
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1136                                 STEVE V. B. KELLER,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                                                                      ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Christopher   Cole,  with  whom   Michael  J.  Donahue,  Donahue,             __________________                ____________________   ________        McCaffrey,  Tucker & Ciandella, David  S. Brown, and Sheehan, Phinney,        ______________________________  _______________      _________________        Bass & Green, were on brief for appellant.        ____________             Gretchen Leah  Witt, Assistant United States  Attorney, with whom             ___________________        Paul M. Gagnon, United States Attorney, was on brief for appellee.        ______________                                                                                      ____________________                                   October 19, 1994                                                                                      ____________________                    CYR,  Circuit Judge.    Plaintiff Steven  V. B.  Keller                    CYR,  Circuit Judge.                          _____________          appeals  from a  belated  judgment dismissing  his Longshore  and          Harbor  Workers Compensation Act suit, see  33 U.S.C.    901-950,                                                 ___            905(b)  (1993) (LHWCA),  to recover  damages for  injuries sus-          tained in a  fall on board a maritime vessel  owned by defendant-          appellee United States of  America.  As appellant has  not demon-          strated    nor  careful scrutiny disclosed     that the  unprece-          dented decision-making  delay in this case  rendered the district          court's findings unreliable, we affirm the judgment.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In 1978,  the United  States Navy converted  the U.S.S.          ARTHUR M.  HUDDELL,  a World  War II  Liberty Ship,  into a  non-          motorized  barge  for  storing and  transporting  maritime  cable          purchased  by the  Navy  from Simplex  Wire and  Cable  Co.   The          retrofitted HUDDELL was towed to Simplex's facility at Newington,          New Hampshire, for cable  loading in May 1979, where  it remained          moored for two years.                      The cargo hold had been  adapted to house several round          tanks, recessed sixteen feet into the 'tween deck.  Simplex hired          temporary  employees    known as cable loaders    to descend into          these tanks from  the 'tween deck for the  purpose of winding the          incoming "wet" cable in  concentric layers onto a spool.   During          the HUDDELL's  retrofitting,  the Navy  installed a  nonremovable          metal barrier around Tank 4 to prevent workers on the 'tween deck                                          2                                          2          from  falling into the tank.   The barrier  included two uninter-          rupted safety railings  located at  the top of  an access  ladder          attached to the interior wall of the tank to permit access to and          from the tank floor.   In order to exit the tank,  a cable loader          would climb  to the top rungs of the ladder, at which point three          options  were available for getting from the tank onto the 'tween          deck floor:  (1) holding onto a "grab bar," which was attached to          the 'tween deck  floor and  located six inches  from the  outside          edge of the  tank, then  crawling forward and  passing under  the                                                                 _____          lower railing and between  the vertical stanchions supporting the          two railings;  (2) stepping  in a  crouched position  between the                                                                _______          lower and upper railings of the barrier; or (3) climbing over the                                                                   ____          top railing located approximately five feet above the 'tween deck          floor.                    At  the time Simplex hired Keller as a cable loader, he          was  a  nonmatriculating  sophomore  at  the  University  of  New          Hampshire.   On the night of  November 4, 1979, Keller  went to a          bar, where he and his  friends drank approximately 120-160 ounces          (or  two six-packs)  of beer  between 10:00  p.m. and  11:20 p.m.          Keller reported for work at about 11:30 p.m., and was assigned to          Tank 4 for the first time.  He and several coworkers climbed down          the ladder from  the 'tween  deck into Tank  4 without  incident,          where they loaded cable until 2:00 a.m.                      When it came time  for a work break, Keller  climbed to          the top of the ladder, and, according to coworker Rhonda Rossley,          grabbed  the lower safety railing  with his left  hand and placed                                                      ____                                          3                                          3          his left foot  on one of the two top rungs  of the ladder.  Then,              ____          as he began  to raise  his right leg,  he fell backward,  neither          attempting  to regain his purchase nor  crying out, and plummeted          to the tank floor sixteen feet below, landing on his  head.  When          a Simplex foreman administered first aid, he detected the odor of          alcohol.  A blood-alcohol test taken at 3:00 a.m., some three and          one-half hours after Keller had reported for work, revealed a .14          blood-alcohol level, well above the .10 prima facie blood-alcohol          level for  demonstrating that a  motor vehicle operator  is under          the  influence.   See  N.H.  Rev.  Stat. Ann.    262.A-63  (1963)                            ___          (amended  1994, lowering limit to  .08).  Since  the fall, Keller          has remained amnesiac as to all events surrounding the accident.                     Following  a seven-day  bench trial on  Keller's claims          against  the United  States for  negligently  installing "unsafe"          lighting and railings and  an "unsafe" ladder in Tank  4, and for          failing to warn Simplex  workers of the potential danger,  see 33                                                                     ___          U.S.C.    905(b), the district court  ultimately awarded judgment          to the United States.  See Keller v. United States, No. 81-549-SD                                 ___ ______    _____________          (D.N.H. Dec. 30, 1993).1                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Three principal  issues must be addressed.   First, did                                        ____________________               1Among  other things,  Keller  alleged that  (1) the  ladder          rungs were wet, slippery,  worn, and irregularly spaced;  (2) the          metal railings  protruded so as to make  it likely that a climber          would  strike his head; and  (3) no warning  of these protrusions          was posted on the ladder.                                          4                                          4          the eight-year lapse between  the bench trial and entry  of final          judgment  deprive  the  trial  court findings  of  the  customary          deference on appeal, or violate Keller's constitutional rights to          access to the courts  and due process, see generally  U.S. Const.                                                 ___ _________          amends.  I, V  ?   Second, did  the district  court make  clearly          erroneous factual  findings, or  fail to make  required findings,          see Fed.  R. Civ. P. 52(a),  regarding the alleged  breach of the          ___          vessel  owner's "turnover" duties of  care?  Third,  did the dis-          trict  court  misdefine a  vessel  owner's  "continuing" duty  to          inspect  or  supervise cargo  loading  operations  for developing          hazards?            A.   The Decision-making Delay          A.   The Decision-making Delay               _________________________                    First, Keller  claims that an  unprecedented eight-year          delay between trial and  the entry of judgment, coupled  with the          trial  judge's failure  to refresh  his recollection  through re-          course to a complete trial transcript prior to making findings of          fact,  resulted in  a violation  of his  constitutional  right to          "access  to the  courts"  and to  due  process, see  U.S.  Const.                                                          ___          amends. I, V; Ad  Hoc Comm. on Judicial Admin.  v. Massachusetts,                        ________________________________     _____________          488 F.2d 1241, 1244  (1st Cir. 1973) (noting that  pretrial delay                                                             ________          might  violate  constitutional  rights  if a  civil  litigant  is          "denied  for too long his day  in court"), cert. denied, 416 U.S.                                                     ____  ______          986 (1974),  or in  a  violation which  warrants withholding  the          customary appellate deference accorded trial court findings.  Cf.                                                                        ___          Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 787 (1st Cir. 1990)          __________    ________________          (excusing two-year delay); Fernberg  v. T.F. Boyle Transp., Inc.,                                     ________     ________________________                                          5                                          5          889  F.2d 1205, 1209 (1st  Cir. 1989) (excusing  two and one-half          year delay).   Keller attributes the purported  generality in the          district court findings, see infra Section II.B, to this extended                                   ___ _____          decision-making delay,  and  implicitly relies  on  a  conclusive          presumption that the court  was unable to make more  complete and          detailed findings as it  could not recall the evidence  presented          at trial almost eight years earlier.                     Keller  concedes that  neither Chamberlin  nor Fernberg                                                   __________      ________          concluded that prolonged decision-making  delay, per se, requires                                                           ___ __          vacatur.  Nor  has he cited authority for a per se rule fixing an                                                      ___ __          outer limit on decision-making delay.  Cf. Ad Hoc Comm., 488 F.2d                                                 ___ ____________          at 1244  (rejecting per se  rule under  Federal Constitution  for                              ___ __          bounding decision-making  delay in state court  civil cases); cf.                                                                        ___          also,  Los Angeles County  Bar Ass'n v.  March Fong  Eu, 979 F.2d          ____   _____________________________     ______________          697,  705-06 (9th Cir. 1992) (conducting ad hoc inquiry to deter-                                                   __ ___          mine  whether  pretrial delay  "exceed[ed]  constitutional bound-          aries").                    There are sound reasons for abjuring a per se rule even                                                           ___ __          in  cases involving plainly excessive delay.  In the first place,          ad hoc  appellate scrutiny  is indispensable  to the  core deter-          __ ___          mination whether delay rendered the decision unreliable.  