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, Donah
__________________
____________________
_____
McCaffrey, Tucker & Ciandella, David S. Brown, and Sheehan, Phinn
______________________________ _______________
______________
Bass & Green, were on brief for appellant.
____________
Gretchen Leah Witt, Assistant United States Attorney, with w
___________________
Paul M. Gagnon, United States Attorney, was on brief for appellee.
______________
____________________
October 19, 1994
____________________

CYR,
CYR,
appeals
Harbor
905(b)

from a

Circuit Judge.
Circuit Judge.
_____________
belated

judgment dismissing

Workers Compensation Act suit, see

___
(1993) (LHWCA),

tained in a

to recover

nor

America.

V. B.

33 U.S.C.

and

901-950,

injuries sus-

owned by defendant-

As appellant has

careful scrutiny disclosed

Keller

his Longshore

damages for

fall on board a maritime vessel

appellee United States of

strated

Plaintiff Steven

that the

not demon-

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

ARTHUR M.

HUDDELL,

motorized

barge

purchased

by the

a World

for

States Navy converted

War II

storing and

Navy

Liberty Ship,
transporting

from Simplex

Wire and

the U.S.S.
into a

maritime
Cable

Co.

non-

cable

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.

temporary

employees

these tanks from

the 'tween deck for the

incoming "wet" cable in

the HUDDELL's

known as cable loaders

Simplex hired

to descend into

purpose of winding the

concentric layers onto a spool.

retrofitting,

the Navy

installed a

During

nonremovable

metal barrier around Tank 4 to prevent workers on the 'tween deck

2
2

from

falling into the tank.

rupted safety railings

The barrier

located at

included two uninter-

the top of

an access

ladder

attached to the interior wall of the tank to permit access to and

from the tank floor.
would climb
options

In order to exit the tank,

a cable loader

to the top rungs of the ladder, at which point three

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

edge of the

floor and

tank, then

located six inches

crawling forward and

lower railing and between

two railings;

from the

outside

passing under
_____

the

the vertical stanchions supporting the

(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
was

the time Simplex hired Keller as a cable loader, he

nonmatriculating

Hampshire.

On the night of

bar, where he and his

(or

sophomore

two six-packs)

at

the

University

November 4, 1979, Keller

of

New

went to a

friends drank approximately 120-160 ounces

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.
the ladder from

the 'tween

He and several coworkers climbed down

deck into Tank

where they loaded cable until 2:00 a.m.

4 without

incident,

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

____
as he began
attempting

on one of the two top rungs

to raise

his right leg,

of the ladder.

he fell backward,

to regain his purchase nor

Then,

neither

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
the

demonstrating that a

influence.

(amended

See
___

N.H.

Rev.

1994, lowering limit to

motor vehicle operator

is under

Stat. Ann.

262.A-63

.08).

the fall, Keller

Since

(1963)

has remained amnesiac as to all events surrounding the accident.

against

Following

a seven-day

the United

States for

bench trial on
negligently

Keller's claims

installing "unsafe"

lighting and railings and

failing to warn Simplex
U.S.C.

an "unsafe" ladder in Tank

workers of the potential danger,

905(b), the district court

to the United States.

4, and for

see 33
___

ultimately awarded judgment

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

judgment

deprive

the

trial

the bench trial and entry

court findings

of

the

of final

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

erroneous factual
see Fed.
___
vessel
trict

the district

findings, or

R. Civ. P. 52(a),

fail to make

inspect

or

misdefine a

vessel

supervise cargo

care?

owner's

loading

clearly

required findings,

regarding the alleged

owner's "turnover" duties of

court

court make

breach of the

Third,

did the dis-

"continuing" duty

operations

to

for developing

hazards?
A.
A.

The Decision-making Delay

The Decision-making Delay
_________________________
First, Keller

claims that an

delay between trial and

trial

unprecedented eight-year

the entry of judgment, coupled

judge's failure

to refresh

his recollection

with the

through re-

course to a complete trial transcript prior to making findings of

fact,
"access

resulted in
to the

a violation

courts"

of his

and to

due

constitutional
process, see
___

amends. I, V; Ad Hoc Comm. on Judicial Admin.

________________________________
488 F.2d 1241, 1244
might
"denied

violate

for too long his day

986 (1974),

or in

rights

if a

Const.

v. Massachusetts,
_____________

(1st Cir. 1973) (noting that

constitutional

U.S.

right to

civil

pretrial delay
________
litigant

is

in court"), cert. denied, 416 U.S.

____ ______

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

year delay).

Cir. 1989) (excusing

Keller attributes the purported

two and one-half

generality in the

district court findings, see infra Section II.B, to this extended

___ _____
decision-making delay,

and

presumption that the court

detailed findings as it

implicitly relies

on

was unable to make more

conclusive

complete and

could not recall the evidence

presented

at trial almost eight years earlier.

Keller

concedes that

neither Chamberlin
__________

concluded that prolonged decision-making

vacatur.

Nor

(rejecting per se
___ __

bounding decision-making
also,
____

delay, per se, requires

___ __

has he cited authority for a per se rule fixing an

___ __

outer limit on decision-making delay.

at 1244

nor Fernberg
________

rule under

Cf. Ad Hoc Comm., 488 F.2d

___ ____________
Federal Constitution

delay in state court

Los Angeles County Bar Ass'n v.

_____________________________

for

civil cases); cf.

___

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.

ad hoc
__ ___

appellate scrutiny

In the first place,

is indispensable

to the

core deter-

mination whether delay rendered the decision unreliable.

