UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1136
STEVE V. B. KELLER,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Christopher Cole, with whom Michael J. Donahue, Donahue,
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McCaffrey, Tucker & Ciandella, David S. Brown, and Sheehan, Phinney,
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Bass & Green, were on brief for appellant.
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Gretchen Leah Witt, Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for appellee.
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October 19, 1994
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CYR, Circuit Judge. Plaintiff Steven V. B. Keller
CYR, Circuit Judge.
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appeals from a belated judgment dismissing his Longshore and
Harbor Workers Compensation Act suit, see 33 U.S.C. 901-950,
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905(b) (1993) (LHWCA), to recover damages for injuries sus-
tained in a fall on board a maritime vessel owned by defendant-
appellee United States of America. As appellant has not demon-
strated nor careful scrutiny disclosed that the unprece-
dented decision-making delay in this case rendered the district
court's findings unreliable, we affirm the judgment.
I
I
BACKGROUND
BACKGROUND
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In 1978, the United States Navy converted the U.S.S.
ARTHUR M. HUDDELL, a World War II Liberty Ship, into a non-
motorized barge for storing and transporting maritime cable
purchased by the Navy from Simplex Wire and Cable Co. The
retrofitted HUDDELL was towed to Simplex's facility at Newington,
New Hampshire, for cable loading in May 1979, where it remained
moored for two years.
The cargo hold had been adapted to house several round
tanks, recessed sixteen feet into the 'tween deck. Simplex hired
temporary employees known as cable loaders to descend into
these tanks from the 'tween deck for the purpose of winding the
incoming "wet" cable in concentric layers onto a spool. During
the HUDDELL's retrofitting, the Navy installed a nonremovable
metal barrier around Tank 4 to prevent workers on the 'tween deck
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2
from falling into the tank. The barrier included two uninter-
rupted safety railings located at the top of an access ladder
attached to the interior wall of the tank to permit access to and
from the tank floor. In order to exit the tank, a cable loader
would climb to the top rungs of the ladder, at which point three
options were available for getting from the tank onto the 'tween
deck floor: (1) holding onto a "grab bar," which was attached to
the 'tween deck floor and located six inches from the outside
edge of the tank, then crawling forward and passing under the
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lower railing and between the vertical stanchions supporting the
two railings; (2) stepping in a crouched position between the
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lower and upper railings of the barrier; or (3) climbing over the
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top railing located approximately five feet above the 'tween deck
floor.
At the time Simplex hired Keller as a cable loader, he
was a nonmatriculating sophomore at the University of New
Hampshire. On the night of November 4, 1979, Keller went to a
bar, where he and his friends drank approximately 120-160 ounces
(or two six-packs) of beer between 10:00 p.m. and 11:20 p.m.
Keller reported for work at about 11:30 p.m., and was assigned to
Tank 4 for the first time. He and several coworkers climbed down
the ladder from the 'tween deck into Tank 4 without incident,
where they loaded cable until 2:00 a.m.
When it came time for a work break, Keller climbed to
the top of the ladder, and, according to coworker Rhonda Rossley,
grabbed the lower safety railing with his left hand and placed
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3
3
his left foot on one of the two top rungs of the ladder. Then,
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as he began to raise his right leg, he fell backward, neither
attempting to regain his purchase nor crying out, and plummeted
to the tank floor sixteen feet below, landing on his head. When
a Simplex foreman administered first aid, he detected the odor of
alcohol. A blood-alcohol test taken at 3:00 a.m., some three and
one-half hours after Keller had reported for work, revealed a .14
blood-alcohol level, well above the .10 prima facie blood-alcohol
level for demonstrating that a motor vehicle operator is under
the influence. See N.H. Rev. Stat. Ann. 262.A-63 (1963)
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(amended 1994, lowering limit to .08). Since the fall, Keller
has remained amnesiac as to all events surrounding the accident.
Following a seven-day bench trial on Keller's claims
against the United States for negligently installing "unsafe"
lighting and railings and an "unsafe" ladder in Tank 4, and for
failing to warn Simplex workers of the potential danger, see 33
___
U.S.C. 905(b), the district court ultimately awarded judgment
to the United States. See Keller v. United States, No. 81-549-SD
___ ______ _____________
(D.N.H. Dec. 30, 1993).1
II
II
DISCUSSION
DISCUSSION
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Three principal issues must be addressed. First, did
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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.
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4
the eight-year lapse between the bench trial and entry of final
judgment deprive the trial court findings of the customary
deference on appeal, or violate Keller's constitutional rights to
access to the courts and due process, see generally U.S. Const.
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amends. I, V ? Second, did the district court make clearly
erroneous factual findings, or fail to make required findings,
see Fed. R. Civ. P. 52(a), regarding the alleged breach of the
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vessel owner's "turnover" duties of care? Third, did the dis-
trict court misdefine a vessel owner's "continuing" duty to
inspect or supervise cargo loading operations for developing
hazards?
A. The Decision-making Delay
A. The Decision-making Delay
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First, Keller claims that an unprecedented eight-year
delay between trial and the entry of judgment, coupled with the
trial judge's failure to refresh his recollection through re-
course to a complete trial transcript prior to making findings of
fact, resulted in a violation of his constitutional right to
"access to the courts" and to due process, see U.S. Const.
___
amends. I, V; Ad Hoc Comm. on Judicial Admin. v. Massachusetts,
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488 F.2d 1241, 1244 (1st Cir. 1973) (noting that pretrial delay
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might violate constitutional rights if a civil litigant is
"denied for too long his day in court"), cert. denied, 416 U.S.
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986 (1974), or in a violation which warrants withholding the
customary appellate deference accorded trial court findings. Cf.
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Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 787 (1st Cir. 1990)
__________ ________________
(excusing two-year delay); Fernberg v. T.F. Boyle Transp., Inc.,
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5
5
889 F.2d 1205, 1209 (1st Cir. 1989) (excusing two and one-half
year delay). Keller attributes the purported generality in the
district court findings, see infra Section II.B, to this extended
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decision-making delay, and implicitly relies on a conclusive
presumption that the court was unable to make more complete and
detailed findings as it could not recall the evidence presented
at trial almost eight years earlier.
Keller concedes that neither Chamberlin nor Fernberg
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concluded that prolonged decision-making delay, per se, requires
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vacatur. Nor has he cited authority for a per se rule fixing an
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outer limit on decision-making delay. Cf. Ad Hoc Comm., 488 F.2d
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at 1244 (rejecting per se rule under Federal Constitution for
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bounding decision-making delay in state court civil cases); cf.
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also, Los Angeles County Bar Ass'n v. March Fong Eu, 979 F.2d
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697, 705-06 (9th Cir. 1992) (conducting ad hoc inquiry to deter-
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mine whether pretrial delay "exceed[ed] constitutional bound-
aries").
There are sound reasons for abjuring a per se rule even
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in cases involving plainly excessive delay. In the first place,
ad hoc appellate scrutiny is indispensable to the core deter-
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mination whether delay rendered the decision unreliable. Second-
ly, it is highly doubtful that direct appellate review affords
"an effective means of enforcing district court timeliness." See
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Phonetele, Inc. v. American Tel. & Tel. Co., 889 F.2d 224, 232
_______________ _________________________
(9th Cir. 1989) (delay approximating four years), cert. denied,
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112 S. Ct. 1283 (1992). Thirdly, remands for reconsideration or
6
6
retrial yield yet further delays, exacerbating the burdens on
litigants. For these reasons, and notwithstanding our parallel
supervisory responsibility, see, e.g., 28 U.S.C. 1651 (mandamus
___ ____
jurisdiction); Petition of Henneman, 137 F.2d 627, 630 (1st Cir.
