibilities  incumbent upon            dual capacity  employers become engaged.  But  this is simply            not the  case, of  course.   Even the  determinative one-time            "turn over" in a  single capacity case, which brings  about a            clearly  distinguishable  realignment of  responsibilities in            keeping with the change in control, bears no relevance in the            dual  capacity case.   In  the Jamestown  Bridge construction            project, for example, the control and use of some vessels, or            discrete  areas  of  various  vessels,  frequently alternated            between  an  employer's  vessel-operating employees  and  its                                            ____________________                      [N]othing in the  [LHWCA] is intended  to                      derogate from the vessel's responsibility                      to  take  appropriate  corrective  action                      where it knows or should have known about                      a dangerous condition.                        So, for example,  where the  longshoreman                      slips on an oil  spill on a vessel's deck                      and is injured,  the proposed  amendments                      to Section 5 would still permit an action                      against  the vessel  for negligence.   To                                           ___ __________                      recover, he must establish that:  (1) the                      vessel  put  a foreign  substance  on the                      deck,  or knew  that  it was  there,  and                             __ ____  ____  __ ___  _____                      willfully or negligently failed to remove                      it; or (2) the foreign substance had been                      on  the deck  for such  a period  of time                      that  it should have  been discovered and                      removed by the vessel in the  exercise of                      reasonable care under the circumstances.            H.R. Rep. No. 92-1441 (emphasis added).                                           -49-                                          49            construction employees.6   Clearly, then,  the dual  capacity            fiction  presumes circumstantial settings  which overlook the            actual facts in many if not most cases.                   At  best, therefore, the Castorina fiction devolves into                                          _________            a metaphysical exercise, at worst  into an inducement to dual            capacity employers to  perpetuate hazardous conditions within            their  exclusive  control.   See  Fanetti, 678  F.2d  at 428.                                         ___  _______            Furthermore, it runs directly  counter to the clear statement            of congressional  intent  in the  LHWCA legislative  history;            viz., that the "same principles [i.e.,  the Scindia duties of                            ____ __________             _______            care]  should  apply  in  determining the  liability  of  the            vessel" in both single capacity and dual capacity cases.  See                                                                      ___            H.R. Rep. No. 92-1441.                   Sixth, the mere  fact that the 92d  Congress reduced the            tort  liability  exposure  of  LHWCA   employers  in  certain                                            ____________________            6.  For example, in the companion en banc case, the employer,                                              __ ____            Traylor Brothers, Inc., was  required to use the BETTY  F and            the supply barge, alternately, as a means of transporting the            crane, its operating employees and supplies to the designated            work sites on  Narragansett Bay or as  an instrumentality for            constructing the coffer dams.  Sometimes, in fact, it appears            that  these  discrete  operating   modes  either  merged   or            alternated  with   such  frequency  that  it   could  not  be            ascertained  with any  confidence, even  on the  date  of the            accident, whether the Traylor Brothers' supply barge crew, or            its construction team "alter ego," had custody and control of            the deck  of the supply barge.   Cf. Masinter  v. Tenneco Oil                                             ___ ________     ___________            Co., Inc., 867  F.2d 892  (5th Cir. 1989)  (noting that  "the            _________            present case does  not involve a vessel  owner 'turning over'            the  control  of  a  vessel  to a  stevedore  or  independent            contractor.   Rather,  [the vessel  owner] was  contractually            bound  to conduct  the  drilling operations  and remained  in            control of the vessel to effectuate this obligation.").                                         -50-                                          50            respects does not permit the extrapolation indulged by the en            banc  court;  viz., Congress  must  have  intended to  accord            employers  the maximum  protection from  negligence liability                           _______            regardless  of  any actual  differences  in their  respective            levels  of knowledge  about,  or capacities  to control,  the            workplace.    In so  doing, the  en  banc court  gives little            recognition  to the  one presumptive  principle of  statutory            interpretation plainly  applicable here:  the  LHWCA "must be            liberally construed in conformance with its purpose, and in a            way which avoids harsh  and incongruous results."   Reed, 373                                                                ____            U.S. at 415  (emphasis added).  See Voris v.  Eikel, 346 U.S.                                            ___ _____     _____            328, 333 (1953); see also Hogar Agua y Vida en el Desierto v.                             ___ ____ ________________________________            Suarez-Medina,  36 F.3d  177, 181  (1st Cir.  1994) (remedial            _____________            statutes are to be broadly construed).7  Consistent with this            presumptive  interpretation,  unless dual  capacity employers            like A-K  demonstrate  some legislative  purpose  behind  the                                            ____________________            7.  