Second-

ly, it is

affords

highly doubtful that

"an effective means of

direct appellate review

enforcing district court timeliness." See

___

Phonetele, Inc. v. American Tel. & Tel. Co.,

_______________
_________________________
(9th Cir.
112

1989) (delay approximating four

S. Ct. 1283 (1992).

889 F.2d 224,

232

years), cert. denied,

____ ______

Thirdly, remands for reconsideration or

6
6

retrial

yield yet

litigants.

further delays,

For these reasons, and

exacerbating the

burdens on

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

on

remain

despite

focused

inordinate

ensuring that

decision-making

unless their reliability

trial

of its

severe impediments
remand

of fact

judgment

findings,

be

squandered

not
We

therefore opt

decision rendered the

unreliable to

is warranted

to reliable

for new trial.

court

the entire record with a view to

prolonged delay in reaching a

court's findings

vacation

delay,

has been undermined.

for careful de novo scrutiny of

__ ____
whether the

trial

the degree

despite the

fact-finding in

Cf. Barker
___ ______

that

admittedly

the event of

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
and judgment, for
explanation,
that

the

which we

responsibility
expedite the

have been unable

neither Keller

district court
with

interval between

nor the

did

care.

decisionmaking

not

to glean

trial

adequate

record on

appeal suggests

perform its

decision-making

As Keller's

several

process acknowledge,

requests
the

to

district

court was in no sense indifferent to its responsibility to render

a decision but encountered
same

time it

was required

extraordinary docket pressures at the

to give
7
7

precedence to

its criminal

caseload.

See Speedy Trial Act, 18 U.S.C.

___
Nor would

we well serve

3161 (1993).

the interests of

justice, or

the integrity of the decision-making process, were we

that

the absence

district

court

of a

complete trial

incapable

of

transcript

determining

witness demeanor and credibility,

to presume

rendered the

matters

relating to

or to recollect or reconstruct

trial testimony, through other reliable means (viz., trial notes,

___
voluminous
at 16 ("The

trial exhibits).
court in the

See Keller, No. 81-549-SD, slip op.

___ ______

course of rendering

reviewed all of the exhibits . . . .").

bility incumbent on
the

allegations that

findings is not

the trier

has

After all, the responsi-

an appellant to substantiate

sufficiency of trial court

conclusory

its decision

of fact

a challenge to

met merely with

could

not have

recalled or

reconstructed the evidence without

transcript.

Moreover, this case does not require us to speculate

as

to the

reliability of

the trial

a complete trial

judge's findings,

complete trial transcript is available for the purpose.

regards

the claim

that

the trial

judge's findings

since a

Thus, as

themselves

evince prejudice from the extended decision-making delay, we test

Keller's

thesis as in any

findings were
painstaking
complete

other case, by

infected

with

scrutiny of

the

trial transcript.

"clear

inquiring whether the

error" based

entire trial
See
___

on

our

record, including

own

Interstate Commerce Comm'n v.

___________________________

Holmes Transp., Inc., 983 F.2d 1122, 1129 (1st Cir. 1993) (noting
____________________
that

appellate

unless,

after

court must

defer

reviewing entire

to

trial court

record,

it

is

fact-finding
left with

the

8
8

"definite

and firm

conviction that a

mistake has

been commit-

ted").
B.
B.

The Merits
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 section 905(b),2 to provide a vessel in such condition 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" stevedore, 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 formulating 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 indirectly and any agreements or warranties to
the contrary shall be void. . . . The liability of the vessel under this subsection shall
not be based upon the warranty of seaworthiness or a breach thereof at the time the
injury occurred.
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

(6)

If any design
"hazard," such

(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 managed by the stevedore," id. at 14.
___

1.
1.

The Vessel Owner's "Turnover" Duties of Care

The Vessel Owner's "Turnover" Duties of Care
____________________________________________

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;
deviation constituted a potential
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
___

a.
a.

Applicable Law
Applicable Law
______________

The definition of a vessel owner's duties of care under

LHWCA

905(b) is a matter

first instance, see

___

of law for the district court

Elberg v.
______

Mobil Oil Corp.,

_______________

967 F.2d

in the

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
______
by failing
duties,

to distinguish

the district

(1st Cir. 1993).

between

court

"turnover" and

misconstrued the

incumbent upon a vessel owner under LHWCA

As it pertains

Keller claims that

to Keller and

"continuing"

standard of

care

905(b).
Simplex, in its

current

10
10

incarnation the LHWCA is a strict liability statute.

or

harbor

worker such

as

Keller,

injury, may recover disability

who incurs

LHWCA, such

Conversely,

an award of

as Keller recovered

work-related

and medical compensation from the

stevedore-employer (viz., Simplex) even though the

____
not at fault.

A longshore

stevedore was

compensation under

from Simplex, is

the longshore

worker's exclusive remedy against the stevedore-employer.

_________
U.S.C.

904, 905(a); Williams v.

________

(1st Cir. 1993).

the

Jones, 11 F.3d 247,

_____

See 33
___

250 n.1

Until 1972,
vessel
______

owner on
_____

breach

of the

could

be

an injured longshore worker

two distinct
warranty

of "seaworthiness."

established more

easily

showing that some condition or

at the time of

legal theories:

than

the sole

Flynn & Dale S. Cooper,

became virtual

longshore workers.
nonnegligent

cause of the

by

vessel

even if

hazard.

See
___

U.S. 85, 94 (1946); Ellen M.