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1943), we consider it critically important that appellate atten-
tion remain focused on ensuring that trial court findings,
despite inordinate decision-making delay, not be squandered
unless their reliability has been undermined. We therefore opt
for careful de novo scrutiny of the entire record with a view to
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whether the prolonged delay in reaching a decision rendered the
trial court's findings of fact unreliable to the degree that
vacation of its judgment is warranted despite the admittedly
severe impediments to reliable fact-finding in the event of a
remand for new trial. Cf. Barker v. Wingo, 407 U.S. 514, 532
___ ______ _____
(1972) (long pretrial delays threaten to impair criminal defense,
lest witnesses die, disappear, or suffer memory loss or distor-
tion).
Notwithstanding the eight-year interval between trial
and judgment, for which we have been unable to glean adequate
explanation, neither Keller nor the record on appeal suggests
that the district court did not perform its decision-making
responsibility with care. As Keller's several requests to
expedite the decisionmaking process acknowledge, the district
court was in no sense indifferent to its responsibility to render
a decision but encountered extraordinary docket pressures at the
same time it was required to give precedence to its criminal
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7
caseload. See Speedy Trial Act, 18 U.S.C. 3161 (1993).
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Nor would we well serve the interests of justice, or
the integrity of the decision-making process, were we to presume
that the absence of a complete trial transcript rendered the
district court incapable of determining matters relating to
witness demeanor and credibility, or to recollect or reconstruct
trial testimony, through other reliable means (viz., trial notes,
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voluminous trial exhibits). See Keller, No. 81-549-SD, slip op.
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at 16 ("The court in the course of rendering its decision has
reviewed all of the exhibits . . . ."). After all, the responsi-
bility incumbent on an appellant to substantiate a challenge to
the sufficiency of trial court findings is not met merely with
conclusory allegations that the trier of fact could not have
recalled or reconstructed the evidence without a complete trial
transcript. Moreover, this case does not require us to speculate
as to the reliability of the trial judge's findings, since a
complete trial transcript is available for the purpose. Thus, as
regards the claim that the trial judge's findings themselves
evince prejudice from the extended decision-making delay, we test
Keller's thesis as in any other case, by inquiring whether the
findings were infected with "clear error" based on our own
painstaking scrutiny of the entire trial record, including a
complete trial transcript. See Interstate Commerce Comm'n v.
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Holmes Transp., Inc., 983 F.2d 1122, 1129 (1st Cir. 1993) (noting
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that appellate court must defer to trial court fact-finding
unless, after reviewing entire record, it is left with the
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8
"definite and firm conviction that a mistake has been commit-
ted").
B. The Merits
B. The Merits
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The district court made seven findings central to the
merits-related challenges advanced on appeal:
(1) Keller was a "longshore worker" to whom defendant
owed a duty of "ordinary care," under LHWCA sec-
tion 905(b),2 to provide a vessel in such condi-
tion that "an expert and experienced stevedore
[would] be able to exercise reasonable care to
carry on its cargo operations with reasonable
safety," and a duty to warn the stevedore of any
latent safety defects on the vessel not reasonably
discoverable by an "expert and experienced" steve-
dore, Keller, No. 81-549-SD, slip op. at 9-10
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(quoting Scindia Steam Navigation Co. v. de los
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Santos, 451 U.S. 156, 166-67 (1981));
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(2) Defendant's expert witness, Jan Bijhouwer, relying
on "applicable" maritime safety standards in for-
mulating his opinion that the HUDDELL's ladder
design was "safe," proved "more persuasive" than
plaintiff's competing expert, id. at 13;
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(3) No eyewitness observed the precipitating cause of
the fall (e.g., whether Keller hit his head on a
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safety rail), id. at 11-12;
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2Section 905(b) provides in pertinent part:
In the event of injury to a person covered
under this Act caused by the negligence of a
vessel, then such person . . . may bring an
action against such vessel as a third party .
. . , and the employer shall not be liable to
the vessel for such damages directly or in-
directly and any agreements or warranties to
the contrary shall be void. . . . The liabil-
ity of the vessel under this subsection shall
not be based upon the warranty of seaworthi-
ness or a breach thereof at the time the
injury occurred.
33 U.S.C. 905(b).
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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
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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,
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id. at 13;
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(5) Keller's blood alcohol level of .14, see supra at
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p. 4, might have been a "significant [causal]
factor" in the accident, Keller, No. 81-549-SD,
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slip op. at 15;
(6) If any design deviation constituted a potential
"hazard," such hazard was obvious (i.e., not la-
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tent), and could be "anticipate[d]" by a stevedore
"if reasonably competent in the performance of his
work," id. at 13-14; and
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(7) Even if custom had required that defendant place a
representative aboard the HUDDELL to monitor cargo
loading, "a custom-generated duty to supervise and
inspect does not transfer to the ship owner a duty
to eradicate dangers reasonably known to and man-
aged by the stevedore," id. at 14.
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1. The Vessel Owner's "Turnover" Duties of Care
1. The Vessel Owner's "Turnover" Duties of Care
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a. Applicable Law
a. Applicable Law
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The definition of a vessel owner's duties of care under
LHWCA 905(b) is a matter of law for the district court in the
first instance, see Elberg v. Mobil Oil Corp., 967 F.2d 1146,
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1149 (7th Cir. 1992); Ludwig v. Pan Ocean Shipping Co., 941 F.2d
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849, 850 (9th Cir. 1991), subject to de novo review, see Williams
__ ____ ___ ________
v. Poulos, 11 F.3d 271, 278 (1st Cir. 1993). Keller claims that
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by failing to distinguish between "turnover" and "continuing"
duties, the district court misconstrued the standard of care
incumbent upon a vessel owner under LHWCA 905(b).
As it pertains to Keller and Simplex, in its current
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10
incarnation the LHWCA is a strict liability statute. A longshore
or harbor worker such as Keller, who incurs a work-related
injury, may recover disability and medical compensation from the
stevedore-employer (viz., Simplex) even though the stevedore was
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not at fault. Conversely, an award of compensation under the
LHWCA, such as Keller recovered from Simplex, is the longshore
worker's exclusive remedy against the stevedore-employer. See 33
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U.S.C. 904, 905(a); Williams v. Jones, 11 F.3d 247, 250 n.1
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(1st Cir. 1993).
Until 1972, an injured longshore worker could sue the
vessel owner on two distinct legal theories: negligence and
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breach of the warranty of "seaworthiness." "Unseaworthiness"
could be established more easily than negligence, simply by
showing that some condition or appurtenance on board the vessel
at the time of the accident was unreasonably hazardous, even if
the stevedore-employer was the sole cause of the hazard. See
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Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 (1946); Ellen M.
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Flynn & Dale S. Cooper, 1A Benedict on Admiralty 91, at 5-2 to
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5-4 (7th ed. 1993) [hereinafter: Benedict on Admiralty]. Vessel
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owners thus became virtual insurers of the on-board safety of
longshore workers. Although the only legal recourse available to
the nonnegligent vessel owner was an indemnification claim
against the stevedore-employer, even that remedy was unavailable
unless the hazardous condition or appurtenance was due to the
stevedore's negligence. In 1972, the LHWCA remedial
scheme underwent dramatic adjustment. Congress greatly increased
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11
the amount of compensation recoverable from the stevedore-employ-
er, repudiated the warranty of "seaworthiness" as a basis for
third-party actions against the vessel owner, required the
injured longshore worker to prove negligence on the part of the
vessel owner, and precluded a negligent vessel owner from obtain-
ing indemnification from the stevedore-employer. See 33 U.S.C.