Second-          ly, it is  highly doubtful that  direct appellate review  affords          "an effective means of  enforcing district court timeliness." See                                                                        ___          Phonetele, Inc. v. American  Tel. & Tel. Co.,  889 F.2d 224,  232          _______________    _________________________          (9th Cir.  1989) (delay approximating four  years), cert. denied,                                                              ____  ______          112  S. Ct. 1283 (1992).  Thirdly, remands for reconsideration or                                          6                                          6          retrial  yield yet  further delays,  exacerbating the  burdens on          litigants.   For these reasons, and  notwithstanding our parallel          supervisory responsibility, see, e.g., 28 U.S.C.   1651 (mandamus                                      ___  ____          jurisdiction); Petition of  Henneman, 137 F.2d 627, 630 (1st Cir.                         _____________________          1943), we consider it  critically important that appellate atten-          tion  remain  focused  on  ensuring that  trial  court  findings,          despite  inordinate  decision-making  delay,  not  be  squandered          unless their reliability  has been undermined.  We  therefore opt          for careful de novo scrutiny of  the entire record with a view to                      __ ____          whether the  prolonged delay in reaching a  decision rendered the          trial  court's findings  of fact  unreliable to  the degree  that          vacation  of its  judgment  is warranted  despite the  admittedly          severe impediments  to reliable  fact-finding in  the event of  a          remand  for new trial.   Cf. Barker  v. Wingo, 407  U.S. 514, 532                                   ___ ______     _____          (1972) (long pretrial delays threaten to impair criminal defense,          lest witnesses die, disappear,  or suffer memory loss  or distor-          tion).                    Notwithstanding the eight-year  interval between  trial          and judgment, for  which we  have been unable  to glean  adequate          explanation,  neither Keller  nor the  record on  appeal suggests          that  the  district court  did  not  perform its  decision-making          responsibility  with  care.    As Keller's  several  requests  to          expedite the  decisionmaking  process acknowledge,  the  district          court was in no sense indifferent to its responsibility to render          a decision but encountered  extraordinary docket pressures at the          same  time it  was required  to give  precedence to  its criminal                                          7                                          7          caseload.  See Speedy Trial Act, 18 U.S.C.   3161 (1993).                       ___                    Nor would  we well serve  the interests of  justice, or          the integrity of the decision-making process, were we  to presume          that  the absence  of a  complete trial  transcript  rendered the          district  court  incapable  of  determining  matters  relating to          witness demeanor and credibility,  or to recollect or reconstruct          trial testimony, through other reliable means (viz., trial notes,                                                         ___          voluminous  trial exhibits).  See Keller, No. 81-549-SD, slip op.                                        ___ ______          at 16 ("The  court in the  course of rendering  its decision  has          reviewed all of the exhibits . . . .").  After all, the responsi-          bility incumbent on  an appellant to substantiate  a challenge to          the  sufficiency of trial court  findings is not  met merely with          conclusory  allegations that  the trier  of fact  could  not have          recalled or  reconstructed the evidence without  a complete trial          transcript.  Moreover, this case does not require us to speculate          as  to the  reliability of  the trial  judge's findings,  since a          complete trial transcript is available for the purpose.  Thus, as          regards  the claim  that  the trial  judge's findings  themselves          evince prejudice from the extended decision-making delay, we test          Keller's  thesis as in any  other case, by  inquiring whether the          findings were  infected  with  "clear  error" based  on  our  own          painstaking  scrutiny of  the  entire trial  record, including  a          complete  trial transcript.   See  Interstate Commerce  Comm'n v.                                        ___  ___________________________          Holmes Transp., Inc., 983 F.2d 1122, 1129 (1st Cir. 1993) (noting          ____________________          that  appellate  court must  defer  to  trial court  fact-finding          unless,  after  reviewing entire  record,  it  is  left with  the                                          8                                          8          "definite  and firm  conviction that a  mistake has  been commit-          ted").                     B.   The Merits          B.   The Merits               __________                    The district  court made seven findings  central to the          merits-related challenges advanced on appeal:                (1)  Keller was a "longshore worker"  to whom defendant                    owed a  duty of "ordinary care,"  under LHWCA sec-                    tion 905(b),2  to provide a vessel  in such condi-                    tion that  "an  expert and  experienced  stevedore                    [would]  be able  to  exercise reasonable  care to                    carry  on  its  cargo operations  with  reasonable                    safety," and a duty to  warn the stevedore of  any                    latent safety defects on the vessel not reasonably                    discoverable by an "expert and experienced" steve-                    dore, Keller,  No.  81-549-SD, slip  op.  at  9-10                          ______                    (quoting Scindia  Steam Navigation  Co. v.  de los                             ______________________________     ______                    Santos, 451 U.S. 156, 166-67 (1981));                    ______                          (2)  Defendant's expert witness, Jan Bijhouwer, relying                    on "applicable" maritime  safety standards in for-                    mulating his  opinion  that the  HUDDELL's  ladder                    design was "safe,"  proved "more persuasive"  than                    plaintiff's competing expert, id. at 13;                                                   ___               (3)  No  eyewitness observed the precipitating cause of                    the  fall (e.g., whether Keller hit  his head on a                               ____                    safety rail), id. at 11-12;                                  ___                                        ____________________               2Section 905(b) provides in pertinent part:                    In the  event of  injury to a  person covered                    under this Act caused  by the negligence of a                    vessel,  then such person . .  . may bring an                    action against such vessel as a third party .                    . . , and the employer shall not be liable to                    the vessel  for such damages  directly or in-                    directly and any agreements or  warranties to                    the contrary shall be void. . . . The liabil-                    ity of the vessel under this subsection shall                    not be  based upon the warranty of seaworthi-                    ness  or a  breach  thereof at  the time  the                    injury occurred.          33 U.S.C.   905(b).                                          9                                          9               (4)  Even  if the  design of  the ladder  deviated from                    "applicable" maritime safety standards  in certain                    respects,  there  was  insufficient evidence  that                    these deviations caused  Keller's fall.   No other                                     ______                    accidents  occurred on  this  ladder, despite  the                    fact that  no less than twelve  persons climbed up                    or  down the  ladder  under  identical  conditions                    immediately prior to  and after Keller's accident,                    ___________                    id. at 13;                    ___               (5)  Keller's blood alcohol level  of .14, see supra at                                                          ___ _____                    p.  4,  might have  been  a  "significant [causal]                    factor"  in the  accident, Keller,  No. 81-549-SD,                                               ______                    slip op. at 15;                (6)  If  any design  deviation constituted  a potential                    "hazard," such  hazard was obvious (i.e.,  not la-                                                        ____                    tent), and could be "anticipate[d]" by a stevedore                    "if reasonably competent in the performance of his                    work," id. at 13-14; and                           ___                          (7)  Even if custom had required that defendant place a                    representative aboard the HUDDELL to monitor cargo                    loading, "a custom-generated duty to supervise and                    inspect does not transfer to the ship owner a duty                    to eradicate dangers reasonably known  to and man-                    aged by the stevedore," id. at 14.                                            ___               1.   The Vessel Owner's "Turnover" Duties of Care               1.   The Vessel Owner's "Turnover" Duties of Care                    ____________________________________________                    a.   Applicable Law                    a.   Applicable Law                         ______________                    The definition of a vessel owner's duties of care under          LHWCA   905(b) is a matter  of law for the district court  in the          first instance, see  Elberg v.  Mobil Oil Corp.,  967 F.2d  1146,                          ___  ______     _______________          1149  (7th Cir. 1992); Ludwig v. Pan Ocean Shipping Co., 941 F.2d                                 ______    ______________________          849, 850 (9th Cir. 1991), subject to de novo review, see Williams                                               __ ____         ___ ________          v. Poulos, 11 F.3d 271, 278  (1st Cir. 1993).  Keller claims that             ______          by failing  to distinguish  between  "turnover" and  "continuing"          duties,  the district  court  misconstrued the  standard of  care          incumbent upon a vessel owner under LHWCA   905(b).                     As it pertains  to Keller and  Simplex, in its  current                                          10                                          10          incarnation the LHWCA is a strict liability statute.  A longshore          or  harbor  worker such  as  Keller,  who incurs  a  work-related          injury, may recover disability  and medical compensation from the          stevedore-employer (viz., Simplex) even though the  stevedore was                              ____          not at fault.   Conversely,  an award of  compensation under  the          LHWCA, such  as Keller recovered  from Simplex, is  the longshore          worker's exclusive remedy against the stevedore-employer.  See 33                   _________                                         ___          U.S.C.     904, 905(a); Williams v.  Jones, 11 F.3d 247,  250 n.1                                  ________     _____          (1st Cir. 1993).                    Until 1972,  an injured longshore worker  could sue the          vessel  owner on  two distinct  legal theories:   negligence  and          ______  _____          breach  of the  warranty  of "seaworthiness."   "Unseaworthiness"          could  be  established more  easily  than  negligence, 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.   See                                                                        ___          Seas  Shipping Co. v. Sieracki, 328  U.S. 85, 94 (1946); Ellen M.          __________________    ________          Flynn & Dale S. Cooper,  1A Benedict on Admiralty   91, at 5-2 to                                      _____________________          5-4 (7th ed. 1993) [hereinafter:  Benedict on Admiralty].  Vessel                                            _____________________          owners thus  became virtual  insurers of  the on-board  safety of          longshore workers.  Although the only legal recourse available to          the  nonnegligent  vessel  owner  was  an  indemnification  claim          against the stevedore-employer, even  that remedy was unavailable          unless  the hazardous  condition or  appurtenance was due  to the          stevedore's negligence.            In  1972,  the LHWCA  remedial          scheme underwent dramatic adjustment.  Congress greatly increased                                          11                                          11          the amount of compensation recoverable from the stevedore-employ-          er, repudiated  the warranty  of "seaworthiness"  as a  basis for          third-party  actions  against  the  vessel  owner,  required  the          injured longshore worker to  prove negligence on the part  of the          vessel owner, and precluded a negligent vessel owner from obtain-          ing indemnification from the stevedore-employer.  See 33 U.S.C.                                                              ___          905(b); supra note 2.  These changes were 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)          _______     _____________________          (emphasis added).   Consequently, at the present  time the duties          of care incumbent upon a vessel owner fall into two broad catego-          ries:   (i) so-called "turnover" duties     those which are to be          discharged before the owner consigns the vessel  to the stevedore                     ______          for cargo  loading operations    and  (ii) so-called "continuing"          duties, such  as inspection,  supervision or  intervention, which          may  persist after the stevedore commences cargo operations.  See                       _____                                            ___          Scindia, 451 U.S. at 166-67, 172-76.  There are two distinct sub-          _______          categories of "turnover" duty,  depending on whether an unreason-          ably hazardous condition on board the vessel is patent or latent.                    (i)  The Vessel Owner's "Duty of Safe Condition"                    (i)  The Vessel Owner's "Duty of Safe Condition"                         __________________________________________                    First, the  vessel owner's "duty of  safe condition" is          met if the  condition of the vessel when entrusted  to the steve-          dore poses  no reasonably foreseeable  risk to  any worker,  even                      __ __________ ___________          assuming a complete failure on the part of the stevedore-employer                                          12                                          12          to monitor the  vessel workplace for safety.   On the other hand,          because longshoring  is particularly dangerous, in  many respects          inherently so, see Johnson  v. A/S Ivarans Rederi, 613  F.2d 334,                         ___ _______     __________________          339 n.5 (1st  Cir. 1980), few  on-board appurtenances would  ever          satisfy such  an exacting threshold.   Accordingly, the "foresee-          ability" standard to which a vessel owner is held under its "duty          of  safe condition" has been  relaxed:  "ordinary  care under the          circumstances" now governs  the owner's discharge of its  duty to          turn  the vessel  over  "in such  condition  that an  expert  and                                                                ______  ___          experienced  stevedoring  contractor, mindful  of the  dangers he          ___________  ___________  __________          should  expect to  encounter,  arising from  the  hazards of  the                  ______ __  _________          ship's  service or  otherwise, will  be able  by the  exercise of          ordinary care"  to  conduct  cargo  operations  "with  reasonable          safety to persons and property."   See Federal Marine  Terminals,                                             ___ __________________________          Inc.  v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18 (1969)          ____     _____________________          (emphasis added) (citation omitted).                      Unlike  the  vessel owner,  however,  the  stevedore is          subject to detailed  legislative and administrative prescriptions          for  affording its  workers a  "safe" workplace.   See,  e.g., 33                                                             ___   ____          U.S.C.    941  (1993); 29  C.F.R.     1918.1-1918.106,    1918.25          (1993) (implementing regulations for  "ladders"); see also  Scin-                                                            ___ ____  _____          dia, 451 U.S. at 170.  Thus, a vessel owner "reasonably" may rely          ___          on the  stevedore-employer's supervision of its  own employees in          their interaction with and  avoidance of "obvious" or "anticipat-          ed" hazards foreseeably associated  with stevedoring on board the          owner's vessel.  See,  e.g., Polizzi v. M/V Zephros  II Monrovia,                           ___   ____  _______    ________________________                                          13                                          13          860  F.2d 147, 149 (5th  Cir. 1988); Jupitz  v. National Shipping                                               ______     _________________          Co., 730 F. Supp.  1358, 1362 (D. Md.  1990) (noting that  vessel          ___          owner's duty is "to turn over the cargo area in a reasonably safe                                                            __________          condition; . . . not to turn over the area completely free of all          hazards")  (emphasis added).    Conversely, under  current law  a          vessel owner may be  held liable, even for "obvious"  or "antici-          pated" hazards, upon  a showing that  the owner effectively  dis-                                                                       ____          abled the stevedore-employer or  the longshore worker from taking          _____          ameliorative  measures to avoid the  hazard.  See  Teply v. Mobil                                                        ___  _____    _____          Oil  Corp., 859  F.2d 375,  378 (5th  Cir. 1988); Theriot  v. Bay          __________                                        _______     ___          Drilling Corp., 783 F.2d 527, 536 (5th Cir. 1986).           ______________                    (ii) The Vessel Owner's "Duty to Warn"                    (ii) The Vessel Owner's "Duty to Warn"                         ________________________________                    The second  sub-category of turnover duty  is the "duty          to  warn" prior to turnover,  which requires the  vessel owner to          alert the  stevedore-employer to  any latent or  concealed defect          _____          including "any hazards on the ship or  with respect to its equip-          ment" which "are  known to the vessel [owner]  or should be known                            _____                           ______ __ _____          to it in the exercise of reasonable care" and which "would likely          be encountered by the stevedore in the course of his cargo opera-          tions[,]  are  not known  by the  stevedore[,]  and would  not be                         ___ _____                                   ___          obvious to or anticipated  by him if reasonably competent  in the          _______          performance of his  work."   Scindia, 451 U.S.  at 167  (emphasis                                       _______          added).                         Although Keller concedes that the trial court correctly          quoted  verbatim from the Scindia exegesis  relating to these two                  ________          _______          turnover duties,  Keller, No.  81-549-SD, slip  op. at 10-11,  he                            ______                                          14                                          14          argues that the court focused its factual inquiry exclusively  on                                                            ___________          whether  the defendant  vessel owner  owed Keller  a "continuing"          duty of intervention.  See Brief  for Appellant at 27.  We cannot                                 ___          agree.   Though neither the  district court, nor  for that matter          the  Scindia Court, used  the term "turnover  duty," the district               _______          court focused directly on  the two issues material to  the perti-          nent inquiry:  (i) "[c]entral to the issue of legal fault in this          litigation  is whether  the [original  design  of the]  ladder at          issue  was causally  defective," in  light of  "applicable safety          standards" and  other evidence  proffered by Keller,  Keller, No.                                                                ______          81-549-SD, slip op. at 13, and (ii)  whether "the notice given by                                                            ______          the presence of any such hazard" rendered it obvious, id. at  14.                                                                ___          Thus,  the  district court  clearly  identified  and applied  the          proper duty of care.   We turn then to examine its  factual find-          ings.                          b.   Factual Findings on "Turnover" Duties               b.   Factual Findings on "Turnover" Duties                    _____________________________________                     Keller asserts  two challenges  to the district  court          finding  that  the  United  States did  not  breach  its turnover          duties.   First, he  argues that the pivotal  finding    that the          testimony of Jan Bijhouwer,  defendant's expert witness on marine          design, was  "more persuasive" than the  testimony of plaintiff's          expert      is so  conclusory that no  evidentiary basis  for the          finding can be gleaned from  the record.  See Fed. R.  Civ. P. 52                                                    ___          ("In  all actions tried upon  the facts without a  jury . . . the          court shall  find the facts  specially and  state separately  its                                       _________          conclusions of law thereon . . . .") (emphasis added).                                          15                                          15                    The  crux of our ad  hoc Rule 52(a)  inquiry is whether                                     __  ___          the  trial court  findings  are precise  and  detailed enough  to          enable  effective appellate  review.   See  Knapp Shoes,  Inc. v.                                                 ___  __________________          Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 1994).  As          ________________________          long  as  the  factual  bases essential  to  the  court's special          findings are reasonably discernible from the record, the dictates          of Rule  52(a) are met.   Id. (noting that the  "'judge need only                                    ___          make  brief, definite,  pertinent  findings .  .  . there  is  no          necessity for  over-elaboration of detail'")  (citation omitted).          Contrary to Keller's contention, the district court did not begin          and  end  its  analysis  with the  observation  that  Bijhouwer's          testimony was "more persuasive," but expressed one very important                                               _________          rationale  for so finding:  Bijhouwer was the only expert witness                                                        ____          who based his opinion on "applicable [maritime] safety standards"                                    __________          and  on the  possible  consequences any  "deviations" from  those          standards  might  have upon  worker safety.   