91, at 5-2 to

Benedict on Admiralty].
_____________________

insurers of

the on-board

Vessel

safety of

Although the only legal recourse available to

vessel

owner

was

against the stevedore-employer, even

unless

negligence, simply

1A Benedict on Admiralty
_____________________

5-4 (7th ed. 1993) [hereinafter:

and

"Unseaworthiness"

appurtenance on board the

Seas Shipping Co. v. Sieracki, 328

__________________
________

the

negligence

the accident was unreasonably hazardous,

the stevedore-employer was

owners thus

could sue the

the hazardous

condition or

stevedore's negligence.

indemnification

scheme underwent dramatic adjustment.

claim

that remedy was unavailable

appurtenance was due

In

11
11

an

1972,

the LHWCA

to the

remedial

Congress greatly increased

the amount of compensation recoverable from the stevedore-employer, repudiated

third-party

the warranty

actions

of "seaworthiness"

against

injured longshore worker to

the

vessel

as a

owner,

basis for

required

prove negligence on the part

the

of the

vessel owner, and precluded a negligent vessel owner from obtaining indemnification from the stevedore-employer.
905(b); supra note 2.
_____
of the
__ ___

See 33 U.S.C.
___

These changes were designed "to shift more

_____ ____

responsibility for
______________

compensating injured

longshoremen to

the party best able to prevent injuries: the stevedore-employer."

__________________
Howlett
_______

v. Birkdale Shipping Co.,

_____________________

(emphasis added).

114 S. Ct.

2057, 2063 (1994)

Consequently, at the present

time the duties

of care incumbent upon a vessel owner fall into two broad categories:

(i) so-called "turnover" duties

those which are to be

discharged before the owner consigns the vessel

______
for cargo

loading operations

duties, such
may

as inspection,

and

to the stevedore

(ii) so-called "continuing"

supervision or

intervention, which

persist after the stevedore commences cargo operations.

_____

Scindia, 451 U.S. at 166-67, 172-76.

_______
categories of "turnover" duty,

See
___

There are two distinct sub-

depending on whether an unreason-

ably hazardous condition on board the vessel is patent or latent.

(i)
(i)

The Vessel Owner's "Duty of Safe Condition"

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

dore poses

no reasonably foreseeable
__ __________ ___________

risk to

to the steve-

any worker,

even

assuming a complete failure on the part of the stevedore-employer

12
12

to monitor the

vessel workplace for safety.

because longshoring

On the other hand,

is particularly dangerous, in

inherently so, see Johnson

___ _______

many respects

v. A/S Ivarans Rederi, 613

__________________

339 n.5 (1st

Cir. 1980), few

satisfy such

an exacting threshold.

F.2d 334,

on-board appurtenances would

ever

Accordingly, the "foresee-

ability" standard to which a vessel owner is held under its "duty

of

safe condition" has been

circumstances" now governs

turn

the vessel

experienced
___________
should

over

stevedoring
___________

expect to
______ __

relaxed:

"ordinary

care under the

the owner's discharge of its

"in such

condition

contractor, mindful
__________

encounter,
_________

arising from

that an
of the
the

duty to

expert
______

and
___

dangers he

hazards of

the

ship's

service or

ordinary care"

otherwise, will

to

conduct

cargo

safety to persons and property."

Inc.
____

be able

by the

operations

exercise of

"with

reasonable

See Federal Marine Terminals,

___ __________________________

v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18 (1969)

_____________________

(emphasis added) (citation omitted).

Unlike

the

subject to detailed
for

affording its

U.S.C.

941

vessel owner,

workers a

(1993); 29

dia, 451 U.S. at 170.

___

"safe" workplace.

C.F.R.

stevedore is

e.g., 33
____

"ladders"); see also

___ ____

1918.25

Scin_____

Thus, a vessel owner "reasonably" may rely

their interaction with and

own employees in

avoidance of "obvious" or "anticipat-

ed" hazards foreseeably associated

See,
___

See,
___

1918.1-1918.106,

stevedore-employer's supervision of its

owner's vessel.

the

legislative and administrative prescriptions

(1993) (implementing regulations for

on the

however,

with stevedoring on board the

e.g., Polizzi v. M/V Zephros II Monrovia,

____ _______
________________________
13
13

860

F.2d 147, 149 (5th

Co., 730 F. Supp.

___

Cir. 1988); Jupitz

______

1358, 1362 (D. Md.

v. National Shipping
_________________

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).

vessel owner may be

pated" hazards, upon

Conversely, under

held liable, even for "obvious"

a showing that

abled the stevedore-employer or

_____
ameliorative

F.2d 375,

or "antici-

the owner effectively

dis____

the longshore worker from taking

measures to avoid the

Oil Corp., 859

__________

current law

378 (5th

hazard.

See
___

Teply v. Mobil
_____
_____

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
to

sub-category of turnover duty

warn" prior to turnover,

alert the
_____

which requires the

stevedore-employer to

any latent or

including "any hazards on the ship or

ment" which "are

is the "duty

vessel owner to

concealed defect

with respect to its equip-

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 operations[,]

are

not known
___ _____

by the

stevedore[,]

and would

not be
___

obvious to or anticipated
_______
performance of his

by him if reasonably competent

work."

Scindia, 451 U.S.

_______

at 167

in the

(emphasis

added).

Although Keller concedes that the trial court correctly

quoted

verbatim from the Scindia exegesis

________
_______

turnover duties,

Keller, No.
______

relating to these two

81-549-SD, slip

op. at 10-11,

he

argues that the court focused its factual inquiry exclusively

___________

on

14
14

whether

the defendant

duty of intervention.
agree.
the

vessel owner
See Brief
___

Though neither the

Scindia Court, used

_______

litigation
issue

district court, nor

We cannot

for that matter

duty," the district

the two issues material to

the perti-

(i) "[c]entral to the issue of legal fault in this

is whether

was causally

standards" and

a "continuing"

for Appellant at 27.

the term "turnover

court focused directly on

nent inquiry:

owed Keller

the [original

defective," in

other evidence

design
light of

of the]

ladder at

"applicable safety

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

the

district court

proper duty of care.

clearly

identified

and applied

We turn then to examine its

factual find-

ings.
b.
b.