___
905(b); supra note 2. These changes were designed "to shift more
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of the responsibility for compensating injured longshoremen to
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the party best able to prevent injuries: the stevedore-employer."
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Howlett v. Birkdale Shipping Co., 114 S. Ct. 2057, 2063 (1994)
_______ _____________________
(emphasis added). Consequently, at the present time the duties
of care incumbent upon a vessel owner fall into two broad catego-
ries: (i) so-called "turnover" duties those which are to be
discharged before the owner consigns the vessel to the stevedore
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for cargo loading operations and (ii) so-called "continuing"
duties, such as inspection, supervision or intervention, which
may persist after the stevedore commences cargo operations. See
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Scindia, 451 U.S. at 166-67, 172-76. There are two distinct sub-
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categories of "turnover" duty, depending on whether an unreason-
ably hazardous condition on board the vessel is patent or latent.
(i) The Vessel Owner's "Duty of Safe Condition"
(i) The Vessel Owner's "Duty of Safe Condition"
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First, the vessel owner's "duty of safe condition" is
met if the condition of the vessel when entrusted to the steve-
dore poses no reasonably foreseeable risk to any worker, even
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assuming a complete failure on the part of the stevedore-employer
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12
to monitor the vessel workplace for safety. On the other hand,
because longshoring is particularly dangerous, in many respects
inherently so, see Johnson v. A/S Ivarans Rederi, 613 F.2d 334,
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339 n.5 (1st Cir. 1980), few on-board appurtenances would ever
satisfy such an exacting threshold. Accordingly, the "foresee-
ability" standard to which a vessel owner is held under its "duty
of safe condition" has been relaxed: "ordinary care under the
circumstances" now governs the owner's discharge of its duty to
turn the vessel over "in such condition that an expert and
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experienced stevedoring contractor, mindful of the dangers he
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should expect to encounter, arising from the hazards of the
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ship's service or otherwise, will be able by the exercise of
ordinary care" to conduct cargo operations "with reasonable
safety to persons and property." See Federal Marine Terminals,
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Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18 (1969)
____ _____________________
(emphasis added) (citation omitted).
Unlike the vessel owner, however, the stevedore is
subject to detailed legislative and administrative prescriptions
for affording its workers a "safe" workplace. See, e.g., 33
___ ____
U.S.C. 941 (1993); 29 C.F.R. 1918.1-1918.106, 1918.25
(1993) (implementing regulations for "ladders"); see also Scin-
___ ____ _____
dia, 451 U.S. at 170. Thus, a vessel owner "reasonably" may rely
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on the stevedore-employer's supervision of its own employees in
their interaction with and avoidance of "obvious" or "anticipat-
ed" hazards foreseeably associated with stevedoring on board the
owner's vessel. See, e.g., Polizzi v. M/V Zephros II Monrovia,
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13
13
860 F.2d 147, 149 (5th Cir. 1988); Jupitz v. National Shipping
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Co., 730 F. Supp. 1358, 1362 (D. Md. 1990) (noting that vessel
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owner's duty is "to turn over the cargo area in a reasonably safe
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condition; . . . not to turn over the area completely free of all
hazards") (emphasis added). Conversely, under current law a
vessel owner may be held liable, even for "obvious" or "antici-
pated" hazards, upon a showing that the owner effectively dis-
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abled the stevedore-employer or the longshore worker from taking
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ameliorative measures to avoid the hazard. See Teply v. Mobil
___ _____ _____
Oil Corp., 859 F.2d 375, 378 (5th Cir. 1988); Theriot v. Bay
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Drilling Corp., 783 F.2d 527, 536 (5th Cir. 1986).
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(ii) The Vessel Owner's "Duty to Warn"
(ii) The Vessel Owner's "Duty to Warn"
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The second sub-category of turnover duty is the "duty
to warn" prior to turnover, which requires the vessel owner to
alert the stevedore-employer to any latent or concealed defect
_____
including "any hazards on the ship or with respect to its equip-
ment" which "are known to the vessel [owner] or should be known
_____ ______ __ _____
to it in the exercise of reasonable care" and which "would likely
be encountered by the stevedore in the course of his cargo opera-
tions[,] are not known by the stevedore[,] and would not be
___ _____ ___
obvious to or anticipated by him if reasonably competent in the
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performance of his work." Scindia, 451 U.S. at 167 (emphasis
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added).
Although Keller concedes that the trial court correctly
quoted verbatim from the Scindia exegesis relating to these two
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turnover duties, Keller, No. 81-549-SD, slip op. at 10-11, he
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14
argues that the court focused its factual inquiry exclusively on
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whether the defendant vessel owner owed Keller a "continuing"
duty of intervention. See Brief for Appellant at 27. We cannot
___
agree. Though neither the district court, nor for that matter
the Scindia Court, used the term "turnover duty," the district
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court focused directly on the two issues material to the perti-
nent inquiry: (i) "[c]entral to the issue of legal fault in this
litigation is whether the [original design of the] ladder at
issue was causally defective," in light of "applicable safety
standards" and other evidence proffered by Keller, Keller, No.
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81-549-SD, slip op. at 13, and (ii) whether "the notice given by
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the presence of any such hazard" rendered it obvious, id. at 14.
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Thus, the district court clearly identified and applied the
proper duty of care. We turn then to examine its factual find-
ings.
b. Factual Findings on "Turnover" Duties
b. Factual Findings on "Turnover" Duties
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Keller asserts two challenges to the district court
finding that the United States did not breach its turnover
duties. First, he argues that the pivotal finding that the
testimony of Jan Bijhouwer, defendant's expert witness on marine
design, was "more persuasive" than the testimony of plaintiff's
expert is so conclusory that no evidentiary basis for the
finding can be gleaned from the record. See Fed. R. Civ. P. 52
___
("In all actions tried upon the facts without a jury . . . the
court shall find the facts specially and state separately its
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conclusions of law thereon . . . .") (emphasis added).
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15
The crux of our ad hoc Rule 52(a) inquiry is whether
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the trial court findings are precise and detailed enough to
enable effective appellate review. See Knapp Shoes, Inc. v.
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Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 1994). As
________________________
long as the factual bases essential to the court's special
findings are reasonably discernible from the record, the dictates
of Rule 52(a) are met. Id. (noting that the "'judge need only
___
make brief, definite, pertinent findings . . . there is no
necessity for over-elaboration of detail'") (citation omitted).
Contrary to Keller's contention, the district court did not begin
and end its analysis with the observation that Bijhouwer's
testimony was "more persuasive," but expressed one very important
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rationale for so finding: Bijhouwer was the only expert witness
____
who based his opinion on "applicable [maritime] safety standards"
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and on the possible consequences any "deviations" from those
standards might have upon worker safety. Further, the court
proceeded to point out that Keller had produced no competent
evidence that the Tank 4 ladder was defective in any way. These
"special findings" met the Rule 52(a) requirements.
Keller next argues that the trial court's findings
(e.g., that the ladder design was "generally safe," or its
____
hazardous features, if any, should have been obvious to the
stevedore's employees) were based upon inherently unreliable or
inadmissible evidence, or its refusal to admit or consider
competent evidence entitled to greater weight. Whether the
defendant breached a duty of care is a question of fact, which we
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16
review only for clear error. See Fed. R. Civ. P. 52(a); Martinez
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v. Korea Shipping Corp., 903 F.2d 606, 609 (9th Cir. 1990);
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Miller v. Patton-Tully Transp. Co., 851 F.2d 202, 205 (8th Cir.
______ _________________________
1988). Clear error review presupposes appellate deference to
trial court findings of fact unless we are left with the "defi-
nite and firm conviction that a mistake has been committed."