Further,  the court          proceeded  to point  out that  Keller  had produced  no competent          evidence that the Tank 4 ladder  was defective in any way.  These          "special findings" met the Rule 52(a) requirements.                     Keller  next  argues that  the  trial court's  findings          (e.g., that  the  ladder  design  was "generally  safe,"  or  its           ____          hazardous  features,  if any,  should  have been  obvious  to the          stevedore's employees)  were based upon inherently  unreliable or          inadmissible  evidence,  or  its  refusal to  admit  or  consider          competent  evidence  entitled to  greater  weight.   Whether  the          defendant breached a duty of care is a question of fact, which we                                          16                                          16          review only for clear error.  See Fed. R. Civ. P. 52(a); Martinez                                        ___                        ________          v.  Korea  Shipping Corp.,  903 F.2d  606,  609 (9th  Cir. 1990);              _____________________          Miller v. Patton-Tully Transp.  Co., 851 F.2d 202, 205  (8th Cir.          ______    _________________________          1988).   Clear  error review  presupposes appellate  deference to          trial court findings  of fact unless we are left  with the "defi-          nite and  firm conviction  that a  mistake  has been  committed."          Holmes  Transp., Inc., 983 F.2d at 1129.  Particular deference is          _____________________          due trial  court findings  dependent on witness  credibility, see                                                                        ___          DesRosiers  v. Moran,  949 F.2d 15,  19 (1st  Cir. 1991),  to the          __________     _____          degree that error is seldom considered "clear" unless the  credi-          bility assessments  were based on testimony  which was inherently          implausible,  internally  inconsistent, or  critically impeached.          See Anderson v. City  of Bessemer City, 470 U.S. 564, 575 (1985);          ___ ________    ______________________          Rivera-Gomez v. de Castro, 900 F.2d 1, 4 (1st Cir. 1990).            ____________    _________                    Under LHWCA    905(b), the  plaintiff must prove,  by a                                                _________          preponderance  of the  evidence, both  proximate causation  and a          breach of the applicable duty of care.  See  Bjaranson v. Botelho                                                  ___  _________    _______          Shipping Corp., 873  F.2d 1204,  1208 (9th Cir.  1989); Biggs  v.          ______________                                          _____          Logicon, Inc., 663 F.2d 52, 53-54 (8th Cir. 1981).  Since action-          _____________          able negligence under the  LHWCA depends on the fluid  concept of          "reasonableness" in  the circumstances, the LHWCA provides little          substantive  guidance on  vessel-owner conduct  violative of  the          various duties of  care.  See Scindia, 451  U.S. at 165-66 ("Sec-                                    ___ _______          tion  905(b) did not specify the acts  or omissions of the vessel          that would  constitute  negligence. .  . .  Much was  left to  be          resolved through the 'application  of accepted principles of tort                                          17                                          17          law and  the ordinary  process of litigation.'")  (citation omit-          ted).   Generally  speaking,  the fact-finder  should assess  the          "reasonableness" of the vessel  owner's conduct "by balancing the          usefulness to the [vessel] of the [allegedly] dangerous condition          __________          and  the burden involved in curing it against the probability and                   ______                                   ___________          severity of the harm it poses."  Johnson, 613 F.2d at 348 (empha-          ________                         _______          sis  added); see also Miller, 851 F.2d  at 205 (same).  And, even                       ___ ____ ______          though  "proof of [the  vessel owner's] adherence  to an industry          practice  or custom  is not  dispositive on  the issue  of negli-                                       ___________          gence," Martinez,  903 F.2d at 610  (citations omitted) (emphasis                  ________          added), often the plaintiff's case  will "depend on the existence                                                    ______          of  statutes, regulations  and customs  allocating responsibility          for repairs of  defective equipment [between the owner and steve-          dore]," since these sources are probative of the risks a "reason-          ably competent" stevedore should  anticipate and manage.  See  1A                                            __________              ___          Benedict on Admiralty    94, at 5-25 (emphasis added);  see also,          _____________________                                   ___ ____          e.g., Martinez, 903  F.2d at  609 (noting, on  review of  summary          ____  ________          judgment,  that "[vessel owner] . . . submitted the affidavits of          a  licensed ship master and  a naval architect,  who claimed that          the platform is standard in  the industry and meets international          requirements").                      Keller   challenges  the  cornerstone  finding  by  the          district court:  that Bijhouwer's expert opinion was founded on a          "persuasive" appraisal of  "applicable" industry standards.   The          gist of  Bijhouwer's testimony  was that he  personally inspected          the Tank 4  ladder after Keller's fall, measured  its dimensions,                                          18                                          18          and climbed out of Tank 4 several times by pulling himself  under                                                                      _____          the lower railing with the  aid of the metal grab bar  mounted in          the 'tween deck floor.  In twenty-four years  as a marine survey-          or, approximately five  to ten percent  of the vessels  Bijhouwer          had encountered were equipped with  ladder-railing configurations          similar to Tank  4.  Bijhouwer found the Tank  4 ladder "easy" to          climb,  and  "perfectly safe."    He  consulted two  fixed-ladder          safety standards governing "shipboard  installation as opposed to          land-based installation":   the Maritime  Administration standard          (MARAD) (1965) and the American Society for Testing and Materials          standard (ASTM)  (1983).  In Bijhouwer's  opinion, both standards          confirmed that the Tank 4 ladder-railing design met  or surpassed          applicable maritime safety standards.3                       Finding no  merit in  Keller's other challenges  to the          district  court's credibility  determinations,4 we  focus on  two                                        ____________________               3Minor measurement "deviations"  between MARAD-ASTM and Tank          4 included, inter alia: the facial width of ladder rungs (slight-                      _____ ____          ly  over 14 inches; standard  14 inches); rungs  (1-1/2 inches by          1/2  inch;  standard 3/4  inch by  3/4  inch); and  toe clearance          behind  rungs (5 inches at sides, 14  3/4 inches in middle; stan-          dard minimum 5 inches).                4For  example, Bijhouwer  testified  that a  person who  was          exiting Tank 4 for  the first time might be able to do so "blind-          folded."   Keller  characterizes this  testimony as  patently in-          credible, especially in view  of other testimony that Tank  4 was          "more difficult" to exit  than the tanks on other  vessels (e.g.,                                                                      ____          the  FURMAN)  then moored  at  Simplex.   On  redirect,  however,          Bijhouwer  clarified that  the  ladder and  grab bar  combination          installed in Tank 4 was so well designed that, after one trip up,                                                         _____ ___ ____ __          a  climber  could use  it  "blindfolded."   Bijhouwer's  redirect          testimony would enable a  reasonable inference that Simplex, once                                                              _______          it  became acquainted  with  the Tank  4 configuration  following          turnover,  was in no sense disabled  from informing its employees          about  at least one safe  method of exiting  the tank.  Moreover,          the  fact that other witnesses  testified that the  Tank 4 ladder                                          19                                          19          related contentions.   First,  Keller quarrels with  the district          court ruling that ASTM was an "applicable" industry standard.  He          points  out that  the  ASTM was  promulgated several  years after          Keller's  fall,  for  the  purpose  of facilitating  inter-vessel          exchangeability of component parts, rather than promoting  safety          concerns.   And, because Bijhouwer  conceded at trial  that MARAD          required  an  unobstructed  gap in  the  Tank  4 railing,  Keller                                      ___          contests the district court ruling that MARAD was an "applicable"          industry standard and  disagrees that the Tank  4 ladder substan-          tially conformed with the MARAD design.                      These  contentions cannot  withstand scrutiny.   Keller          does not explain why  a maritime safety standard like  ASTM would          be wholly  "inapplicable" simply because it  had been promulgated             ______          after the accident.  In this context, "applicability" connotes no          statutory or  regulatory compulsion to conform  with a particular                                                 _______          standard.  See  infra note 5.   Rather, "applicability"  connotes                     ___  _____          mere relevance:  that ASTM  had some tendency to make it  more or          less likely  that the defendant  and Simplex would  have regarded                                           ___          the  ASTM norm  as a  minimum safety  standard for  the industry.          There  is  no evidence  that  general  maritime safety  standards          changed  so dramatically  between  1979 and  1983  that ASTM  was          rendered  wholly  immaterial as  an  indicator  of 1979  industry                                        ____________________          was "more"  difficult to climb did  not compel a  finding that it          was defective, since (1)  these lay witnesses testified to  their          personal experiences  only, not  to safety  design; and  (2) this          inapposite comparison (i.e., "more  difficult" as opposed to "too                                 ____          difficult") would not show  that the Tank 4 ladder  was "unsafe,"          only  that other Navy ships moored at Simplex had "safer" ladders          (i.e., exceeded applicable maritime safety standards).           ____                                          20                                          20          safety practices, see Fed. R. Evid. 401, nor that ASTM was  based                            ___          exclusively on post-1979 data.   Further, in response to Keller's          contention  that  ASTM's purpose  was  merely  to facilitate  the          interchangeability   of  component  parts,  we  note  Bijhouwer's          testimony  that  though the  maritime  standards  he relied  upon          (including  ASTM) might not be exclusively safety-oriented, there           _________  ____               ___________          were  "safety-related aspects  to all  of [these  industry] stan-                                            ___          dards."  