Factual Findings on "Turnover" Duties

Factual Findings on "Turnover" Duties
_____________________________________
Keller asserts

finding
duties.

that

the

First, he

two challenges

United

expert

is so

conclusory that no

all actions tried upon

court shall

find the facts

breach

court

its turnover

finding

that the

defendant's expert witness on marine

"more persuasive" than the

finding can be gleaned from

("In

not

argues that the pivotal

testimony of Jan Bijhouwer,

design, was

States did

to the district

testimony of plaintiff's
evidentiary basis

the record.

See Fed. R.
___

the facts without a

specially and
_________

Civ. P. 52

jury . . . the

state separately

conclusions of law thereon . . . .") (emphasis added).

15
15

for the

its

The
the

crux of our ad
__

trial court

enable

findings

hoc Rule 52(a)

___

are precise

effective appellate

review.

inquiry is whether

and
See
___

detailed enough

Knapp Shoes, Inc. v.

__________________

Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 1994).
________________________
long

as

the

factual

bases essential

to

to

the

As

court's special

findings are reasonably discernible from the record, the dictates

of Rule
make

52(a) are met.

Id. (noting that the

___

brief, definite,

necessity for

pertinent

findings .

over-elaboration of detail'")

"'judge need only

.

. there

is

no

(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

standards

might

proceeded

to point

consequences any

have upon

"deviations" from

worker safety.

out that

Keller

evidence that the Tank 4 ladder

Further,

had produced

those

the court

no competent

was defective in any way.

These

"special findings" met the Rule 52(a) requirements.

Keller
(e.g., that
____
hazardous

the

next

argues that

ladder

features,

design

if any,

the

trial court's

was "generally

should

have been

safe,"
obvious

findings
or

its

to the

stevedore's employees)
inadmissible
competent

were based upon inherently

evidence,

evidence

or

its

refusal to

entitled to

greater

unreliable or

admit

weight.

or

consider

Whether

the

defendant breached a duty of care is a question of fact, which we

16
16

review only for clear error.

v.

Korea Shipping Corp.,

_____________________

See Fed. R. Civ. P. 52(a); Martinez

___
________
903 F.2d

606,

609 (9th

Cir. 1990);

Miller v. Patton-Tully Transp. Co., 851 F.2d 202, 205

______
_________________________
1988).

Clear

error review

trial court findings

nite and

presupposes appellate

of fact unless we are left

firm conviction

that a

mistake

Holmes Transp., Inc., 983 F.2d at 1129.

_____________________
due trial
DesRosiers
__________

court findings
v. Moran,
_____

deference to

with the "defi-

has been

committed."

Particular deference is

dependent on witness
19 (1st

credibility, see
___

Cir. 1991),

to the

degree that error is seldom considered "clear" unless the

credi-

bility assessments

949 F.2d 15,

(8th Cir.

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
preponderance

of the

905(b), the

plaintiff must prove,

_________

by a

evidence, both

proximate causation

and a

breach of the applicable duty of care.

Shipping Corp., 873
______________

F.2d 1204,

See
___

Bjaranson v. Botelho
_________
_______

1208 (9th Cir.

1989); Biggs
_____

Logicon, Inc., 663 F.2d 52, 53-54 (8th Cir. 1981).

_____________
able negligence under the
"reasonableness" in
substantive

tion

LHWCA depends on the fluid

care.

vessel-owner conduct
See Scindia, 451
___ _______

905(b) did not specify the acts

that would

Since action-

concept of

the circumstances, the LHWCA provides little

guidance on

various duties of

v.

constitute

negligence. .

resolved through the 'application

17
17

violative of

the

U.S. at 165-66 ("Sec-

or omissions of the vessel

. .

Much was

left to

be

of accepted principles of tort

law and
ted).

the ordinary
Generally

process of litigation.'")

speaking,

the fact-finder

"reasonableness" of the vessel

(citation omit-

should assess

the

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."

________
sis

Johnson, 613 F.2d at 348 (empha_______

added); see also Miller, 851 F.2d

___ ____ ______

though

at 205 (same).

"proof of [the

vessel owner's] adherence

or custom

dispositive on
___________

practice

gence," Martinez,
________

is not

And, even

to an industry

the issue

of negli-

903 F.2d at 610

(citations omitted) (emphasis

added), often the plaintiff's case

will "depend on the existence

______

of

statutes, regulations

for repairs of

and customs

allocating responsibility

defective equipment [between the owner and steve-

dore]," since these sources are probative of the risks a "reasonably competent" stevedore should
Benedict on Admiralty
_____________________
e.g., Martinez, 903
____ ________
judgment,
a

anticipate and manage.

__________

94, at 5-25 (emphasis added);

F.2d at

609 (noting, on

review of

See
___

1A

see also,
___ ____

summary

that "[vessel owner] . . . submitted the affidavits of

licensed ship master and

the platform is standard in

a naval architect,

who claimed that

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
gist of

"applicable" industry standards.

Bijhouwer's testimony

the Tank 4

was that he

The

personally inspected

ladder after Keller's fall, measured

its dimensions,

18
18

and climbed out of Tank 4 several times by pulling himself

the lower railing with the

aid of the metal grab bar

the 'tween deck floor.

In twenty-four years

or, approximately five

to ten percent

had encountered were equipped with

similar to Tank
climb,

and

4.

as a marine survey-

Bijhouwer

ladder-railing configurations

He

safety standards governing "shipboard

land-based installation":

mounted in

of the vessels

Bijhouwer found the Tank

"perfectly safe."

under
_____

4 ladder "easy" to

consulted two

fixed-ladder

installation as opposed to

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; standard 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 "blindfolded."
Keller characterizes this testimony as patently incredible, 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.

points
Keller's

out that
fall,

the
for

ASTM was
the

promulgated several

purpose

of facilitating

He

years after

inter-vessel

exchangeability of component parts, rather than promoting

concerns.
required

And, because Bijhouwer

an

unobstructed

conceded at trial

gap in
___

the

Tank

safety

that MARAD

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

does not explain why

be wholly
______

statutory or
standard.