Holmes Transp., Inc., 983 F.2d at 1129. Particular deference is
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due trial court findings dependent on witness credibility, see
___
DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991), to the
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degree that error is seldom considered "clear" unless the credi-
bility assessments were based on testimony which was inherently
implausible, internally inconsistent, or critically impeached.
See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985);
___ ________ ______________________
Rivera-Gomez v. de Castro, 900 F.2d 1, 4 (1st Cir. 1990).
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Under LHWCA 905(b), the plaintiff must prove, by a
_________
preponderance of the evidence, both proximate causation and a
breach of the applicable duty of care. See Bjaranson v. Botelho
___ _________ _______
Shipping Corp., 873 F.2d 1204, 1208 (9th Cir. 1989); Biggs v.
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Logicon, Inc., 663 F.2d 52, 53-54 (8th Cir. 1981). Since action-
_____________
able negligence under the LHWCA depends on the fluid concept of
"reasonableness" in the circumstances, the LHWCA provides little
substantive guidance on vessel-owner conduct violative of the
various duties of care. See Scindia, 451 U.S. at 165-66 ("Sec-
___ _______
tion 905(b) did not specify the acts or omissions of the vessel
that would constitute negligence. . . . Much was left to be
resolved through the 'application of accepted principles of tort
17
17
law and the ordinary process of litigation.'") (citation omit-
ted). Generally speaking, the fact-finder should assess the
"reasonableness" of the vessel owner's conduct "by balancing the
usefulness to the [vessel] of the [allegedly] dangerous condition
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and the burden involved in curing it against the probability and
______ ___________
severity of the harm it poses." Johnson, 613 F.2d at 348 (empha-
________ _______
sis added); see also Miller, 851 F.2d at 205 (same). And, even
___ ____ ______
though "proof of [the vessel owner's] adherence to an industry
practice or custom is not dispositive on the issue of negli-
___________
gence," Martinez, 903 F.2d at 610 (citations omitted) (emphasis
________
added), often the plaintiff's case will "depend on the existence
______
of statutes, regulations and customs allocating responsibility
for repairs of defective equipment [between the owner and steve-
dore]," since these sources are probative of the risks a "reason-
ably competent" stevedore should anticipate and manage. See 1A
__________ ___
Benedict on Admiralty 94, at 5-25 (emphasis added); see also,
_____________________ ___ ____
e.g., Martinez, 903 F.2d at 609 (noting, on review of summary
____ ________
judgment, that "[vessel owner] . . . submitted the affidavits of
a licensed ship master and a naval architect, who claimed that
the platform is standard in the industry and meets international
requirements").
Keller challenges the cornerstone finding by the
district court: that Bijhouwer's expert opinion was founded on a
"persuasive" appraisal of "applicable" industry standards. The
gist of Bijhouwer's testimony was that he personally inspected
the Tank 4 ladder after Keller's fall, measured its dimensions,
18
18
and climbed out of Tank 4 several times by pulling himself under
_____
the lower railing with the aid of the metal grab bar mounted in
the 'tween deck floor. In twenty-four years as a marine survey-
or, approximately five to ten percent of the vessels Bijhouwer
had encountered were equipped with ladder-railing configurations
similar to Tank 4. Bijhouwer found the Tank 4 ladder "easy" to
climb, and "perfectly safe." He consulted two fixed-ladder
safety standards governing "shipboard installation as opposed to
land-based installation": the Maritime Administration standard
(MARAD) (1965) and the American Society for Testing and Materials
standard (ASTM) (1983). In Bijhouwer's opinion, both standards
confirmed that the Tank 4 ladder-railing design met or surpassed
applicable maritime safety standards.3
Finding no merit in Keller's other challenges to the
district court's credibility determinations,4 we focus on two
____________________
3Minor measurement "deviations" between MARAD-ASTM and Tank
4 included, inter alia: the facial width of ladder rungs (slight-
_____ ____
ly over 14 inches; standard 14 inches); rungs (1-1/2 inches by
1/2 inch; standard 3/4 inch by 3/4 inch); and toe clearance
behind rungs (5 inches at sides, 14 3/4 inches in middle; stan-
dard minimum 5 inches).
4For example, Bijhouwer testified that a person who was
exiting Tank 4 for the first time might be able to do so "blind-
folded." Keller characterizes this testimony as patently in-
credible, especially in view of other testimony that Tank 4 was
"more difficult" to exit than the tanks on other vessels (e.g.,
____
the FURMAN) then moored at Simplex. On redirect, however,
Bijhouwer clarified that the ladder and grab bar combination
installed in Tank 4 was so well designed that, after one trip up,
_____ ___ ____ __
a climber could use it "blindfolded." Bijhouwer's redirect
testimony would enable a reasonable inference that Simplex, once
_______
it became acquainted with the Tank 4 configuration following
turnover, was in no sense disabled from informing its employees
about at least one safe method of exiting the tank. Moreover,
the fact that other witnesses testified that the Tank 4 ladder
19
19
related contentions. First, Keller quarrels with the district
court ruling that ASTM was an "applicable" industry standard. He
points out that the ASTM was promulgated several years after
Keller's fall, for the purpose of facilitating inter-vessel
exchangeability of component parts, rather than promoting safety
concerns. And, because Bijhouwer conceded at trial that MARAD
required an unobstructed gap in the Tank 4 railing, Keller
___
contests the district court ruling that MARAD was an "applicable"
industry standard and disagrees that the Tank 4 ladder substan-
tially conformed with the MARAD design.
These contentions cannot withstand scrutiny. Keller
does not explain why a maritime safety standard like ASTM would
be wholly "inapplicable" simply because it had been promulgated
______
after the accident. In this context, "applicability" connotes no
statutory or regulatory compulsion to conform with a particular
_______
standard. See infra note 5. Rather, "applicability" connotes
___ _____
mere relevance: that ASTM had some tendency to make it more or
less likely that the defendant and Simplex would have regarded
___
the ASTM norm as a minimum safety standard for the industry.
There is no evidence that general maritime safety standards
changed so dramatically between 1979 and 1983 that ASTM was
rendered wholly immaterial as an indicator of 1979 industry
____________________
was "more" difficult to climb did not compel a finding that it
was defective, since (1) these lay witnesses testified to their
personal experiences only, not to safety design; and (2) this
inapposite comparison (i.e., "more difficult" as opposed to "too
____
difficult") would not show that the Tank 4 ladder was "unsafe,"
only that other Navy ships moored at Simplex had "safer" ladders
(i.e., exceeded applicable maritime safety standards).
____
20
20
safety practices, see Fed. R. Evid. 401, nor that ASTM was based
___
exclusively on post-1979 data. Further, in response to Keller's
contention that ASTM's purpose was merely to facilitate the
interchangeability of component parts, we note Bijhouwer's
testimony that though the maritime standards he relied upon
(including ASTM) might not be exclusively safety-oriented, there
_________ ____ ___________
were "safety-related aspects to all of [these industry] stan-
___
dards." Thus, it was not clear error to find that ASTM possessed
some probative value in determining industry safety practices in
1979.
Even if ASTM were deemed wholly "inapplicable," howev-
er, it was but one of two independent maritime safety standards
___ ___ ___________
on which Bijhouwer relied. Keller therefore would have had to
hobble both the ASTM and the MARAD standards in order to prevail.
