USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 94-1775

ROCCO P. DIGIOVANNI, JR.,

Plaintiff, Appellant,

v.

TRAYLOR BROTHERS, INC.,

Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

_________________________

Before

Torruella, Chief Judge,

___________

Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges.

______________

_________________________

David B. Kaplan, Thomas M. Bond, The Kaplan/Bond Group, Paul

_______________ ______________ _____________________ ____
V. Gallogly, and
___________

Lovett, Schefrin, Gallogly & Harnett, Ltd.

___________________________________________

on

brief for appellant.

Andrew Rothschild,
__________________

Eric D. Paulsrud,
_________________

and

Lewis, Rice &

______________

Myles W. McDonough and Sloane and Walsh on

___________________
_________________

brief for J.M.

Fingersh, L.C. on brief for appellee.

______________

Cashman, Inc. and Cashman, KPA, A Joint Venture, amici curiae.

_________________________

October 10, 1996

_________________________

OPINION EN BANC
_________________________

Per Curiam.
Per Curiam.

This appeal comes before the en banc court

__________

following

the withdrawal

February 6,

judgment

1996,

statute,

in which

The

panel of

decision, issued

this court

en banc court similarly withdrew

vacated

on

a decision

down by a different panel that construed the same federal

namely,

section 905(b)

Workers' Compensation

Act (LHWCA),

materially different way.

No. 94-1581.

of

the

Longshore and

33 U.S.C.

Harbor

901-950, in

See Morehead v. Atkinson-Kiewit, J/V,

___ ________
____________________

We granted rehearing en banc in both cases so as to

afford us an opportunity

circuit

a two-to-one

of the United States District Court for the District of

Rhode Island.1

handed

of

concerning

the

to formulate a consistent rule

underlying

question

of

in this

statutory

construction.

This

case

illustrates

the problem.

The defendant,

Traylor Bros., Inc. (Traylor), contracted with the State of Rhode

Island to construct a

new bridge spanning Narragansett

North Kingstown to Jamestown.

Once work began, Traylor chartered

tugboats and nonmotorized barges to

dams

for

the

new

bridge.

Bay from

It

assist it in building coffer

hired

pile-driving

crews,

carpenters, mechanics, and crane operators to man the barges.

In

main

mid-1988, Traylor

deck was fitted with

towed the

a crane and

barge BETTY

F, whose

a vibratory pile-driving

hammer, to the coffer dam construction site.

Thereafter, Traylor

moved the BETTY

locations where

F to

various other aquatic

it

____________________

1The district court's opinion

is published.

See DiGiovanni
___ __________

v. Traylor Bros., Inc., 855 F. Supp. 37 (D.R.I. 1994).

___________________

functioned as

During

a stationary

most pile-driving

carry materials and to

platform for the

operations,

a supply

barge, used

house the powerpack for the

was moored alongside the BETTY F.

employees as "tag men" to stand

grasp opposing

pile-driving crew.

to

pile driver,

Traylor routinely assigned two

on the supply barge's main deck,

guide ropes attached to the vibratory hammer, and

steady the implement

as it

moved into position

over the

metal

piles that were to be driven.

Beginning in

powerpack began to

deck of the

September of

1988, worn fittings

leak hydraulic fluid

supply barge.

Crewmen

on the

which spilled onto

the

complained unsuccessfully to

their superiors and to the union steward about the hazard.

also tried to alleviate the problem from time to time,

They

but to no

avail.

On September 30, 1988, plaintiff Rocco DiGiovanni, Jr.,

who

had been

supply

assigned by Traylor

barge, slipped on

received

as a tag

spilled hydraulic fluid

across the oil-covered deck to

hammer with his guide rope.

to work

man on the

as he started

steady the BETTY F's pile-driving

DiGiovanni was seriously injured and

workers' compensation benefits from Traylor under LHWCA

904, 33 U.S.C.

904.

Not satisfied with the avails of workers' compensation,

DiGiovanni

noted

pro
___

sued in the

federal district

that Traylor was not only his

hac
___

vice
____

of

both

the

BETTY

court.

His complaint

employer but also the owner

and

the

supply

barge.

Accordingly, he asseverated that Traylor was liable in negligence

pursuant to 33 U.S.C.

The district

matter

v.

905(b) in its capacity as vessel owner.

court entered

judgment for Traylor

of law following a three-day bench trial.

Traylor Bros., Inc.,

____________________

mentioned

earlier, a panel

855 F.

Supp.

See DiGiovanni
___ __________

37 (D.R.I.

of this court

as a

1994).

As

vacated the decision.