See
___

less likely

is

changed
rendered

infra note 5.
_____
that ASTM

as a

so dramatically

with a particular

Rather, "applicability"

had some tendency to make it

and Simplex would
___

minimum safety

no evidence

wholly

ASTM would

In this context, "applicability" connotes no

that the defendant

ASTM norm

Keller

had been promulgated

regulatory compulsion to conform

_______

mere relevance:

There

a maritime safety standard like

"inapplicable" simply because it

after the accident.

the

withstand scrutiny.

that

general

between

immaterial as

standard for

an

1983

indicator

more or

have regarded

the industry.

maritime safety

1979 and

connotes

standards

that ASTM

of 1979

was

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
___
exclusively on post-1979 data.
contention

that

testimony

that

(including
_________
were

of

component

though the

was

merely

parts,

maritime

to facilitate

we

note

standards

the

Bijhouwer's

he relied

upon

ASTM) might not be exclusively safety-oriented, there

____
___________

"safety-related aspects

dards."

Further, in response to Keller's

ASTM's purpose

interchangeability

based

to all
___

of [these

industry] stan-

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
er, it was but
on

"inapplicable," howev-

one of two independent maritime

___
___ ___________

which Bijhouwer relied.

safety standards

Keller therefore would

have had to

hobble both the ASTM and the MARAD standards in order to prevail.
____
___ ___ _____
Viewed as
the

an enumeration

industry,

MARAD is

of minimum safety
_______
conspicuously

recommendations for

silent
______

on many

matters

Keller considered pertinent to

of care, including
left in

any unequivocal recommendation that

safety railings which extend

ladder.
(or

the defendant vessel owner's duty

Bijhouwer testified that

removable

railings)

only

a gap be

around the top of

a fixed

MARAD recommended such

as needed

to

facilitate

loading via the deck on which the railings are located.

___ ___ ____ __ _____ ___ ________ ___ _______

a gap

cargo

Here, of

course, the cable was not loaded into Tank 4 across the HUDDELL's
______
'tween
main

deck where the safety railings were located, but from the
deck, down

through an

upper hatch

further testified that MARAD

and into

Tank 4.

He

recommends such an "access opening"

21
21

only

in

"deck"

railings

reasons that this would

have
refers

been left in

near ladders,

the Tank 4 railings:

weather deck of the vessel, not

deck; and

two

plausible

not indicate that a complete

________

exclusively to railings on

the 'tween

citing

(2) the

might reasonably mean any

gap should

(1) the MARAD provision

the periphery of

the main or

to railings on lower decks, like

undefined
_________

term "access

aperture through which a

opening"

person could

exit safely, such as the 27-inch space under the lower railing on
_____
Tank 4.

Bijhouwer's

testimony likewise

regulations, which presumably

the stevedore to
See 33
___

U.S.C.

provide its employees with

941.

by OSHA

impose a heightened obligation

__________

Yet even

on

a "safe" workplace.

the OSHA standards do

courage the ladder configuration

1918.25.

was bolstered

found on Tank 4.

not dis-

See 29 C.F.R.
___

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, however, 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
______________________________________
at 453

9:5,

(4th ed. 1990) (quoting Cia Maritima Del Nervon v. James

________________________
_____

J. Flanagan Shipping Corp., 308

___________________________

F.2d 120, 125

22
22

(5th Cir.

1962)

(emphasis

added));

Netumar, 586 F.
_______

McGann
______

v. Compania de Navegacio Maritima

_________________________________

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

conceded that he never consulted the ASTM

witness,

standards, and neither

referenced nor analyzed MARAD before surveying the Tank 4 ladder.

We

think it clear that this effort

ticularly
_________

fell well short of the "par____

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
based
_____

safety

intended

for

standards, or
applications

at

Dissell relied on three land_____

least on

distinctively

Department of Defense Military

safety

standards not

maritime

in

nature:

Standard Human Engineering Design

Criteria for Military Systems, Equipment and Facilities, MIL-STD1472

(1970);

Standard

American

National

Safety Code for Fixed

Standards

Institute's

Ladders (1956 &

(ANSI)

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

constraints on working maritime vessels.

marks undoubtedly set
the MARAD model,
inquires

relatively "safer," but

__________

Simplex could

vessel owner would consign

based safety

The van Dissell bench-

more stringent safety specifications

and thus were

only whether

weight

have anticipated
___________

Scindia
_______

that the

a vessel with these heightened

specifications.

By contrast, Bijhouwer

than

land-

testified

that

shipyards commonly
________

consult
_______

standards, such

as MARAD,
_____

in

designing and constructing merchant vessels, rather than the more

______ ____
generalized

military

specifications

further, that he had encountered

in at

least five to ten

like

MIL-STD-1472;

and,

the Tank 4 ladder configuration

percent of the merchant

vessels he had

surveyed.
Second, Keller attacks, as internally
inherently implausible, the Bijhouwer
space

beneath the
_______

adequate "access
fied on
inches

lower safety

beneath the

opening"

for

testimony that the 27-inch

railing on

Tank 4

opening" according to MARAD.

deposition that

a minimum

lower

4.