____ ___ ___ _____
Viewed as an enumeration of minimum safety recommendations for
_______
the industry, MARAD is conspicuously silent on many matters
______
Keller considered pertinent to the defendant vessel owner's duty
of care, including any unequivocal recommendation that a gap be
left in safety railings which extend around the top of a fixed
ladder. Bijhouwer testified that MARAD recommended such a gap
(or removable railings) only as needed to facilitate cargo
loading via the deck on which the railings are located. Here, of
___ ___ ____ __ _____ ___ ________ ___ _______
course, the cable was not loaded into Tank 4 across the HUDDELL's
______
'tween deck where the safety railings were located, but from the
main deck, down through an upper hatch and into Tank 4. He
further testified that MARAD recommends such an "access opening"
21
21
only in "deck" railings near ladders, citing two plausible
reasons that this would not indicate that a complete gap should
________
have been left in the Tank 4 railings: (1) the MARAD provision
refers exclusively to railings on the periphery of the main or
weather deck of the vessel, not to railings on lower decks, like
the 'tween deck; and (2) the undefined term "access opening"
_________
might reasonably mean any aperture through which a person could
exit safely, such as the 27-inch space under the lower railing on
_____
Tank 4. Bijhouwer's testimony likewise was bolstered by OSHA
regulations, which presumably impose a heightened obligation on
__________
the stevedore to provide its employees with a "safe" workplace.
See 33 U.S.C. 941. Yet even the OSHA standards do not dis-
___
courage the ladder configuration found on Tank 4. See 29 C.F.R.
___
1918.25. Thus, Keller failed to weaken Bijhouwer's interpreta-
tion and application of MARAD.
To the extent that the technical aspects of MARAD
invited expert interpretation, the district court was entitled to
rely on Bijhouwer's testimony, especially since Keller tendered
no persuasive counter-interpretation:
Compliance with the customs and practice of
an industry, while relevant and admissible[,]
is not necessarily due care. It may, howev-
er, be evidence of due care and when relied
________
on by the fact finder "his findings will not
be lightly disregarded unless there is a par-
____
ticularly strong showing of the unreasonable-
_________ ______ _______
ness of the customary practice."
1 Martin J. Norris, The Law of Maritime Personal Injuries 9:5,
______________________________________
at 453 (4th ed. 1990) (quoting Cia Maritima Del Nervon v. James
________________________ _____
J. Flanagan Shipping Corp., 308 F.2d 120, 125 (5th Cir. 1962)
___________________________
22
22
(emphasis added)); McGann v. Compania de Navegacio Maritima
______ _________________________________
Netumar, 586 F. Supp. 1568, 1571 (D. Md. 1984) (evidence that
_______
ladder was "typical" or "standard" is probative of vessel owner's
nonnegligent conduct). Van Dissell, Keller's expert witness,
conceded that he never consulted the ASTM standards, and neither
referenced nor analyzed MARAD before surveying the Tank 4 ladder.
We think it clear that this effort fell well short of the "par-
____
ticularly strong showing," see Cia Maritima Del Nervon, 308 F.2d
_________ ______ _______ ___ _______________________
at 125 (emphasis added), needed to demonstrate clear error in the
trial court's decision to credit Bijhouwer's expert recommenda-
tions relating to an "applicable" industry "standard."
Keller concedes that van Dissell relied on three land-
_____
based safety standards, or at least on safety standards not
_____
intended for applications distinctively maritime in nature:
Department of Defense Military Standard Human Engineering Design
Criteria for Military Systems, Equipment and Facilities, MIL-STD-
1472 (1970); American National Standards Institute's (ANSI)
Standard Safety Code for Fixed Ladders (1956 & 1974); and OSHA
Standards for Fixed Ladders, 29 C.F.R. 1910.27 (1975).5 In
general, differentials between land-based and maritime design and
____________________
5Keller did not contend that these OSHA standards directly
________
applied to defendant. Therefore, even a failure to comply with
the OSHA standards would not entitle Keller to claim negligence
per se. And in fact, the OSHA standards were not directly
___ __
applicable to defendant, because (1) they do not pertain to
maritime employment of longshore and harbor workers, cf. 33
___
U.S.C. 941; 29 C.F.R. 1918.1-1918.106; and (2) they regulate
only the obligations of employers, see Martinez, 903 F.2d at 611;
_________ ___ ________
Bandeen v. United Carriers (Panama), Inc., 712 F.2d 1336, 1339-40
_______ ______________________________
(9th Cir. 1983) (same), and defendant was not Keller's employer.
23
23
safety codes are necessitated by the unique spatial and weight
constraints on working maritime vessels. The van Dissell bench-
marks undoubtedly set more stringent safety specifications than
the MARAD model, and thus were relatively "safer," but Scindia
__________ _______
inquires only whether Simplex could have anticipated that the
___________
vessel owner would consign a vessel with these heightened land-
based safety specifications. By contrast, Bijhouwer testified
that shipyards commonly consult standards, such as MARAD, in
________ _______ _____
designing and constructing merchant vessels, rather than the more
______ ____
generalized military specifications like MIL-STD-1472; and,
further, that he had encountered the Tank 4 ladder configuration
in at least five to ten percent of the merchant vessels he had
surveyed.
Second, Keller attacks, as internally inconsistent and
inherently implausible, the Bijhouwer testimony that the 27-inch
space beneath the lower safety railing on Tank 4 afforded an
_______
adequate "access opening" according to MARAD. Bijhouwer testi-
fied on deposition that a minimum vertical gap of twenty-five
inches beneath the lower railing would be a "safe" "access
opening" for exiting Tank 4. At trial, however, Bijhouwer
conceded that the grab bar, which was 4 1/8 inches high, was set
into the 'tween deck floor six inches from the ladder and the rim
of Tank 4. Confronted with this configuration indicating an
actual clearance of 22 7/8 inches Bijhouwer nonetheless stated
that the grab bar posed no hazardous interference. He explained
that there would remain at least a 25-inch clearance directly
________
24
24
beneath the lower railing where it passed over the six-inch ledge
_______ ___ ________ _____
of the tank, and that this clearance was needed only to accommo-
__ ___ ____
date the height of the climber's body as he placed his knee up
onto the tank ledge.6 In that position, the climber would
attain maximum vertical posture (measured from stooped
_______
head/shoulders to knee), at which point his body would flatten
out to less than twenty-five inches as he pulled himself forward
_______
and through the narrower opening between the top of the grab bar
_______
and the lower railing.7 While Keller characterizes these
movements as dangerously acrobatic, it is well recognized that
longshore workers are called upon to cope with uncomfortable,
cramped positions in the close confines of a vessel. See, e.g.,
___ ____
Bjaranson, 873 F.2d at 1208 ("the men, according to the testimo-
_________
ny, could have squeezed around the leg of the crane" to avoid the
________
____________________
6Keller argues that the method of egress endorsed by Bij-
houwer was unmanageable because the climber would have to place
his knee on a narrow coaming that raised 7/8 inches at the edge
of the tank, which Bijhouwer conceded would "cut" into the
climber's knee. In fact, however, Bijhouwer testified that a
climber could place his knee "momentarily" between the coaming
_______
and the grab bar, not on top of the coaming. When asked if the
___ __ ___ __ ___ _______
coaming would then "dig[] into your knee," Bijhouwer simply
responded that "[y]ou can feel the coaming."
____
7Keller likewise relies on Bijhouwer's admission that at the
time he first formulated his opinion that the ladder design was
safe, he had not considered the actual conditions (e.g., wet,
____
cold, artificial lighting) in Tank 4 on the night of the acci-
dent. Nevertheless, when asked at trial, Bijhouwer testified
that those conditions did not alter his opinion as to the safety
of the ladder design. He explained, for example, that even
though Keller was wearing heavy clothing at the time, the clear-
ance beneath the lower safety railing would be adequate for a
climber emerging from the tank, because clothing might catch on
________ ____
the railing only as a climber was backing into the tank, not as
_______ ____
he was pushing forward.