Thus, it was not clear error to find that ASTM possessed          some probative value in  determining industry safety practices in          1979.                      Even if ASTM were deemed wholly  "inapplicable," howev-          er, it was but  one of two independent maritime  safety standards                          ___    ___ ___________          on  which Bijhouwer relied.   Keller therefore would  have had to          hobble both the ASTM and the MARAD standards in order to prevail.                 ____          ___ ___ _____          Viewed as  an enumeration  of minimum safety  recommendations for                                        _______          the  industry,  MARAD is  conspicuously  silent  on many  matters                                                   ______          Keller considered pertinent to  the defendant vessel owner's duty          of care, including  any unequivocal recommendation that  a gap be          left in  safety railings which extend  around the top of  a fixed          ladder.   Bijhouwer testified that  MARAD recommended such  a gap          (or  removable  railings)  only  as needed  to  facilitate  cargo          loading via the deck on which the railings are located.  Here, of                  ___ ___ ____ __ _____ ___ ________ ___ _______          course, the cable was not loaded into Tank 4 across the HUDDELL's                                                       ______          'tween  deck where the safety railings were located, but from the          main  deck, down  through an  upper hatch  and into  Tank 4.   He          further testified that MARAD  recommends such an "access opening"                                          21                                          21          only  in  "deck"  railings  near ladders,  citing  two  plausible          reasons that this would  not indicate that a complete  gap should                                                       ________          have  been left in  the Tank 4 railings:  (1) the MARAD provision          refers  exclusively to railings on  the periphery of  the main or          weather deck of the vessel, not  to railings on lower decks, like          the 'tween  deck; and  (2) the  undefined  term "access  opening"                                          _________          might reasonably mean any  aperture through which a  person could          exit safely, such as the 27-inch space under the lower railing on                                                 _____          Tank 4.   Bijhouwer's  testimony likewise  was bolstered  by OSHA          regulations, which presumably  impose a heightened obligation  on                                                  __________          the stevedore to  provide its employees with  a "safe" workplace.          See 33  U.S.C.   941.   Yet even  the OSHA standards do  not dis-          ___          courage the ladder configuration  found on Tank 4.  See 29 C.F.R.                                                              ___            1918.25.  Thus, Keller failed to weaken Bijhouwer's interpreta-          tion and application of MARAD.                    To  the  extent that  the  technical  aspects of  MARAD          invited expert interpretation, the district court was entitled to          rely  on Bijhouwer's testimony,  especially since Keller tendered          no persuasive counter-interpretation:                    Compliance  with the customs  and practice of                    an industry, while relevant and admissible[,]                    is not necessarily due  care.  It may, howev-                    er, be  evidence of due care  and when relied                            ________                    on by the fact  finder "his findings will not                    be lightly disregarded unless there is a par-                                                             ____                    ticularly strong showing of the unreasonable-                    _________ ______ _______                    ness of the customary practice."          1 Martin J. Norris, The Law  of Maritime Personal Injuries   9:5,                              ______________________________________          at 453  (4th ed. 1990) (quoting Cia  Maritima Del Nervon v. James                                          ________________________    _____          J. Flanagan Shipping  Corp., 308  F.2d 120, 125  (5th Cir.  1962)          ___________________________                                          22                                          22          (emphasis  added));  McGann  v. Compania  de  Navegacio  Maritima                               ______     _________________________________          Netumar, 586 F.  Supp. 1568,  1571 (D. Md.  1984) (evidence  that          _______          ladder was "typical" or "standard" is probative of vessel owner's          nonnegligent conduct).    Van Dissell,  Keller's expert  witness,          conceded that he never consulted the ASTM  standards, and neither          referenced nor analyzed MARAD before surveying the Tank 4 ladder.          We  think it clear that this effort  fell well short of the "par-                                                                       ____          ticularly  strong showing," see Cia Maritima Del Nervon, 308 F.2d          _________  ______ _______   ___ _______________________          at 125 (emphasis added), needed to demonstrate clear error in the          trial court's decision  to credit Bijhouwer's expert  recommenda-          tions relating to an "applicable" industry "standard."                      Keller concedes that van  Dissell relied on three land-                                                                      _____          based  safety  standards, or  at  least on  safety  standards not          _____          intended  for  applications  distinctively  maritime  in  nature:          Department of Defense Military  Standard Human Engineering Design          Criteria for Military Systems, Equipment and Facilities, MIL-STD-          1472  (1970);  American  National  Standards  Institute's  (ANSI)          Standard  Safety Code for Fixed  Ladders (1956 &  1974); and OSHA          Standards for Fixed  Ladders, 29  C.F.R.   1910.27  (1975).5   In          general, differentials between land-based and maritime design and                                        ____________________               5Keller did  not contend that these  OSHA standards directly                                                                   ________          applied to defendant.   Therefore, even a failure to  comply with          the OSHA standards would not  entitle Keller to claim  negligence          per se.   And  in  fact, the  OSHA  standards were  not  directly          ___ __          applicable  to defendant,  because  (1) they  do  not pertain  to          maritime  employment  of longshore  and  harbor  workers, cf.  33                                                                    ___          U.S.C.   941; 29 C.F.R.    1918.1-1918.106; and (2) they regulate          only the obligations of employers, see Martinez, 903 F.2d at 611;                                  _________  ___ ________          Bandeen v. United Carriers (Panama), Inc., 712 F.2d 1336, 1339-40          _______    ______________________________          (9th Cir. 1983) (same), and defendant was not Keller's employer.                                          23                                          23          safety codes are  necessitated by the  unique spatial and  weight          constraints on working maritime vessels.   The van Dissell bench-          marks undoubtedly set  more stringent safety specifications  than          the MARAD model,  and thus were  relatively "safer," but  Scindia                                           __________               _______          inquires  only whether  Simplex could  have anticipated  that the                                                      ___________          vessel owner would consign  a vessel with these heightened  land-          based safety  specifications.   By contrast, Bijhouwer  testified          that  shipyards commonly  consult  standards, such  as MARAD,  in                          ________  _______                      _____          designing and constructing merchant vessels, rather than the more                                                       ______ ____          generalized  military  specifications  like   MIL-STD-1472;  and,          further, that he had encountered  the Tank 4 ladder configuration          in at  least five to ten  percent of the merchant  vessels he had          surveyed.                     Second, Keller attacks, as internally  inconsistent and          inherently implausible, the Bijhouwer  testimony that the 27-inch          space  beneath the  lower safety  railing on  Tank 4  afforded an                 _______          adequate "access  opening" according to MARAD.   Bijhouwer testi-          fied on  deposition that  a minimum  vertical gap  of twenty-five          inches  beneath the  lower  railing  would  be a  "safe"  "access          opening"  for  exiting Tank  4.    At trial,  however,  Bijhouwer          conceded that the grab bar, which  was 4 1/8 inches high, was set          into the 'tween deck floor six inches from the ladder and the rim          of Tank 4.   Confronted with this configuration     indicating an          actual clearance of 22 7/8 inches    Bijhouwer nonetheless stated          that  the grab bar posed no hazardous interference.  He explained          that there  would remain  at least a  25-inch clearance  directly                                                                   ________                                          24                                          24          beneath the lower railing where it passed over the six-inch ledge          _______                                        ___ ________ _____          of the tank, and  that this clearance was needed only to accommo-          __ ___ ____          date the  height of the climber's  body as he placed  his knee up          onto  the tank  ledge.6   In  that  position, the  climber  would          attain   maximum   vertical   posture   (measured   from  stooped                   _______          head/shoulders to  knee), at which  point his body  would flatten          out  to less than twenty-five inches as he pulled himself forward                                                                    _______          and through the narrower opening between  the top of the grab bar              _______          and  the  lower railing.7      While Keller  characterizes  these          movements as  dangerously acrobatic,  it is well  recognized that          longshore  workers are  called upon  to cope  with uncomfortable,          cramped positions in the close confines of a vessel.  See,  e.g.,                                                                ___   ____          Bjaranson,  873 F.2d at 1208 ("the men, according to the testimo-          _________          ny, could have squeezed around the leg of the crane" to avoid the                         ________                                        ____________________               6Keller argues that  the method of  egress endorsed by  Bij-          houwer  was unmanageable because the climber  would have to place          his knee on a narrow  coaming that raised 7/8 inches at  the edge          of the  tank,  which  Bijhouwer conceded  would  "cut"  into  the          climber's knee.   In  fact, however,  Bijhouwer testified  that a          climber could  place his  knee "momentarily" between  the coaming                                                       _______          and the grab bar, not on top  of the coaming.  When asked if  the                            ___ __ ___  __ ___ _______          coaming  would  then "dig[]  into  your  knee," Bijhouwer  simply          responded that "[y]ou can feel the coaming."                                      ____               7Keller likewise relies on Bijhouwer's admission that at the          time he first formulated  his opinion that the ladder  design was          safe, he  had not  considered the  actual conditions (e.g.,  wet,                                                                ____          cold, artificial  lighting) in Tank  4 on the night  of the acci-          dent.   Nevertheless,  when asked  at trial,  Bijhouwer testified          that those  conditions did not alter his opinion as to the safety          of  the  ladder design.   He  explained,  for example,  that even          though  Keller was wearing heavy clothing at the time, the clear-          ance beneath the  lower safety  railing would be  adequate for  a          climber  emerging from the tank, because  clothing might catch on                   ________ ____          the railing only as a  climber was backing into the tank,  not as                                             _______ ____          he was pushing forward.                                           25                                          25          hazard) (emphasis added).   Further, Bijhouwer testified that the          lower railing served both  (i) a safety function, since  it would          protect  an exiting climber from falling  backward into the tank,          and (ii) a  utilitarian purpose, since  it would provide  Simplex          ___          with the option to spool  wire into Tank 4 above the  'tween deck                                                     _____          level.  See Johnson, 613 F.2d  at 348 (trier of fact may consider                  ___ _______          "the  usefulness to  the  [vessel] of  the [allegedly]  dangerous                __________          condition")  (emphasis added); see  also Miller, 851  F.2d at 205                                         ___  ____ ______          ("The  court  found that  the toolbox  was  a necessary  piece of                                                        _________  _____ __          equipment  for the barge and  that it was  situated reasonably to          _________          keep it out of the way of the  workers on the barge. . . .  Simi-          larly,  the court found that whatever hazard was presented by the          counterweight was  justified by  its important safety  purpose of                                               _________ ______  _______          keeping  the  toolbox  lid  from  snapping  shut  unexpectedly.")          (emphasis added).                    According to  Bijhouwer, therefore,  the Tank  4 ladder          incorporated at least one "safe" method of egress compatible with          MARAD (i.e., "under" the lower safety railing); hence, the vessel                 ____          owner had  not provided  Simplex with an  "unavoidably" hazardous          ladder.   See Teply,  859 F.2d at  378.  Thus,  even if MARAD had                    ___ _____          been the  only "applicable" industry standard  on which Bijhouwer          could rely, it afforded sufficient support for the district court          finding  that  the  defendant  vessel owner  had  discharged  its          turnover  duty of  safe  condition, on  the  ground that  Simplex          should have "anticipated" and  managed the equipment as designed,          whatever its inherent, but avoidable, risks.                                   ___ _________                                          26                                          26                    Keller further  contends that the trial  court erred in          finding that any potential  risks attending the use of the Tank 4          ladder were  "obvious."  He  relies on (i)  Bijhouwer's testimony          that it would be  "reckless" for Simplex employees to  attempt to          exit Tank 4 by passing between  the two safety railings or "over"          the top railing, and (ii) evidence that Simplex employees contin-          ued to use both these methods after turnover.  Keller argues that          this latent  design "defect"  generated the  independent turnover          duty  that the vessel owner warn Simplex or its longshore workers                                      ____          of the hidden danger.  This contention, too, is flawed.                    First,  Keller  incorrectly  assumes  that  by adopting          Bijhouwer's  testimony  that  MARAD  and  ASTM  were "applicable"          safety standards, the  trial court likewise  necessarily credited          Bijhouwer's  expert opinion (not  based on  MARAD) that  it would                                       ___          have  been reckless to utilize  the two other  methods of egress.          On the contrary, however, the court did not adopt that portion of          the Bijhouwer testimony but  went on to note instead  that Keller          had  proffered no evidence of any design defect whatsoever in the                                        ___               __________          Tank 4 ladder; for  example, that any accident had  ever occurred                                            ___          on  the  ladder when  persons other  than  Keller used  these two          alternate  methods under  substantially similar  conditions (wet,          cold,  artificial lighting).  See,  e.g., McKinnon v. Skil Corp.,                                        ___   ____  ________    __________          638 F.2d 270, 277 (1st Cir. 1981) (subject to Rule 403 balancing,          evidence of prior  accidents under similar conditions  admissible          to show design defect); cf. Martinez, 903 F.2d at 609 (at summary                                  ___ ________          judgment, vessel  owner met  burden by "offer[ing]  evidence that                                          27                                          27          during the vessel's seven years of operation no longshoreman ever          fell into one of the ladder openings on the lashing platforms and          no complaints were lodged concerning the platforms"); McGann, 586                                                                ______          F. Supp. at  1571 ("[N]o other accidents or complaints concerning          this type  of ladder have been reported . . . ."); accord Pittman                                                             ______ _______          v. Littlefield, 438  F.2d 659,  662 (1st Cir.  1971) (absence  of             ___________          other  accidents under  substantially similar  conditions  may be          probative of "safe" condition) (applying New Hampshire law).                    Second,  even if  the  district court  had agreed  with          Bijhouwer's assessment  of the risks attending  the two alternate          methods of  egress, Bijhouwer never intimated  that those methods          posed  hazards not readily foreseeable by  Simplex.  Scindia, 451                                                               _______          U.S. at 167  (noting that  duty to warn  exists only if  "defect"          "would not be obvious to or anticipated by [stevedore] if reason-          ably competent in  the performance  of his work").   The  alleged          design  defect  (two  fixed railings)  was  in  no sense  latent.          Unlike a hairline fracture in the rung of a  ladder, for example,          which might  render the ladder configuration  not reasonably safe          for any unwarned usage, the juxtaposition of the two railings and              ___          the absence of posted instructions put Simplex on notice that its          employees,  unless instructed  otherwise, might  attempt  to exit          Tank  4 in any of three ways.   If Simplex had deemed Bijhouwer's          "under"  method the only "safe" one, it could have instructed its          employees not to use the two alternate methods.  Or if it consid-          ered  all  three  methods "unsafe,"  it  could  have removed  the          railings between the stanchions at the top of the ladder.                                            28                                          28                    Relying on the  fact that he was never  in Tank 4 prior          to  the  night of  the  accident,  Keller wrongly  presumes  that          obviousness and latency are measured by what a relatively inexpe-          rienced  longshore worker  might observe.   Instead,  the Scindia                             ______                                 _______          standard turns primarily on what an "experienced" stevedore, like          Simplex, reasonably would  be expected  to notice.   By the  same          _______          token, if the  district court correctly  found that even  Simplex          longshore workers  reasonably could be expected  to recognize any                    _______          such  defects,  it surely  follows  that  their more  experienced          stevedore-employer should have discovered the  defects during the          course  of its extended two-year stewardship of the HUDDELL.  See                                                                        ___          Bjaranson, 873 F.2d at 1209 n.7 ("The condition of the ladder was          _________          apparent and obvious  when Bjaranson's employer,  the stevedoring          contractor, boarded the ship and assumed the control of the cargo          operation. Although  the condition may  not have been  obvious to          Bjaranson  at night, the fact  that the condition  was obvious to                                                                         __          his  employer eliminated whatever  duty there may  have been upon          ___  ________          [the vessel owner] to  warn the individual employees.") (emphasis          added).                    Next, Keller contends that the district court improper-          ly  considered his blood-alcohol level  at the time  of the acci-          dent,  since the  doctrine of  pure comparative  fault  would not          permit contributory  negligence to  defeat Keller's  LHWCA claim,                                              ______          but only  to abate  damages.   See Johnson, 613  F.2d at  347; 1A                                         ___ _______          Benedict on Admiralty   56,  at 3-33.  First, the district  court          _____________________          explicitly acknowledged that had Keller proven that the defendant                                          29                                          29          vessel  owner was a cause  of Keller's accident,  the court could                            _          not have treated Keller's  blood-alcohol level as a total  bar to          recovery under the LHWCA.  See Keller, No. 81-549-SD, slip op. at                                     ___ ______          15 ("The court is, of course, aware that were negligence found on                                                   ____ __________ _____ __          the part  of the ship  owner, the  intoxication of Keller  . .  .          ___ ____  __ ___ ____  _____          would  not  serve  necessarily  to totally  disqualify  him  from          recovery.")  (emphasis  added).    Second,  under  the  analogous          comparative  fault  doctrine  for LHWCA  compensation  awards,  a                                                   ____________  ______          stevedore  may  defend by  proving  that  the longshore  worker's          injuries were caused "solely" by his intoxication, cf. 33  U.S.C.                                                             ___            903(c).  While the longshore worker initially enjoys a rebutta-          ble  presumption against such a finding, id.   920(c), the steve-                                                   ___          dore's defense is not  unprovable.   See, e.g., Walker v. Univer-                                               ___  ____  ______    _______          sal  Terminal &  Stevedoring Corp.,  645 F.2d  170, 173  (3d Cir.          __________________________________          1981)  (finding    903(c) intoxication  defense established,  and          noting that the  rebuttable presumption "falls  out of the  case"          once stevedore  proffers  "substantial evidence"  that  longshore          worker's intoxication was sole cause of injury or death).                      