would
At trial,

conceded that the grab bar, which

afforded an

Bijhouwer testi-

vertical gap

railing

exiting Tank

inconsistent and

be a

of twenty-five
"safe"

however,

"access

Bijhouwer

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

actual clearance of 22 7/8 inches

that

Bijhouwer nonetheless stated

the grab bar posed no hazardous interference.

that there

would remain

at least a

24
24

indicating an

He explained

25-inch clearance

directly
________

beneath the lower railing where it passed over the six-inch ledge
_______
___ ________ _____
of the tank, and
__ ___ ____
date the
onto

height of the climber's

the tank

attain

that this clearance was needed only to accommo-

ledge.6

maximum
_______

head/shoulders to
out

In

vertical

body as he placed

that

position, the

posture

knee), at which

climber

(measured

from

point his body

would

stooped

would flatten

to less than twenty-five inches as he pulled himself forward

_______

and through the narrower opening between

_______
and

his knee up

the

lower railing.7

movements as
longshore

While Keller

dangerously acrobatic,

workers are

the top of the grab bar

called upon

characterizes

it is well
to cope

recognized that

with uncomfortable,

cramped positions in the close confines of a vessel.

Bjaranson,
_________

these

See,
___

e.g.,
____

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 Bijhouwer 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

responded that "[y]ou can feel the coaming."
____

simply

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 accident.
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 clearance 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).

lower railing served both
protect

utilitarian purpose, since

with the option to spool

"the

(i) a safety function, since

an exiting climber from falling

and (ii) a
___

level.

Further, Bijhouwer testified that the

usefulness to
__________

the

backward into the tank,

it would provide

wire into Tank 4 above the

_____

See Johnson, 613 F.2d

___ _______

it would

Simplex

'tween deck

at 348 (trier of fact may consider

[vessel] of

the [allegedly]

dangerous

condition")
("The

(emphasis added); see

___

court

equipment
_________

found that

the toolbox

for the barge and

was

F.2d at 205

a necessary
_________

that it was

keep it out of the way of the

larly,

also Miller, 851

____ ______

piece of
_____ __

situated reasonably to

workers on the barge. . . .

Simi-

the court found that whatever hazard was presented by the

counterweight was
keeping

the

justified by

toolbox

lid

its important safety

_________ ______

from

snapping

shut

purpose of
_______

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

859 F.2d at

378.

"unavoidably" hazardous

ladder.

See Teply,
___ _____

Thus,

been the

only "applicable" industry standard

even if MARAD had

on which Bijhouwer

could rely, it afforded sufficient support for the district court

finding
turnover

that

the

duty of

defendant
safe

vessel owner

condition, on

should have "anticipated" and

the

had

discharged

ground that

its

Simplex

managed the equipment as designed,

whatever its inherent, but avoidable, risks.

___ _________
26
26

Keller further

contends that the trial

finding that any potential

ladder were

"obvious."

that it would be

court erred in

risks attending the use of the Tank 4

He

relies on (i)

Bijhouwer's testimony

"reckless" for Simplex employees to

exit Tank 4 by passing between

attempt to

the two safety railings or "over"

the top railing, and (ii) evidence that Simplex employees continued to use both these methods after turnover.
this latent
duty

design "defect"

independent turnover

that the vessel owner warn Simplex or its longshore workers

____

of the hidden danger.

First,
Bijhouwer's

Bijhouwer's

This contention, too, is flawed.

Keller

testimony

safety standards, the

have

generated the

Keller argues that

incorrectly
that

MARAD

assumes
and

ASTM

trial court likewise

expert opinion (not

___

been reckless to utilize

based on

that

by adopting

were "applicable"

necessarily credited
MARAD) that

the two other

it would

methods of egress.

On the contrary, however, the court did not adopt that portion of
the Bijhouwer testimony but
had

that Keller

proffered no evidence of any design defect whatsoever in the

___
__________

Tank 4 ladder; for

on

went on to note instead

the

alternate

ladder when

example, that any accident had

___
persons other

methods under

than

ever occurred

Keller used

substantially similar

these two

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
this type

1571 ("[N]o other accidents or complaints concerning

of ladder have been reported . . . ."); accord Pittman

______ _______

v. Littlefield, 438
___________
other

F.2d 659,

accidents under

662 (1st Cir.

substantially similar

1971) (absence
conditions

of

may be

probative of "safe" condition) (applying New Hampshire law).

Second,

even if

Bijhouwer's assessment
methods of

the

district court

of the risks attending

egress, Bijhouwer never intimated

had agreed

with

the two alternate

that those methods

posed

hazards not readily foreseeable by

U.S. at 167

(noting that

duty to warn

Simplex.

Scindia, 451
_______

exists only if

"defect"

"would not be obvious to or anticipated by [stevedore] if reasonably competent in

design

defect

the performance

(two

of his work").

fixed railings)

was

Unlike a hairline fracture in the rung of a

which might

in

The

alleged

no sense

latent.

ladder, for example,

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,
Tank

unless instructed

4 in any of three ways.

"under"

otherwise, might

attempt

If Simplex had deemed Bijhouwer's

method the only "safe" one, it could have instructed its

employees not to use the two alternate methods.

ered

all

to exit

three

methods "unsafe,"

it

could

Or if it considhave removed

the

railings between the stanchions at the top of the ladder.

28
28

Relying on the
to

the

night of

the

fact that he was never

accident,

Keller wrongly

in Tank 4 prior
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
_______
token, if the

to notice.

district court correctly

longshore workers
_______
such

be expected

defects,

found that even

reasonably could be expected

it surely

follows

that

same

Simplex

to recognize any

their more

stevedore-employer should have discovered the

course

By the

experienced

defects during the

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
Bjaranson
his
___

the condition may

at night, the fact

that the condition

employer eliminated whatever

________

[the vessel owner] to

not have been

obvious to

was obvious to
__

duty there may

have been upon

warn the individual employees.") (emphasis

added).