25
25
hazard) (emphasis added). Further, Bijhouwer testified that the
lower railing served both (i) a safety function, since it would
protect an exiting climber from falling backward into the tank,
and (ii) a utilitarian purpose, since it would provide Simplex
___
with the option to spool wire into Tank 4 above the 'tween deck
_____
level. See Johnson, 613 F.2d at 348 (trier of fact may consider
___ _______
"the usefulness to the [vessel] of the [allegedly] dangerous
__________
condition") (emphasis added); see also Miller, 851 F.2d at 205
___ ____ ______
("The court found that the toolbox was a necessary piece of
_________ _____ __
equipment for the barge and that it was situated reasonably to
_________
keep it out of the way of the workers on the barge. . . . Simi-
larly, the court found that whatever hazard was presented by the
counterweight was justified by its important safety purpose of
_________ ______ _______
keeping the toolbox lid from snapping shut unexpectedly.")
(emphasis added).
According to Bijhouwer, therefore, the Tank 4 ladder
incorporated at least one "safe" method of egress compatible with
MARAD (i.e., "under" the lower safety railing); hence, the vessel
____
owner had not provided Simplex with an "unavoidably" hazardous
ladder. See Teply, 859 F.2d at 378. Thus, even if MARAD had
___ _____
been the only "applicable" industry standard on which Bijhouwer
could rely, it afforded sufficient support for the district court
finding that the defendant vessel owner had discharged its
turnover duty of safe condition, on the ground that Simplex
should have "anticipated" and managed the equipment as designed,
whatever its inherent, but avoidable, risks.
___ _________
26
26
Keller further contends that the trial court erred in
finding that any potential risks attending the use of the Tank 4
ladder were "obvious." He relies on (i) Bijhouwer's testimony
that it would be "reckless" for Simplex employees to attempt to
exit Tank 4 by passing between the two safety railings or "over"
the top railing, and (ii) evidence that Simplex employees contin-
ued to use both these methods after turnover. Keller argues that
this latent design "defect" generated the independent turnover
duty that the vessel owner warn Simplex or its longshore workers
____
of the hidden danger. This contention, too, is flawed.
First, Keller incorrectly assumes that by adopting
Bijhouwer's testimony that MARAD and ASTM were "applicable"
safety standards, the trial court likewise necessarily credited
Bijhouwer's expert opinion (not based on MARAD) that it would
___
have been reckless to utilize the two other methods of egress.
On the contrary, however, the court did not adopt that portion of
the Bijhouwer testimony but went on to note instead that Keller
had proffered no evidence of any design defect whatsoever in the
___ __________
Tank 4 ladder; for example, that any accident had ever occurred
___
on the ladder when persons other than Keller used these two
alternate methods under substantially similar conditions (wet,
cold, artificial lighting). See, e.g., McKinnon v. Skil Corp.,
___ ____ ________ __________
638 F.2d 270, 277 (1st Cir. 1981) (subject to Rule 403 balancing,
evidence of prior accidents under similar conditions admissible
to show design defect); cf. Martinez, 903 F.2d at 609 (at summary
___ ________
judgment, vessel owner met burden by "offer[ing] evidence that
27
27
during the vessel's seven years of operation no longshoreman ever
fell into one of the ladder openings on the lashing platforms and
no complaints were lodged concerning the platforms"); McGann, 586
______
F. Supp. at 1571 ("[N]o other accidents or complaints concerning
this type of ladder have been reported . . . ."); accord Pittman
______ _______
v. Littlefield, 438 F.2d 659, 662 (1st Cir. 1971) (absence of
___________
other accidents under substantially similar conditions may be
probative of "safe" condition) (applying New Hampshire law).
Second, even if the district court had agreed with
Bijhouwer's assessment of the risks attending the two alternate
methods of egress, Bijhouwer never intimated that those methods
posed hazards not readily foreseeable by Simplex. Scindia, 451
_______
U.S. at 167 (noting that duty to warn exists only if "defect"
"would not be obvious to or anticipated by [stevedore] if reason-
ably competent in the performance of his work"). The alleged
design defect (two fixed railings) was in no sense latent.
Unlike a hairline fracture in the rung of a ladder, for example,
which might render the ladder configuration not reasonably safe
for any unwarned usage, the juxtaposition of the two railings and
___
the absence of posted instructions put Simplex on notice that its
employees, unless instructed otherwise, might attempt to exit
Tank 4 in any of three ways. If Simplex had deemed Bijhouwer's
"under" method the only "safe" one, it could have instructed its
employees not to use the two alternate methods. Or if it consid-
ered all three methods "unsafe," it could have removed the
railings between the stanchions at the top of the ladder.
28
28
Relying on the fact that he was never in Tank 4 prior
to the night of the accident, Keller wrongly presumes that
obviousness and latency are measured by what a relatively inexpe-
rienced longshore worker might observe. Instead, the Scindia
______ _______
standard turns primarily on what an "experienced" stevedore, like
Simplex, reasonably would be expected to notice. By the same
_______
token, if the district court correctly found that even Simplex
longshore workers reasonably could be expected to recognize any
_______
such defects, it surely follows that their more experienced
stevedore-employer should have discovered the defects during the
course of its extended two-year stewardship of the HUDDELL. See
___
Bjaranson, 873 F.2d at 1209 n.7 ("The condition of the ladder was
_________
apparent and obvious when Bjaranson's employer, the stevedoring
contractor, boarded the ship and assumed the control of the cargo
operation. Although the condition may not have been obvious to
Bjaranson at night, the fact that the condition was obvious to
__
his employer eliminated whatever duty there may have been upon
___ ________
[the vessel owner] to warn the individual employees.") (emphasis
added).
Next, Keller contends that the district court improper-
ly considered his blood-alcohol level at the time of the acci-
dent, since the doctrine of pure comparative fault would not
permit contributory negligence to defeat Keller's LHWCA claim,
______
but only to abate damages. See Johnson, 613 F.2d at 347; 1A
___ _______
Benedict on Admiralty 56, at 3-33. First, the district court
_____________________
explicitly acknowledged that had Keller proven that the defendant
29
29
vessel owner was a cause of Keller's accident, the court could
_
not have treated Keller's blood-alcohol level as a total bar to
recovery under the LHWCA. See Keller, No. 81-549-SD, slip op. at
___ ______
15 ("The court is, of course, aware that were negligence found on
____ __________ _____ __
the part of the ship owner, the intoxication of Keller . . .
___ ____ __ ___ ____ _____
would not serve necessarily to totally disqualify him from
recovery.") (emphasis added). Second, under the analogous
comparative fault doctrine for LHWCA compensation awards, a
____________ ______
stevedore may defend by proving that the longshore worker's
injuries were caused "solely" by his intoxication, cf. 33 U.S.C.
___
903(c). While the longshore worker initially enjoys a rebutta-
ble presumption against such a finding, id. 920(c), the steve-
___
dore's defense is not unprovable. See, e.g., Walker v. Univer-
___ ____ ______ _______
sal Terminal & Stevedoring Corp., 645 F.2d 170, 173 (3d Cir.
__________________________________
1981) (finding 903(c) intoxication defense established, and
noting that the rebuttable presumption "falls out of the case"
once stevedore proffers "substantial evidence" that longshore
worker's intoxication was sole cause of injury or death).