The panel held that the lower court had applied too restrictive a

test

to DiGiovanni's "dual capacity" claim.

It was against that

backdrop that we granted en banc review.

The en banc court has

the companion

case.2

F.3d ___ (1st Cir.

now issued its opinion resolving

See Morehead v.
___ ________

1996) (en banc).

proper interpretation of LHWCA

Atkinson-Kiewit, J/V, ___

____________________

This opinion

clarifies the

905(b) in "dual capacity" cases.

In the view of

the majority of the judges of

Morehead is controlling here.

________

reasoning

in sufficient

the en banc court,

Moreover, Morehead explicates our

________

detail that

added comment on

our part

would be supererogatory.

It suffices to

distinctions

that our

say that

dissenting

we are not

persuaded by

brother raises.

things,

Morehead, as applied to
________

the facts of

plainly

requires that we depart

from the position

panel and

reinstate the district

Traylor's favor.

As we

the

see

the instant case,

court's entry

taken by the

of judgment

in

We need go no further.

____________________

2The
treated

appeals
in a single

in this

case and

in

Morehead could
________

en banc opinion because

not be

a senior judge who

had sat on the Morehead panel was eligible to participate

________

in the

en banc

decision in

See 28
___

U.S.C.

46(c); 1st Cir. Loc. R. 35.3.

that case, but

not in this

Affirmed.
Affirmed.
________

- Dissenting Opinion Follows - Dissenting Opinion Follows -

case.

CYR, Circuit Judge (dissenting).

CYR, Circuit Judge (dissenting).
______________

forth in Morehead v.
________

1996)

1996)],

(Cyr, J.,

On the

grounds set

Atkinson-Kiewit, J/V, __ F.3d __

____________________

dissenting)

[No. 94-1581

respectfully dissent.

The

(1st

(1st Cir.

Cir. Oct.

district court

__,

entered

judgment for Traylor Brothers, Inc. in reliance on decisional law

which presumes

with both the

a legal fiction

LHWCA and

of dual capacity

the Supreme Court

that conflicts

decision in

Scindia
_______

Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).

_____________________
_____________

two principal reasons,

reliance on the dual

For

capacity fiction in

the present case is less appropriate than in Morehead.

________

First, unlike

doubt that

fictional personae

of

that it

its employees

Traylor

F.3d

[No. 94-1581,

dissenting).

no

workplace where DiGiovanni

cannot reliably be

at the site

__ n.6

record leaves

haphazardly between Traylor Brothers' two

workplace safety

at

the present

"active control" over the

was injured shifted so

cadre

Morehead
________

Indeed, the

Brothers

of the

expected to

injury.

slip op.

determined which

at

See
___

control

Morehead, __
________

48 n.6]

district court acknowledged

(Cyr, J.,

that the

failure to stop the powerpack leakage for nearly a month amounted

to

negligence,

negligence

and it

which

is more

caused

than

merely arguable

DiGiovanni's

injury

is

that the

directly

attributable to the absence of any clear delineation of responsi-

bility by

Thus,

Traylor Brothers

for its

workplace-safety decisions.

on the present record Traylor Brothers did not approach an

efficient

"bifurcation" of its "vessel-owner" and "construction"

operations.

Second,

leakage

resorted

(e.g.,

the

during

persisted, Traylor

to a

series

the

extended

Brothers' supervisors

of patently

tying the powerpack with

oil-slickened deck).

period

the

powerpack

and employees

inadequate stopgap

measures

rags, spreading kitty litter on

Further, even

assuming that

an open

hatch arguably might serve some legitimate vessel or construction

purpose

in

particular case,

dangerous effluent

the

faulty

not only represented an

powerpack and

its

open and conspicuous

hazard, but served no conceivable purpose which might warrant the

extended failure of

persona

leak

Traylor Brothers'

fictional "vessel

owner"

to second-guess its alter ego's decision not to stop the

sooner.

Even

Traylor

Brothers

defense

on remand,

dispute as

if one

accepts

might establish

DiGiovanni

to whether

an

the dubious

premise

that

affirmative "bifurcation"

certainly

generated

Traylor Brothers' "vessel

factual

owner" persona

knew of the abortive stopgap remedies, and should have known that

its alter ego's decision not to undertake further remediation was

"obviously improvident."

(noting genuine

because it

winch

further

Cf. Scindia,
___ _______

451 U.S. at

factual dispute whether vessel

knew that stevedore's

for two days was obviously

factual findings).

175, 178-79

owner was liable

decision not to

fix defective

improvident, and remanding for

I therefore would remand the case to

the district court for further factual findings.