Next, Keller contends that the district court improperly

considered his blood-alcohol level

dent,

since the

doctrine of

permit contributory
but only

to abate

pure comparative

negligence to
damages.

Benedict on Admiralty
_____________________

56,

at the time

fault

defeat Keller's
______

See Johnson, 613

___ _______
at 3-33.

of the acci-

would not

LHWCA claim,

F.2d at

First, the district

347; 1A

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
___ ____
would

of the ship
__ ___ ____

not

serve

necessarily

recovery.")

(emphasis

comparative

fault

stevedore

may

owner, the
_____

to totally

added).

doctrine

defend by

intoxication of Keller

Second,

for LHWCA

proving

that

ble

disqualify

him

under

analogous

the

compensation
____________

from

awards,
______

the longshore

injuries were caused "solely" by his intoxication, cf. 33

___
903(c).

. .

worker's

U.S.C.

While the longshore worker initially enjoys a rebutta-

presumption against such a finding, id.

___

dore's defense is not

unprovable.

920(c), the steve-

See, e.g., Walker v. Univer___ ____ ______

_______

sal Terminal & Stevedoring Corp.,

__________________________________
1981)

(finding

903(c) intoxication

noting that the

once stevedore

645 F.2d

170, 173

defense established,

rebuttable presumption "falls

proffers

(3d Cir.

out of the

"substantial evidence"

that

and

case"

longshore

worker's intoxication was sole cause of injury or death).

Similarly, in a section
may assess
where the
fect"8

the quality of

the vessel owner's

longshore worker failed

and where

905(b) action, the trial court

the vessel

rebuttal evidence

to demonstrate a

owner has

vessel "de-

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 constituted 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 directly upon

(1)

its observations concerning Keller's

the absence of persuasive

__________

failures of proof:

expert testimony that

______ _________

the Tank 4

ladder

design was

so inferior

that the defendant vessel

to anticipated

safety standards

owner could not entrust the

equipment

to

the stevedore's able charge; and (ii) the absence of evidence

of

other accidents

conditions.

In

on

the ladder

this context,

we interpret

observations as

an acknowledgment

failed to carry

his burden of proof

evidence
earlier
after
owner.

of possible

causation

under substantially

similar

these trial

not only that

Keller utterly

but that the only

____

(i.e., Keller's
____

court

credible

heavy drinking

in the evening and his high blood-alcohol level one hour

the fall) in
__

no respect
__ _______

implicated the
__________

defendant vessel

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
clear error.

that the district court committed

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

Nonexpert-opinion testimony is permitted

prior to

the fall.

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 fact in issue."

Motors Corp., 916
____________
ruled that the
first

Fed. R. Evid. 701.

the determination of

See
___

Swajian v. General
_______
_______

F.2d 31, 36 (1st Cir. 1990).

proffered deposition testimony

The trial court

did not meet

the

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,

___ ______________
_____

Cir. 1989).

We

find no abuse

opinion necessarily

of discretion.

depended upon

a forbidden Rule

ence," because she (i) neither saw Keller strike

railing, (ii)
which

First,

156 (1st

Rossley's

701 "infer-

his head on the

nor testified to any other sensory perception from

___

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
discretion
before
______

car

Cf. Swajian, 916 F.2d

___ _______

at 36 (finding clear abuse of

in allowing lay opinion that wheel fell off rear axle

flipped over,

based

observation that he first

exclusively

on the

witness's

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
out or
with

progress).

to try to regain

excluding

Rossley

would

Keller's failure to

hold of the ladder

sudden disorientation

witness

Although

have

or

could be consistent

even unconsciousness,
had no

possible causes other than

nonspeculative
a blow to

intoxication, fatigue and heavy exertion).

call

as a

lay

basis

for

the head (e.g.,

____

Second, and perhaps more

trial,
_____

in which

admissibility
fact.
the

the trial

importantly, this was a bench

_____

judge would

not only

determine the

of the evidence but serve as the ultimate trier of

The Rule 701 admissibility determination turns on

whether

inference drawn by the nonexpert lay witness would be "help_____

ful to
___

. . .

the determination

having considered

the entire
______

of the fact

proffer, the trial

_______

the Rossley opinion testimony because

ciently reliable
was based.

in issue."

Thus,

judge excluded

the court found no

suffi-

basis for the speculative inference on which it

Not only do we agree, but nothing would have required

________

the trial judge, as trier of fact, to credit

had it been admitted in
no particular

the Rossley opinion

evidence, especially since she possessed

skill or experience which would

trial court's fact-finding insight.

have assisted the

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 con33
33

stituted an "unreasonably" dangerous

condition.

Keller suggests

that this evidence was admissible notwithstanding Rule 407, which

requires

the exclusion

defendant

of

subsequent remedial

only, not by nondefendants

repairs by

like Simplex.

the

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

marginally probative of
Evidence
________

remedial measures

prior negligence.

283, at 174-75 (1979).

dant could have capitalized

See
___

are considered

John H. Wigmore,

In this case, moreover, defen-

on the very same evidence

strate that Simplex was expected to make such

to demon-

structural altera-

tions to the HUDDELL without first consulting defendant, and that

defendant was entitled to
petent

stevedore,

Simplex deemed them

also
____
duty,

infra note 11.

_____

to

rely on Simplex, as a

take such

necessary for

preemptive

measures

its employees'

Under the Scindia

_______

reasonably com-

provided

safety.

See
___

delineation of turnover

therefore, this evidence was at least a "wash" for Keller,

and actually may

these reasons,
was at most
sion

have helped

defendant more than

_________

we conclude that

harmless.

the exclusion of

See Fed. R. Civ.