Similarly, in a section 905(b) action, the trial court
may assess the quality of the vessel owner's rebuttal evidence
where the longshore worker failed to demonstrate a vessel "de-
fect"8 and where the vessel owner has proffered "substantial"
____________________
8Given the Scindia standard, evidence of Keller's high
_______
blood-alcohol level cannot be wholly divorced from the threshold
question whether a defective design rendered the Tank 4 ladder
"unreasonably" dangerous. A written policy forbade Simplex
workers from reporting to work intoxicated. Thus, Keller's
blood-alcohol level would be relevant to whether the ladder con-
stituted an "unreasonably" dangerous condition, since the vessel
30
30
evidence of the longshore worker's intoxication. Here, the trial
court's consideration of the blood-alcohol level followed direct-
ly upon its observations concerning Keller's failures of proof:
(1) the absence of persuasive expert testimony that the Tank 4
__________ ______ _________
ladder design was so inferior to anticipated safety standards
that the defendant vessel owner could not entrust the equipment
to the stevedore's able charge; and (ii) the absence of evidence
of other accidents on the ladder under substantially similar
conditions. In this context, we interpret these trial court
observations as an acknowledgment not only that Keller utterly
failed to carry his burden of proof but that the only credible
____
evidence of possible causation (i.e., Keller's heavy drinking
____
earlier in the evening and his high blood-alcohol level one hour
after the fall) in no respect implicated the defendant vessel
__ __ _______ __________
owner. See supra note 8.
___ _____
Keller further claims that but for two items of evi-
dence which the district court improperly ignored or excluded, we
would be compelled to conclude that the district court committed
clear error. First, the district court excluded the deposition
testimony of eyewitness Rhonda Rossley, who expressed the opinion
that Keller had hit his head on a railing prior to the fall.
Nonexpert-opinion testimony is permitted only if "(1) rationally
based on the perception of the witness and (2) helpful to a clear
____________________
owner, in turning over the Tank 4 ladder, reasonably could rely
on compliance with the stevedore's policy on intoxication. See
___
Johnson, 613 F.2d at 348 (trier of fact must consider "the
_______
probability and severity of the harm [the condition] poses").
___________
31
31
understanding of the witness' testimony or the determination of
the fact in issue." Fed. R. Evid. 701. See Swajian v. General
___ _______ _______
Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990). The trial court
____________
ruled that the proffered deposition testimony did not meet the
first Rule 701 test because Rossley "did not see [Keller] strike
his head, nor could she see his right hand before he fell[, nor]
observe whether his left hand or his left foot first lost contact
with, respectively, the railing or the ladder rung." Keller, No.
______
81-549-SD, slip op. at 12.
We review a Rule 701 ruling only for manifest abuse of
discretion. See United States v. Paiva, 892 F.2d 148, 156 (1st
___ ______________ _____
Cir. 1989). We find no abuse of discretion. First, Rossley's
opinion necessarily depended upon a forbidden Rule 701 "infer-
ence," because she (i) neither saw Keller strike his head on the
railing, (ii) nor testified to any other sensory perception from
___
which one might rationally infer such an impact (e.g., the sound
____
of impact,a sudden jolt orhalt in Keller's upwardprogress, a pre-
or post-impact cry, or any outward appearance of a head wound or
bleeding).9 Cf. Swajian, 916 F.2d at 36 (finding clear abuse of
___ _______
discretion in allowing lay opinion that wheel fell off rear axle
before car flipped over, based exclusively on the witness's
______
observation that he first saw wheel crossing the road while the
_____
____________________
9Although a medical doctor testified that Keller sustained
an eye injury which could have been consistent with the Rossley
inference, given that Keller also suffered head trauma when he
landed head-first on the tank floor sixteen feet below the 'tween
deck the doctor could not testify that such an inference was
compelled.
32
32
flip-over was in progress). Although Keller's failure to call
out or to try to regain hold of the ladder could be consistent
with sudden disorientation or even unconsciousness, as a lay
witness Rossley would have had no nonspeculative basis for
excluding possible causes other than a blow to the head (e.g.,
____
intoxication, fatigue and heavy exertion).
Second, and perhaps more importantly, this was a bench
_____
trial, in which the trial judge would not only determine the
_____
admissibility of the evidence but serve as the ultimate trier of
fact. The Rule 701 admissibility determination turns on whether
the inference drawn by the nonexpert lay witness would be "help-
_____
ful to . . . the determination of the fact in issue." Thus,
___
having considered the entire proffer, the trial judge excluded
______ _______
the Rossley opinion testimony because the court found no suffi-
ciently reliable basis for the speculative inference on which it
was based. Not only do we agree, but nothing would have required
________
the trial judge, as trier of fact, to credit the Rossley opinion
had it been admitted in evidence, especially since she possessed
no particular skill or experience which would have assisted the
trial court's fact-finding insight. Cf., e.g., Soden v. Freight-
___ ____ _____ ________
liner Corp., 714 F.2d 498, 512 (5th Cir. 1983) (nonexpert witness
___________
with eighteen years' experience repairing trucks can give lay
opinion whether truck was defective).
Finally, Keller contests the exclusion of evidence that
Simplex cut out the two railings on the Tank 4 ladder one day
after the accident, as proof that the original ladder design con-
33
33
stituted an "unreasonably" dangerous condition. Keller suggests
that this evidence was admissible notwithstanding Rule 407, which
requires the exclusion of subsequent remedial repairs by the
defendant only, not by nondefendants like Simplex. See Raymond
___ _______
v. Raymond Corp., 938 F.2d 1518, 1524 (1st Cir. 1991); Koonce v.
_____________ ______
Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 719-20 (5th Cir.
________________________________
1986).
At best, subsequent remedial measures are considered
marginally probative of prior negligence. See John H. Wigmore,
___
Evidence 283, at 174-75 (1979). In this case, moreover, defen-
________
dant could have capitalized on the very same evidence to demon-
strate that Simplex was expected to make such structural altera-
tions to the HUDDELL without first consulting defendant, and that
defendant was entitled to rely on Simplex, as a reasonably com-
petent stevedore, to take such preemptive measures provided
Simplex deemed them necessary for its employees' safety. See
___
also infra note 11. Under the Scindia delineation of turnover
____ _____ _______
duty, therefore, this evidence was at least a "wash" for Keller,
and actually may have helped defendant more than Keller. For
_________
these reasons, we conclude that the exclusion of this evidence
was at most harmless. See Fed. R. Civ. P. 61 (erroneous exclu-
___
sion of evidence harmless if it "does not affect the substantial
rights of the parties").10
____________________
10Keller catalogues various documentary exhibits which he
contends were improperly excluded. We find no error. For
example, Exhibits 10, 21, and 65 were proffered to establish the
contents of the contract between Simplex and defendant. This
issue was mooted by the finding that the Tank 4 ladder did not
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2. Post-Turnover Duties of Intervention
2. Post-Turnover Duties of Intervention
____________________________________
Leaving no ground unturned, Keller argues that the
court erred in ruling that the defendant did not breach its post-
____
turnover duties: to supervise and inspect the HUDDELL during
cable loading and to intervene and remedy any hazardous condition
that developed following turnover. See Scindia, 451 U.S. at 172
_________ _________ ________ ___ _______
(noting that post-turnover duty to intervene to remedy unreason-
ably dangerous condition may derive from custom or from the
vessel owner's contractual obligation to the stevedore). Keller
contends that the court (1) disregarded his claim that the
contract with Simplex required the defendant vessel owner to
intervene to effect any safety-related alterations during cargo
operations; (2) ignored Keller's evidence that it was a customary
or established practice that the defendant monitor the HUDDELL
during loading operations; and (3) erred as a matter of law in
____________________
constitute an unreasonably dangerous condition. See infra
___ _____
Section II.B.2 & note 11. Exhibits 34 and 34A were largely
cumulative of evidence already admitted and any noncumulative
portions were provided in the van Dissell testimony. See Fed. R.
