
USCA1 Opinion

	











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

                              _________________________

          No. 94-1775

                              ROCCO P. DIGIOVANNI, JR.,

                                Plaintiff, Appellant,

                                          v.

                               TRAYLOR BROTHERS, INC.,

                                 Defendant, Appellee.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                              _________________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

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

                              _________________________

               David B. Kaplan, Thomas M. Bond, The Kaplan/Bond Group, Paul
               _______________  ______________  _____________________  ____
          V. Gallogly, and  Lovett, Schefrin, Gallogly  & Harnett, Ltd.  on
          ___________       ___________________________________________
          brief for appellant.
               Andrew  Rothschild,  Eric D.  Paulsrud,  and  Lewis, Rice  &
               __________________   _________________        ______________
          Fingersh, L.C. on brief for appellee.
          ______________
               Myles  W. McDonough and Sloane  and Walsh on  brief for J.M.
               ___________________     _________________
          Cashman, Inc. and Cashman, KPA, A Joint Venture, amici curiae.

                              _________________________

                                   October 10, 1996

                              _________________________

                                   OPINION EN BANC
                              _________________________

















                    Per Curiam.  This appeal comes before the en banc court
                    Per Curiam.
                    __________

          following  the withdrawal  of  a two-to-one  decision, issued  on

          February 6,  1996,  in which  a  panel of  this court  vacated  a

          judgment  of the United States District Court for the District of

          Rhode Island.1  The  en banc court similarly withdrew  a decision

          handed  down by a different panel that construed the same federal

          statute,  namely,  section 905(b)  of  the  Longshore and  Harbor

          Workers' Compensation  Act (LHWCA),  33 U.S.C.     901-950, in  a

          materially different way.   See Morehead v. Atkinson-Kiewit, J/V,
                                      ___ ________    ____________________

          No. 94-1581.  We granted rehearing en banc in both cases so as to

          afford us an opportunity  to formulate a consistent rule  in this

          circuit   concerning  the   underlying   question  of   statutory

          construction.

                    This  case  illustrates  the problem.    The defendant,

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

          Island to construct a  new bridge spanning Narragansett  Bay from

          North Kingstown to Jamestown.  Once work began, Traylor chartered

          tugboats and nonmotorized barges to  assist it in building coffer

          dams  for   the  new  bridge.    It   hired  pile-driving  crews,

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

                    In  mid-1988, Traylor  towed the  barge BETTY  F, whose

          main  deck was fitted with  a crane and  a vibratory pile-driving

          hammer, to the coffer dam construction site.  Thereafter, Traylor

          moved the BETTY  F to  various other aquatic  locations where  it

                              
          ____________________

               1The district court's opinion  is published.  See DiGiovanni
                                                             ___ __________
          v. Traylor Bros., Inc., 855 F. Supp. 37 (D.R.I. 1994).
             ___________________

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          functioned as  a stationary  platform for the  pile-driving crew.

          During  most pile-driving  operations,  a supply  barge, used  to

          carry materials and to  house the powerpack for the  pile driver,

          was moored alongside the BETTY F.  Traylor routinely assigned two

          employees as "tag men" to stand  on the supply barge's main deck,

          grasp opposing  guide ropes attached to the vibratory hammer, and

          steady the implement  as it  moved into position  over the  metal

          piles that were to be driven.

                    Beginning in  September of  1988, worn fittings  on the

          powerpack began to  leak hydraulic fluid  which spilled onto  the

          deck of the  supply barge.  Crewmen  complained unsuccessfully to

          their superiors and to the union steward about the hazard.   They

          also tried to alleviate the problem from time to time,  but to no

          avail.

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

          who  had been  assigned by Traylor  to work  as a tag  man on the

          supply  barge, slipped on  spilled hydraulic fluid  as he started

          across the oil-covered deck to  steady the BETTY F's pile-driving

          hammer with his guide rope.  DiGiovanni was seriously injured and

          received  workers' compensation benefits from Traylor under LHWCA

            904, 33 U.S.C.   904.

                    Not satisfied with the avails of workers' compensation,

          DiGiovanni  sued in the  federal district  court.   His complaint

          noted  that Traylor was not only his  employer but also the owner

          pro  hac  vice  of  both  the  BETTY  F  and  the  supply  barge.
          ___  ___  ____

          Accordingly, he asseverated that Traylor was liable in negligence


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          pursuant to 33 U.S.C.   905(b) in its capacity as vessel owner.

                    The district  court entered  judgment for Traylor  as a

          matter  of law following a three-day bench trial.  See DiGiovanni
                                                             ___ __________

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

          mentioned  earlier, a panel  of this court  vacated the decision.