___

Keller.

For

this evidence

P. 61 (erroneous exclu-

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.
2.

Post-Turnover Duties of Intervention

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.

_________ _________ ________

(noting that post-turnover duty

See Scindia, 451 U.S. at 172

___ _______

to intervene to remedy unreason-

ably dangerous

condition

may derive

from

vessel owner's contractual obligation

contends

that the

contract

with Simplex

intervene to

court

(1)

from

to the stevedore).

disregarded

required

custom or

his claim

the defendant

effect any safety-related

the

Keller

that

vessel owner

the

to

alterations during cargo

operations; (2) ignored Keller's evidence that it was a customary

or established
during

practice that

the defendant monitor

loading operations; and (3)

erred as a

the HUDDELL

matter of law in

____________________
constitute

an

unreasonably

dangerous

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 admission of "cumulative" evidence). Finally, Exhibit 73
a mock-up
of a portion of the Tank 4 ladder, used for demonstrative purposes 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

condition.

determining

that

"a

custom-generated

inspect

does not transfer to the ship

dangers

reasonably

known

to

duty

to

supervise

and

owner a duty to eradicate

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.
suggested
some

three settings

"continuing" duty

vessel

for

commence.

hazards

Nonetheless, the Supreme Court has

in which an
to

owner might
_____

monitor, supervise,

developing
__________

after

remain under

or inspect

stevedoring

the

operations

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.

dia, 451 U.S. at 167.

___
not met.
the vessel

Second, a

Scin_____

Keller concedes that these conditions were

duty to intervene might attach in

owner were to

acquire actual knowledge

______ _________

the event

that "unsafe

conditions"

had developed
_________

in

the vessel's

appurtenances since

turnover, that the stevedore-employer will not address the unsafe

condition, and
___
developing
stances.

that the stevedore's

hazard was
Id.
___

"obviously

at 174-75.

participation or

decision not to
improvident"

Third,

even absent

in the

circum-

actual control,

knowledge, a post-"turnover" duty

the vessel owner was

remedy the

may arise if

obligated, by contract, statute

or custom,

36
36

to monitor

stevedoring operations

and remedying unsafe conditions.

Keller's
contention

"continuing

of

duty" claim

that the basic structure or

_________

was founded

on the

owner had either actual or

an unreasonably

loading operations.

of detecting

Id. at 172.
___

that the defendant vessel

constructive knowledge
during cable
______

for the purpose

dangerous

However, he does

design of the Tank 4

______

condition

not suggest

ladder changed
_______

after cable loading began (e.g., ladder rungs displaced, loosened

____
or fractured).
continuing
__________

Therefore, the defendant could

duty

of care

to

Keller, since

have breached no

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
to discover

dangerous conditions that develop

_______

tioning winch] within the

are assigned
("[T]he

inspection to exercise reasonable

to

[i.e., a malfunc-

confines of the cargo

the stevedore.");

alleged unsafe condition

Martinez,
________

care

operations that
903 F.2d

at

611

[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

______
____________________________
Cir. 1982)

(noting "different

the

involves

"case

antedate or
________

the

F.2d 1243, 1246 (5th

situation" than in

vessel's liability

for

Scindia where
_______
hazards

that

are coincident with the commencement of cargo opera-

tions").

37
37

Keller intimates that the

opment" which

would have been

relevant "change" or "devel-

discovered had defendant

alleged continuing duty to monitor and intervene was

met its

the failure

of Simplex cable loaders to use the Tank 4 ladder in the intended

manner.
that
not

Thus, Keller would

interpret the district court

"a custom-generated duty

transfer to

the

ship owner

reasonably known to and

to supervise and
a

duty to

ruling

inspect does

eradicate

managed by the stevedore"

dangers

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

the "over" and "between" methods

to

of egress) becomes "obvious" to

the stevedore.
We cannot
already noted,

we

credited evidence
4 were not

discern no

indication that

First, as

the trial

court

that the two alternate methods of exiting Tank

reasonably safe.

had found these

vessel

subscribe to Keller's reasoning.

Second, even if

the district court

other methods of egress "unsafe,"

owner could

rely

on Simplex

to

initially the
_________

manage such

"obvious"

defects, unless and until it appeared that Simplex's decision not

to

take

remedial measures

"obviously improvident"
ed, however, that

(warnings

or

railing removal)

under the circumstances.

was

Keller conced-

Simplex, which plainly had actual or construc-

tive notice as to how its longshore workers were exiting Tank

never
_____

received an employee complaint about the Tank 4 ladder and

that no accident
__
after

4,

ever occurred
____

the Keller incident.

on the ladder

Thus, evidence

either before

or

presented by Keller

38
38

did not begin

to establish defendant's

alleged "hazard" on the

part of the defendant vessel

alone any obvious improvidence on

same

actual knowledge of

the part of Simplex.

the

owner, let
For

the

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

stevedore under the LHWCA, and

ings, we are left

incumbent upon a

the supportable trial court find-

with nothing approaching a "definite

and firm

conviction

that a mistake has

Inc., 983 F.2d at 1129.

____
the

been committed."

Holmes Transp.,
_______________

Once the trier of fact

determined that

Tank 4 ladder was "safe," its design compatible with "appli-

cable"

maritime

safety

standards, and

any

sufficiently "obvious" to Simplex longshore

potential

hazards

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"
care in

supervising its workers

avoidance
during
have

stevedore, to act with reasonable

of

any such

cargo loading
been averted

by

in their

"obvious"
operations.
Simplex in

interaction with

hazards on

board

Any relevant
various

and

the vessel

"hazard" could

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 judgment is affirmed.
________________________
own costs.
own costs.
_________

The parties shall bear their

The parties shall bear their
____________________________

40
40