___
Civ. P. 61 (harmless error); Fed. R. Evid. 403 (governing admis-
sion of "cumulative" evidence). Finally, Exhibit 73 a mock-up
of a portion of the Tank 4 ladder, used for demonstrative purpos-
es at trial was excludable due to failure to lay a proper
foundation for its admission. See Rogers v. Raymark Indus.,
___ ______ _______________
Inc., 922 F.2d 1426, 1429 (9th Cir. 1991) (admission of demon-
____
strative evidence entrusted to trial court discretion). At
trial, Bijhouwer challenged the accuracy of the van Dissell
measurements upon which Exhibit 73 was predicated. See United
___ ______
States v. Myers, 972 F.2d 1566, 1579 (11th Cir. 1992) (noting
______ _____
that admission turns on whether there is foundation testimony
that demonstrative evidence is "fair" and "accurate" depiction of
original), cert. denied, 113 S. Ct. 1813 (1993); Nichols Constr.
_____ ______ _______________
Corp v. Cessna Aircraft Co., 808 F.2d 340, 353 (5th Cir. 1985)
____ ____________________
(same). Finally, relevant portions of Exhibits 91 and 91A were
read into the trial record. See Fed. R. Civ. P. 61; Fed. R.
___
Evid. 403.
35
35
determining that "a custom-generated duty to supervise and
inspect does not transfer to the ship owner a duty to eradicate
dangers reasonably known to and managed by the stevedore."
Keller, No. 81-549-SD, slip op. at 14 (citing La Martina v. Pan
______ ___________ ___
Ocean Shipping Co., Ltd., 815 F. Supp. 878, 880-81 (D. Md.
__________________________
1993)).
A vessel owner's duty of care normally ceases once it
has discharged its "turnover" duties and the stevedore-employer's
cargo operations have begun. Nonetheless, the Supreme Court has
suggested three settings in which an owner might remain under
_____
some "continuing" duty to monitor, supervise, or inspect the
vessel for hazards developing after stevedoring operations
__________
commence. First, the vessel owner might remain under such a duty
were it to retain actual physical control or custody of a portion
of the vessel, or participate in stevedoring operations. Scin-
_____
dia, 451 U.S. at 167. Keller concedes that these conditions were
___
not met. Second, a duty to intervene might attach in the event
the vessel owner were to acquire actual knowledge that "unsafe
______ _________
conditions" had developed in the vessel's appurtenances since
_________
turnover, that the stevedore-employer will not address the unsafe
condition, and that the stevedore's decision not to remedy the
___
developing hazard was "obviously improvident" in the circum-
stances. Id. at 174-75. Third, even absent actual control,
___
participation or knowledge, a post-"turnover" duty may arise if
the vessel owner was obligated, by contract, statute or custom,
36
36
to monitor stevedoring operations for the purpose of detecting
and remedying unsafe conditions. Id. at 172.
___
Keller's "continuing duty" claim was founded on the
contention that the defendant vessel owner had either actual or
constructive knowledge of an unreasonably dangerous condition
during cable loading operations. However, he does not suggest
______
that the basic structure or design of the Tank 4 ladder changed
_________ ______ _______
after cable loading began (e.g., ladder rungs displaced, loosened
____
or fractured). Therefore, the defendant could have breached no
continuing duty of care to Keller, since the district court
__________
supportably found that the Tank 4 ladder configuration created no
"unreasonable" hazard ab initio. See Scindia, 451 U.S. at 172
__ ______ ___ _______
("We are of the view that . . . the shipowner has no general duty
by way of supervision or inspection to exercise reasonable care
to discover dangerous conditions that develop [i.e., a malfunc-
_______
tioning winch] within the confines of the cargo operations that
are assigned to the stevedore."); Martinez, 903 F.2d at 611
________
("[T]he alleged unsafe condition [employees working on "unsafe"
platform] did not develop during cargo operations; it was either
safe or unsafe at the time the cargo operations began . . . .");
Pluyer v. Mitsui O. S. K. Lines, Ltd., 664 F.2d 1243, 1246 (5th
______ ____________________________
Cir. 1982) (noting "different situation" than in Scindia where
_______
the "case involves the vessel's liability for hazards that
antedate or are coincident with the commencement of cargo opera-
________
tions").
37
37
Keller intimates that the relevant "change" or "devel-
opment" which would have been discovered had defendant met its
alleged continuing duty to monitor and intervene was the failure
of Simplex cable loaders to use the Tank 4 ladder in the intended
manner. Thus, Keller would interpret the district court ruling
that "a custom-generated duty to supervise and inspect does
not transfer to the ship owner a duty to eradicate dangers
reasonably known to and managed by the stevedore" as holding
that a vessel owner can never be duty-bound to intervene once an
_____
on-board danger (the risk that longshore workers might resort to
the "over" and "between" methods of egress) becomes "obvious" to
the stevedore.
We cannot subscribe to Keller's reasoning. First, as
already noted, we discern no indication that the trial court
credited evidence that the two alternate methods of exiting Tank
4 were not reasonably safe. Second, even if the district court
had found these other methods of egress "unsafe," initially the
_________
vessel owner could rely on Simplex to manage such "obvious"
defects, unless and until it appeared that Simplex's decision not
to take remedial measures (warnings or railing removal) was
"obviously improvident" under the circumstances. Keller conced-
ed, however, that Simplex, which plainly had actual or construc-
tive notice as to how its longshore workers were exiting Tank 4,
never received an employee complaint about the Tank 4 ladder and
_____
that no accident ever occurred on the ladder either before or
__ ____
after the Keller incident. Thus, evidence presented by Keller
38
38
did not begin to establish defendant's actual knowledge of the
alleged "hazard" on the part of the defendant vessel owner, let
alone any obvious improvidence on the part of Simplex. For the
same reason, even if the defendant vessel owner had been under a
contractual or custom-generated duty to monitor and intervene,
Keller failed to establish a breach.11
III
III
CONCLUSION
CONCLUSION
__________
Given the exacting standards of care incumbent upon a
stevedore under the LHWCA, and the supportable trial court find-
ings, we are left with nothing approaching a "definite and firm
conviction that a mistake has been committed." Holmes Transp.,
_______________
Inc., 983 F.2d at 1129. Once the trier of fact determined that
____
the Tank 4 ladder was "safe," its design compatible with "appli-
cable" maritime safety standards, and any potential hazards
sufficiently "obvious" to Simplex longshore workers, it followed
____________________
11Keller argues that the contract between defendant and
Simplex unambiguously provided that defendant, not Simplex, would
___ _______
bear primary responsibility for ongoing "safety" inspections and
_______
modifications to the HUDDELL's work areas following turnover.
Keller points to a contract provision barring Simplex from making
unilateral structural alterations to the HUDDELL. From this
__________
premise, he contends that Simplex was compelled to use the Tank 4
ladder in existence at turnover. We do not agree. First,
contrary to the trial court's alternate finding, this argument
presumes that the ladder was "unsafe." Second, the contract
contemplated that Simplex would bear the primary role in deter-
_______ _______
mining whether modifications were needed, even if defendant was
to be consulted before "major" modifications were undertaken. In
any event, this contention falls far short of demonstrating a
contractual duty on the part of the vessel owner to monitor in
_______
the first instance.
_____ ________
39
39
inexorably that the vessel owner was entitled to rely on Simplex,
as an "expert and experienced" stevedore, to act with reasonable
care in supervising its workers in their interaction with and
avoidance of any such "obvious" hazards on board the vessel
during cargo loading operations. Any relevant "hazard" could
have been averted by Simplex in various ways, including the
permanent removal of the safety railings at the top of the Tank 4
ladder, a warning on the ladder as to safe methods of egress, or
simple instruction of its longshore workers.
The judgment is affirmed. The parties shall bear their
The judgment is affirmed. The parties shall bear their
________________________ ____________________________
own costs.
own costs.
_________
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