Generally,  this  interpretive  rule  operates  to  bring            injured  maritime workers  within  the workers'  compensation            scheme in circumstances where   904 is ambiguous.  Insofar as            maritime workers  are deprived  of other common  law remedies            under   905(a),  a liberal  interpretation is not  invariably            synonymous with one  that is "favorable" in fact  to maritime            workers.  In Reed, 373 U.S. 410 (1963), and Jackson, 386 U.S.                         ____                           _______            731 (1967),  however, the Court  made clear that  this inter-            pretive rule may be used to expand a covered worker's adjunct            remedies under the LHWCA, beyond the remedy directly afforded            under    904.   The  legislative history  of  the 1972  LHWCA            amendments questions Reed, but  only regarding the  continued                                 ____            availability  of  the "unseaworthiness"  remedy  against dual            capacity  employers, see  supra note  1, leaving  undisturbed                                 ___  _____            Reed's pro-employee  interpretive presumption in  the face of            ____            other unresolvable statutory ambiguities.                                           -51-                                          51            LHWCA  that  is either  served by  Castorina or  disserved by                                               _________            Fanetti, the  benefit  of  the  doubt  would  belong  to  the            _______            plaintiff-employee.8                                           III                                         III                 Absent  controlling precedent or  conclusive evidence of            congressional intent, we must determine the particular duties            of  care to  be borne  by  the dual  capacity employer.   See                                                                      ___            Scindia,  451 U.S. at  165-66, 167  ("Section 905(b)  did not            _______            specify  the  acts  or omissions  of  the  vessel  that would            constitute  negligence . . . .   Much was left to be resolved                                            ____________________            8.  I  share  the  common-sense assessment  advanced  in  the            concurring opinion, see supra, that the dual capacity fiction                                ___ _____            is unnecessarily cumbersome,  but cannot agree that  Congress            intended,  or the Jones  & Laughlin  Court should  have held,                              _________________            that  all tort  suits  against dual  capacity employers  were            barred outright.  First, the unambiguous second sentence in              905(b) ("If such person was employed by the vessel to provide            stevedoring services,  no such  action shall be  permitted if            the injury was caused by the negligence of persons engaged in            providing stevedoring services to the vessel.") prevented any            such interpretation  by the Court.   By expressly restricting            the  permissible   scope   of  such   suits,  this   language            unmistakably  implies that there  is no such  outright bar of            negligence  suits by  employees  against their  dual capacity            employers.   See  Jones  &  Laughlin,  462  U.S.  at  530-31.                         ___  __________________            Second, the concurring opinion suggests that the 92d Congress            unintentionally  created  the present  muddle  in  1972, then            surmises that  Congress nonetheless intended  the exclusivity            provision as  a total bar to dual capacity suits.  Be that as            it  may, Congress amended the  LHWCA in 1984,  one year after            the  Jones &  Laughlin  decision, and  enacted outright  bars                 _________________            relating  only   to  particular  classes  of   dual  capacity            employers (e.g., shipbuilders).   See, e.g., Guilles, 12 F.3d                                              ___  ____  _______            at  386.   Thus,  Congress had  the  opportunity in  1984  to            overturn the Jones  & Laughlin decision in  its entirety, yet                         _________________            chose  to overrule it only in part.  Consequently, a congres-            sional  intendment  that  some dual  capacity  employers  are            subject to suit under  section 905 seems to me  to be settled            beyond serious question.                                         -52-                                          52            through the  `application of accepted principles  of tort law            and the ordinary process of litigation.'")  (quoting H.R.Rep.            No. 92-1441).   Since legal fictions  often overlook relevant            realities in order to  promote some greater systemic benefit,            in  my  view  a  finding  of  dual  capacity  should  be  the            exception, not the presumptive rule.9                  Neither the  Congress nor  the Scindia Court  could have                                                _______            foreseen   the  recent,  fast-paced   evolution  in  maritime            construction  practices  which  has exacerbated  the  instant            controversy.   Ultimately,  therefore,  the Congress  or  the            Supreme  Court  must provide  a  definitive  response to  the            present conundrum.   Until then,  however, "the rights  of an            injured  longshoreman . . .  should not depend  on whether he            was  employed directly  by the  vessel or  by an  independent            contractor."  Jones & Laughlin, 462 U.S. at 531-32.                            ________________                 It is for very good reason that the LHWCA did not invite            the courts simply to presume  an adequate segregation of  the                                            ____________________            9.  