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

          test  to DiGiovanni's "dual capacity" claim.  It was against that

          backdrop that we granted en banc review.

                    The en banc court has  now issued its opinion resolving

          the companion  case.2  See Morehead v.  Atkinson-Kiewit, J/V, ___
                                 ___ ________     ____________________

          F.3d ___ (1st Cir.  1996) (en banc).  This opinion  clarifies the

          proper interpretation of LHWCA   905(b) in "dual capacity" cases.

          In the view of  the majority of the judges of  the en banc court,

          Morehead is controlling here.   Moreover, Morehead explicates our
          ________                                  ________

          reasoning  in sufficient  detail that  added comment on  our part

          would be supererogatory.

                    It suffices to  say that  we are not  persuaded by  the

          distinctions  that our  dissenting  brother raises.    As we  see

          things,  Morehead, as applied to  the facts of  the instant case,
                   ________

          plainly  requires that we depart  from the position  taken by the

          panel and  reinstate the district  court's entry  of judgment  in

          Traylor's favor.  We need go no further.


                              
          ____________________

               2The  appeals  in this  case and  in  Morehead could  not be
                                                     ________
          treated  in a single  en banc opinion because  a senior judge who
          had sat on the Morehead panel was eligible to participate  in the
                         ________
          en banc  decision in  that case, but  not in this  case.   See 28
                                                                     ___
          U.S.C.   46(c); 1st Cir. Loc. R. 35.3.

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          Affirmed.
          Affirmed.
          ________



                            - Dissenting Opinion Follows -
                            - Dissenting Opinion Follows -
















































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                    CYR, Circuit  Judge (dissenting).   On the  grounds set
                    CYR, Circuit  Judge (dissenting).
                         ______________

          forth in Morehead v.  Atkinson-Kiewit, J/V, __ F.3d __  (1st Cir.
                   ________     ____________________

          1996)  (Cyr, J.,  dissenting)  [No. 94-1581  (1st  Cir. Oct.  __,

          1996)],  I  respectfully dissent.    The  district court  entered

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

          which presumes  a legal fiction  of dual capacity  that conflicts

          with both the  LHWCA and  the Supreme Court  decision in  Scindia
                                                                    _______

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

          two principal reasons,  reliance on the dual  capacity fiction in

          the present case is less appropriate than in Morehead.  
                                                       ________

                    First, unlike  Morehead  the present  record leaves  no
                                   ________

          doubt that  "active control" over the  workplace where DiGiovanni

          was injured shifted so  haphazardly between Traylor Brothers' two

          fictional personae  that it  cannot reliably be  determined which

          cadre  of  its employees  Traylor  Brothers  expected to  control

          workplace safety  at the site  of the  injury.  See  Morehead, __
                                                          ___  ________

          F.3d  at  __ n.6  [No. 94-1581,  slip op.  at  48 n.6]  (Cyr, J.,

          dissenting).   Indeed, the  district court acknowledged  that the

          failure to stop the powerpack leakage for nearly a month amounted

          to  negligence,  and it  is more  than  merely arguable  that the

          negligence   which  caused   DiGiovanni's   injury  is   directly

          attributable to the absence of any clear delineation of responsi-

          bility by  Traylor Brothers  for its  workplace-safety decisions.

          Thus,  on the present record Traylor Brothers did not approach an

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

          operations.


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                    Second,   during  the  extended  period  the  powerpack

          leakage  persisted, Traylor  Brothers' supervisors  and employees

          resorted  to a  series  of patently  inadequate stopgap  measures

          (e.g.,  tying the powerpack with  rags, spreading kitty litter on

          the  oil-slickened deck).   Further, even  assuming that  an open

          hatch arguably might serve some legitimate vessel or construction

          purpose  in  a  particular case,  the  faulty  powerpack and  its

          dangerous effluent  not only represented an  open and conspicuous

          hazard, but served no conceivable purpose which might warrant the

          extended failure of  Traylor Brothers'  fictional "vessel  owner"

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

          leak  sooner.   Even  if one  accepts  the dubious  premise  that

          Traylor  Brothers  might establish  an  affirmative "bifurcation"

          defense  on remand,  DiGiovanni  certainly  generated  a  factual

          dispute as  to whether  Traylor Brothers' "vessel  owner" persona

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

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

          "obviously improvident."   Cf. Scindia,  451 U.S. at  175, 178-79
                                     ___ _______

          (noting genuine  factual dispute whether vessel  owner was liable

          because it  knew that stevedore's  decision not to  fix defective

          winch  for two days was obviously  improvident, and remanding for

          further  factual findings).  I therefore would remand the case to

          the district court for further factual findings.








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