Similarly, in a section  905(b) action, the trial court          may assess  the quality of  the vessel owner's  rebuttal evidence          where the  longshore worker failed  to demonstrate a  vessel "de-          fect"8  and where  the vessel  owner has  proffered "substantial"                                        ____________________               8Given the  Scindia  standard,  evidence  of  Keller's  high                           _______          blood-alcohol level cannot be  wholly divorced from the threshold          question whether  a defective design  rendered the Tank  4 ladder          "unreasonably"  dangerous.    A  written  policy forbade  Simplex          workers  from  reporting to  work  intoxicated.   Thus,  Keller's          blood-alcohol  level would be relevant to whether the ladder con-          stituted an "unreasonably" dangerous  condition, since the vessel                                          30                                          30          evidence of the longshore worker's intoxication.  Here, the trial          court's consideration of the blood-alcohol level followed direct-          ly upon  its observations concerning Keller's  failures of proof:          (1)  the absence of persuasive  expert testimony that  the Tank 4                              __________  ______ _________          ladder  design was  so inferior  to anticipated  safety standards          that the defendant vessel  owner could not entrust the  equipment          to  the stevedore's able charge; and (ii) the absence of evidence          of  other accidents  on  the ladder  under substantially  similar          conditions.   In  this context,  we interpret  these trial  court          observations as  an acknowledgment  not only that  Keller utterly          failed to carry  his burden of proof  but that the only  credible                                                             ____          evidence  of possible  causation  (i.e., Keller's  heavy drinking                                             ____          earlier  in the evening and his high blood-alcohol level one hour          after  the fall) in  no respect  implicated the  defendant vessel                           __  __ _______  __________          owner.  See supra note 8.                  ___ _____                    Keller further claims  that but for  two items of  evi-          dence which the district court improperly ignored or excluded, we          would be compelled to conclude  that the district court committed          clear error.   First, the district court  excluded the deposition          testimony of eyewitness Rhonda Rossley, who expressed the opinion          that Keller  had hit  his head  on a railing  prior to  the fall.          Nonexpert-opinion testimony is permitted  only if "(1) rationally          based on the perception of the witness and (2) helpful to a clear                                        ____________________          owner, in turning over  the Tank 4 ladder, reasonably  could rely          on  compliance with the stevedore's policy  on intoxication.  See                                                                        ___          Johnson,  613 F.2d  at  348 (trier  of  fact must  consider  "the          _______          probability and severity of the harm [the condition] poses").            ___________                                          31                                          31          understanding of  the witness' testimony or  the determination of          the fact in issue."   Fed. R. Evid. 701.  See  Swajian v. General                                                    ___  _______    _______          Motors Corp., 916  F.2d 31, 36 (1st Cir. 1990).   The trial court          ____________          ruled that the  proffered deposition testimony  did not meet  the          first  Rule 701 test because Rossley "did not see [Keller] strike          his head, nor could she see  his right hand before he fell[, nor]          observe whether his left hand or his left foot first lost contact          with, respectively, the railing or the ladder rung."  Keller, No.                                                                ______          81-549-SD, slip op. at 12.                      We  review a Rule 701 ruling only for manifest abuse of          discretion.  See United  States v. Paiva, 892 F.2d 148,  156 (1st                       ___ ______________    _____          Cir. 1989).  We  find no abuse  of discretion.  First,  Rossley's          opinion necessarily  depended upon  a forbidden Rule  701 "infer-          ence," because she (i) neither saw Keller strike  his head on the          railing, (ii)  nor testified to any other sensory perception from                                          ___          which  one might rationally infer such an impact (e.g., the sound                                                            ____          of impact,a sudden jolt orhalt in Keller's upwardprogress, a pre-           or post-impact cry, or any outward appearance of a head wound or          bleeding).9  Cf. Swajian, 916 F.2d  at 36 (finding clear abuse of                       ___ _______          discretion  in allowing lay opinion that wheel fell off rear axle          before  car  flipped over,  based  exclusively  on the  witness's          ______          observation that he first  saw wheel crossing the road  while the                                                                  _____                                        ____________________               9Although a medical  doctor testified that Keller  sustained          an eye injury which  could have been consistent with  the Rossley          inference, given that  Keller also suffered  head trauma when  he          landed head-first on the tank floor sixteen feet below the 'tween          deck  the doctor  could not  testify that  such an  inference was          compelled.                                           32                                          32          flip-over was in  progress).  Although  Keller's failure to  call          out or  to try to regain  hold of the ladder  could be consistent          with  sudden disorientation  or  even unconsciousness,  as a  lay          witness  Rossley  would  have  had no  nonspeculative  basis  for          excluding  possible causes other than  a blow to  the head (e.g.,                                                                      ____          intoxication, fatigue and heavy exertion).                      Second, and perhaps more  importantly, this was a bench                                                                      _____          trial,  in which  the trial  judge would  not only  determine the          _____          admissibility  of the evidence but serve as the ultimate trier of          fact.  The Rule 701 admissibility determination turns on  whether          the  inference drawn by the nonexpert lay witness would be "help-                                                                      _____          ful to  . . .  the determination  of the fact  in issue."   Thus,          ___          having considered  the entire  proffer, the trial  judge excluded                                 ______  _______          the Rossley opinion testimony because  the court found no  suffi-          ciently reliable  basis for the speculative inference on which it          was based.  Not only do we agree, but nothing would have required                                                                   ________          the trial judge, as trier of fact, to credit  the Rossley opinion          had it been admitted in  evidence, especially since she possessed          no particular  skill or experience which would  have assisted the          trial court's fact-finding insight.  Cf., e.g., Soden v. Freight-                                               ___  ____  _____    ________          liner Corp., 714 F.2d 498, 512 (5th Cir. 1983) (nonexpert witness          ___________          with  eighteen years'  experience repairing  trucks can  give lay          opinion whether truck was defective).                       Finally, Keller contests the exclusion of evidence that          Simplex cut out  the two railings  on the Tank  4 ladder one  day          after the accident, as proof that the original ladder design con-                                          33                                          33          stituted an "unreasonably" dangerous  condition.  Keller suggests          that this evidence was admissible notwithstanding Rule 407, which          requires  the exclusion  of  subsequent remedial  repairs by  the          defendant  only, not by nondefendants  like Simplex.  See Raymond                                                                ___ _______          v. Raymond Corp., 938 F.2d 1518,  1524 (1st Cir. 1991); Koonce v.             _____________                                        ______          Quaker  Safety Prods. & Mfg. Co.,  798 F.2d 700, 719-20 (5th Cir.          ________________________________          1986).                      At  best, subsequent  remedial measures  are considered          marginally probative of  prior negligence.  See  John H. Wigmore,                                                      ___          Evidence   283, at 174-75 (1979).  In this case, moreover, defen-          ________          dant could have capitalized  on the very same evidence  to demon-          strate that Simplex was expected to make such  structural altera-          tions to the HUDDELL without first consulting defendant, and that          defendant was entitled to  rely on Simplex, as a  reasonably com-          petent  stevedore,  to  take such  preemptive  measures  provided          Simplex deemed them  necessary for  its employees'  safety.   See                                                                        ___          also  infra note 11.   Under the Scindia  delineation of turnover          ____  _____                      _______          duty,  therefore, this evidence was at least a "wash" for Keller,          and actually may  have helped  defendant more than  Keller.   For                                         _________          these reasons,  we conclude that  the exclusion of  this evidence          was at most  harmless.  See Fed. R. Civ.  P. 61 (erroneous exclu-                                  ___          sion  of evidence harmless if it "does not affect the substantial          rights of the parties").10                                         ____________________               10Keller  catalogues various  documentary exhibits  which he          contends  were improperly  excluded.   We  find  no error.    For          example,  Exhibits 10, 21, and 65 were proffered to establish the          contents of  the contract  between Simplex and  defendant.   This          issue was  mooted by the finding  that the Tank 4  ladder did not                                          34                                          34               2.   Post-Turnover Duties of Intervention               2.   Post-Turnover Duties of Intervention                    ____________________________________                    Leaving  no ground  unturned,  Keller  argues that  the          court erred in ruling that the defendant did not breach its post-                                                                      ____          turnover duties:   to  supervise and  inspect the HUDDELL  during          cable loading and to intervene and remedy any hazardous condition          that  developed following turnover.  See Scindia, 451 U.S. at 172                _________ _________ ________   ___ _______          (noting that post-turnover duty  to intervene to remedy unreason-          ably dangerous  condition  may derive  from  custom or  from  the          vessel owner's contractual obligation  to the stevedore).  