See Helvering  v. Stockholms Enskilda Bank,  293 U.S. 84,                ___ _________     ________________________            92 (1934)  (("[L]egal fictions  have an appropriate  place in            the administration of the  law when they are required  by the            demands of  convenience  and justice.");  Pettibone Corp.  v.                                                      _______________            Easley, 935  F.2d  120,  123 (7th  Cir.  1991)  ("Even  legal            ______            fictions have  their limits."); Cruz  v. Chesapeake Shipping,                                            ____     ____________________            Inc.,  932  F.2d  218,  227-28 (3d  Cir.  1991)  (noting that            ____            maritime   law  creates  legal  fictions  "for  []  practical            operational reasons"); United  States v.  Markgraf, 736  F.2d                                   ______________     ________            1179, 1187  (7th Cir. 1984) ("[F]or  more than 200   years we            have been told that the proper office of legal fictions is to            prevent,  rather  than  to create,  injustices.")  (citing  3            William Blackstone,  Commentaries on  the Laws of  England 43                                 _____________________________________            (1768)), cert. dismissed, 469 U.S. 1199 (1985).                      _____ _________                                         -53-                                          53            workplace-safety  responsibilities  incumbent  upon  maritime            employers under the  LHWCA, based merely on some  informal or                                        _____ ______ __ ____  ________ __            de  facto bifurcation  of  its vessel-owner  and construction            __  _____ ___________  __  ___ ____________  ___ ____________            operations.  Such a  presumption would allow, even encourage,            __________            dual capacity employer operations to  lapse into the types of            tacit work arrangements which  place employees at unnecessary            risk;  for example,  where  few workers,  if any,  understand            which  of  their  dual  capacity  employer's  alter  egos  is            ultimately  responsible,  through   its  own  employees,  for                                                ___            monitoring, reporting and/or remedying developing hazards.                  At most, therefore,  bifurcation should be  available as            an  affirmative  defense,  as  to  which  the  putative  dual            capacity employer  bears the burden of proof.   Scindia noted                                                            _______            that the  vessel owner may  surrender and entrust  a discrete            work area  to a single  capacity employer because  the latter                            ______  ________            presumptively possesses not only the hands-on  opportunity to            monitor vessel  workplace conditions, but  also the  required            expertise in  supervising workplace  safety.  See  Keller, 38                                                          ___  ______            F.3d at  29-30.   On the  other hand,  since a dual  capacity                                                           ____  ________            employer may or may not actually consign its workplace safety            responsibilities to its "construction division," its bifurca-            tion defense should not be allowed if, for instance, the dual            capacity employer  withheld  such responsibilities  from  its            construction division  ab initio, or  delegated them  without                                   __ ______            the clarity and authority reasonably required to enable their                                         -54-                                          54            reliable discharge.  Cf.  id. at 32 ("a  post-'turnover' duty                                 ___  ___            may arise  if the  vessel owner was  obligated, by  contract,            statute or custom, to  monitor stevedoring operations for the            purpose of detecting and  remedying unsafe conditions").  For            example, the slipshod arrangements  in place in the companion            cases now before the en banc  court were of a type that could            do  nothing to  encourage, let  alone develop,  the expertise            necessary to enable a dual  capacity employer's "construction            division"  reliably  to  discharge its  delegated  workplace-            safety responsibilities along the lines touted in Scindia.                                                                _______                 Consequently, in my view  the first step in establishing            the  actual  bifurcation  needed to  sustain  a dual-capacity            employer's  affirmative  defense  would  be  to  demonstrate,            either through an express delegation of responsibility, or by            way of an implied delegation based, for example,  on evidence            that   the  dual  capacity  employer's  on-site  construction            division supervisors customarily made workplace  safety deci-            sions  of a  type  and magnitude  adequate  to indicate  that            reasonably reliable prophylactic measures would be undertaken            to prevent workplace  mishaps of the sort experienced  by the            plaintiff-employee.                   Secondly,  once a  dual capacity  employer has  made the            prima facie showing that primary responsibility for workplace            safety  had been  adequately  delegated to  its "construction            division," the Scindia  rationale would contemplate  that the                           _______                                         -55-                                          55            injury sustained by the plaintiff-employee have occurred in a            workplace area  not under  the "active control"  of the  dual            capacity employer's  "vessel division" (or  its vessel  crew)            during  any appreciable pre-injury period after the hazardous            condition  first developed.   