Keller          contends  that the  court  (1)  disregarded  his claim  that  the          contract  with Simplex  required  the defendant  vessel owner  to          intervene to  effect any safety-related  alterations during cargo          operations; (2) ignored Keller's evidence that it was a customary          or established  practice that  the defendant monitor  the HUDDELL          during  loading operations; and (3)  erred as a  matter of law in                                        ____________________          constitute  an  unreasonably  dangerous  condition.    See  infra                                                                 ___  _____          Section  II.B.2 &  note  11.   Exhibits 34  and 34A  were largely          cumulative  of evidence  already admitted  and  any noncumulative          portions were provided in the van Dissell testimony.  See Fed. R.                                                                ___          Civ.  P. 61 (harmless error); Fed. R. Evid. 403 (governing admis-          sion of "cumulative" evidence).  Finally, Exhibit 73    a mock-up          of a portion of the Tank 4 ladder, used for demonstrative purpos-          es at  trial    was  excludable due  to failure to  lay a  proper          foundation  for  its admission.   See  Rogers v.  Raymark Indus.,                                            ___  ______     _______________          Inc.,  922 F.2d 1426, 1429  (9th Cir. 1991)  (admission of demon-          ____          strative  evidence  entrusted to  trial  court  discretion).   At          trial,  Bijhouwer  challenged the  accuracy  of  the van  Dissell          measurements upon  which Exhibit 73  was predicated.   See United                                                                 ___ ______          States v. Myers,  972 F.2d  1566, 1579 (11th  Cir. 1992)  (noting          ______    _____          that  admission turns  on whether  there is  foundation testimony          that demonstrative evidence is "fair" and "accurate" depiction of          original), cert. denied, 113 S.  Ct. 1813 (1993); Nichols Constr.                     _____ ______                           _______________          Corp  v. Cessna Aircraft  Co., 808 F.2d 340,  353 (5th Cir. 1985)          ____     ____________________          (same).  Finally, relevant  portions of Exhibits 91 and  91A were          read into  the trial  record.  See  Fed. R. Civ.  P. 61;  Fed. R.                                         ___          Evid. 403.                                          35                                          35          determining  that  "a  custom-generated  duty  to  supervise  and          inspect  does not transfer to the ship  owner a duty to eradicate          dangers  reasonably  known  to  and managed  by  the  stevedore."          Keller, No. 81-549-SD, slip  op. at 14 (citing La  Martina v. Pan          ______                                         ___________    ___          Ocean  Shipping Co.,  Ltd.,  815 F.  Supp.  878, 880-81  (D.  Md.          __________________________          1993)).                    A vessel owner's duty  of care normally ceases  once it          has discharged its "turnover" duties and the stevedore-employer's          cargo operations have begun.   Nonetheless, the Supreme Court has          suggested  three settings  in which an  owner might  remain under                                                        _____          some  "continuing" duty  to  monitor, supervise,  or inspect  the          vessel  for  hazards   developing  after  stevedoring  operations                                 __________          commence.  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.   Scin-                                                                      _____          dia, 451 U.S. at 167.  Keller concedes that these conditions were          ___          not met.  Second, a  duty to intervene might attach in  the event          the vessel  owner were to  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  circum-          stances.   Id.  at 174-75.   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,                                          36                                          36          to monitor  stevedoring operations  for the purpose  of detecting          and remedying unsafe conditions.  Id. at 172.                                              ___                    Keller's  "continuing  duty" claim  was founded  on the          contention  that the defendant vessel  owner had either actual or          constructive knowledge  of  an unreasonably  dangerous  condition          during cable  loading operations.   However, he does  not suggest          ______          that the basic structure or  design of the Tank 4  ladder changed                         _________     ______                       _______          after cable loading began (e.g., ladder rungs displaced, loosened                                     ____          or fractured).   Therefore, the defendant could  have breached no          continuing  duty  of care  to  Keller, since  the  district court          __________          supportably found that the Tank 4 ladder configuration created no          "unreasonable"  hazard ab initio.   See Scindia, 451  U.S. at 172                                 __ ______    ___ _______          ("We are of the view that . . . the shipowner has no general duty          by way of supervision or  inspection to exercise reasonable  care          to discover  dangerous conditions that develop  [i.e., a malfunc-                                                 _______          tioning winch] within the  confines of the cargo  operations that          are assigned  to  the stevedore.");  Martinez,  903 F.2d  at  611                                               ________          ("[T]he  alleged unsafe condition  [employees working on "unsafe"          platform] did not develop during cargo operations; it was  either          safe or unsafe at the time the cargo operations began . .  . .");          Pluyer v. Mitsui  O. S. K. Lines, Ltd., 664  F.2d 1243, 1246 (5th          ______    ____________________________          Cir. 1982)  (noting "different  situation" than in  Scindia where                                                              _______          the  "case  involves  the  vessel's liability  for  hazards  that          antedate or  are coincident with the commencement of cargo opera-          ________          tions").                                          37                                          37                    Keller intimates that the  relevant "change" or "devel-          opment" which  would have been  discovered had defendant  met its          alleged continuing duty to monitor and intervene was  the failure          of Simplex cable loaders to use the Tank 4 ladder in the intended          manner.  Thus, Keller would  interpret the district court  ruling             that  "a custom-generated duty  to supervise and  inspect does          not  transfer to  the  ship owner  a  duty to  eradicate  dangers          reasonably known to and  managed by the stevedore"     as holding          that a vessel owner can never be duty-bound to intervene  once an                                  _____          on-board danger (the risk that longshore workers might resort  to          the "over" and "between" methods  of egress) becomes "obvious" to          the stevedore.                     We cannot  subscribe to Keller's reasoning.   First, as          already noted,  we  discern no  indication that  the trial  court          credited evidence  that the two alternate methods of exiting Tank          4 were not  reasonably safe.  Second, even if  the district court          had found these  other methods of egress "unsafe,"  initially the                                                              _________          vessel  owner could  rely  on Simplex  to  manage such  "obvious"          defects, unless and until it appeared that Simplex's decision not          to  take  remedial measures  (warnings  or  railing removal)  was          "obviously improvident"  under the circumstances.  Keller conced-          ed, however, that  Simplex, which plainly had actual or construc-          tive notice as to how its longshore workers were exiting Tank  4,          never  received an employee complaint about the Tank 4 ladder and          _____          that no accident  ever occurred  on the ladder  either before  or               __           ____          after  the Keller incident.   Thus, evidence  presented by Keller                                          38                                          38          did not begin  to establish defendant's  actual knowledge of  the          alleged "hazard" on the  part of the defendant vessel  owner, let          alone any obvious improvidence on  the part of Simplex.  For  the          same  reason, even if the defendant vessel owner had been under a          contractual or  custom-generated duty to  monitor and  intervene,          Keller failed to establish a breach.11                                          III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Given the  exacting standards of care  incumbent upon a          stevedore under the LHWCA, and  the supportable trial court find-          ings, we are left  with nothing approaching a "definite  and firm          conviction  that a mistake has  been committed."  Holmes Transp.,                                                            _______________          Inc., 983 F.2d at 1129.   Once the trier of fact  determined that          ____          the  Tank 4 ladder was "safe," its design compatible with "appli-          cable"  maritime  safety  standards, and  any  potential  hazards          sufficiently "obvious" to Simplex longshore  workers, it followed                                        ____________________               11Keller  argues that  the  contract between  defendant  and          Simplex unambiguously provided that defendant, not Simplex, would                                                         ___ _______          bear  primary responsibility for ongoing "safety" inspections and                _______          modifications  to  the HUDDELL's  work areas  following turnover.          Keller points to a contract provision barring Simplex from making          unilateral  structural alterations  to  the HUDDELL.   From  this          __________          premise, he contends that Simplex was compelled to use the Tank 4          ladder  in existence  at  turnover.   We  do not  agree.   First,          contrary to  the trial  court's alternate finding,  this argument          presumes that the  ladder was  "unsafe."    Second, the  contract          contemplated that Simplex would  bear the primary role in  deter-                            _______                 _______          mining whether  modifications were needed, even  if defendant was          to be consulted before "major" modifications were undertaken.  In          any event,  this contention falls  far short  of demonstrating  a          contractual  duty on the part  of the vessel  owner to monitor in                                                                 _______          the first instance.               _____ ________                                          39                                          39          inexorably that the vessel owner was entitled to rely on Simplex,          as an "expert and experienced"  stevedore, to act with reasonable          care in  supervising its workers  in their  interaction with  and          avoidance  of  any such  "obvious"  hazards on  board  the vessel          during  cargo loading  operations.   Any relevant  "hazard" could          have  been averted  by  Simplex in  various  ways, including  the          permanent removal of the safety railings at the top of the Tank 4          ladder, a  warning on the ladder as to safe methods of egress, or          simple instruction of its longshore workers.                     The judgment is affirmed.  The parties shall bear their                    The judgment is affirmed.  The parties shall bear their                    ________________________   ____________________________          own costs.          own costs.          _________                                          40                                          40