See  Scindia, 451  U.S. at  167                                          ___  _______            (noting  that vessel may be liable  for its negligent conduct            "in areas . . . under the active control of the vessel during            the  stevedoring  operations");  Fanetti,  678  F.2d  at  429                                             _______            (noting that the 1972 LHWCA amendments "neither expressly nor            implicitly purport[]  to overrule or  modify the  traditional            rule  that the longshoreman  may recover the  total amount of            his damages from the  vessel if the latter's negligence  is a            contributing  cause of  his  injury, even  if the  stevedore,            whose limited  liability is  fixed by  statute, is  partly to            blame")    (quoting    Edmonds    v.    Compagnie    Generale                                   _______          _____________________            Transatlantique, 443 U.S. 256, 264 (1979)).              _______________                 The rationale  for such a  requirement seems  unimpeach-            able:  an employer may not  use the dual  capacity fiction to            circumvent    LHWCA    tort    liability   by    artificially            compartmentalizing  its   actual  knowledge.    Id.   at  430                                      ______  _________     ___            ("[R]equiring trial judges to  give juries instructions about            the shipowner's right to rely upon an expert contractor  who,            in  fact, was  not  there .  .  .  is schizophrenic  and  the            predictable effect upon the jury one of bafflement.").  Since            dual capacity employers that utilize vessels to perform their                                         -56-                                          56            maritime construction  activities may never engage  in a one-            time  turnover of any discrete  area of the  vessel (as would            the  single capacity  vessel  owner in  the more  traditional            stevedoring  context), a rational factfinder reasonably could            conclude that  the area within which  the hazardous condition            developed  had been  jointly or  interchangeably used  by the            dual capacity employer's vessel division and its construction            division employees to such an  extent that the dual  capacity            employer had never surrendered "active control" of the injury            site  to its construction "division."  Thus, were there to be            a remand in this  case, the record might enable  a reasonable            finding   that  agents   of  A-K's   "construction  division"            exclusively and  continuously controlled  the barge  from the            time the hazardous condition first developed until a few days            later when Morehead fell into the open hatch.                   Once   a  dual  capacity   employer  satisfies  the  two            aforementioned  components  in  its  burden  of  proof,  tort            liability  could  not  be  imposed  absent  showings  by  the            plaintiff-employee that  the employer had acquired (i) actual            knowledge of  the  developing hazard  in  an area  no  longer            within the  employer's "active control" and  (ii) notice that            the failure of its construction division to remedy the hazard            was "obviously  improvident."   Scindia, 451 U.S.  at 174-75.                                            _______            Thus, the dual capacity employer would remain responsible for            monitoring all  areas of  the vessel for  developing hazards,                                         -57-                                          57            even  though  it is  allowed  to rely  upon  its construction            division,  in the  first instance,  to remedy  hazards within            areas  under   the  "active  control"   of  its  construction            division.                   Actual knowledge of a  developing hazard normally  would            be  imputed to  a  corporate dual  capacity  employer if  its            agents  or   employees  acquired  actual  knowledge   of  the            developing   hazard.    Under   the  "obviously  improvident"            standard,  liability  also  could  be  imputed  to  the  dual            capacity  employer  based on  extrinsic  evidence  as to  the            obviousness of the  developing hazard and the length  of time            it remained unremedied.                   Although the "obviously  improvident" standard  imported            from  Scindia entails a lesser duty of care than the "reason-                  _______            able care" required for actionable negligence, it nonetheless            serves  to  diminish  the   grave  risk  that  virtually  any            perfunctory  designation  of   employees  as   "vessel-owner"            workers may allow a  dual capacity employer to shield  itself            from  all tort liability.  Thus, on  remand the record in the            present  case might enable a finding that the decision not to            close  the open  hatch  for a  few  days was  not  "obviously            improvident"  even assuming  responsibility for  the decision            were  to be imputed  to A-K.   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                                         -58-                                          58            fix  defective   winch  for  two  days   had  been  obviously            improvident, and remanding for further factual findings).  In            both cases  before the en  banc court, however,  the district                                   __  ____            court  decisions  were  made  in reliance  on  the  Castorina                                                                _________            standard for defining the duties  of care incumbent upon dual            capacity employers.   Since the  ultimate findings     as  to            whether  breaches of the applicable  duty of care occurred               necessarily  were  dependent  upon  how   those  duties  were            defined, I  would remand the A-K case for further proceedings            and/or specific factual findings on the defendant  employer's            affirmative defense of bifurcation.                                         -59-                                          59
