Professional Documents
Culture Documents
Keller v. United States, 1st Cir. (1994)
Keller v. United States, 1st Cir. (1994)
____________________
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
tained in a
to recover
nor
America.
V. B.
33 U.S.C.
and
901-950,
injuries sus-
owned by defendant-
As appellant has
Keller
his Longshore
damages for
Plaintiff Steven
that the
not demon-
unprece-
dented decision-making
the United
ARTHUR M.
HUDDELL,
motorized
barge
purchased
by the
a World
for
storing and
Navy
Liberty Ship,
transporting
from Simplex
Wire and
the U.S.S.
into a
maritime
Cable
Co.
non-
cable
The
it remained
employees
Simplex hired
to descend into
retrofitting,
the Navy
installed a
During
nonremovable
from
The barrier
located at
the top of
an access
ladder
a cable loader
were available for getting from the tank onto the 'tween
deck floor:
floor and
tank, then
from the
outside
passing under
_____
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
nonmatriculating
Hampshire.
On the night of
sophomore
two six-packs)
at
the
University
of
New
went to a
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
4 without
incident,
climbed to
3
3
of the ladder.
he fell backward,
Then,
neither
head.
When
one-half hours after Keller had reported for work, revealed a .14
demonstrating that a
influence.
(amended
See
___
N.H.
Rev.
is under
Stat. Ann.
262.A-63
.08).
Since
(1963)
against
Following
a seven-day
the United
States for
bench trial on
negligently
Keller's claims
installing "unsafe"
4, and for
see 33
___
First, did
____________________
deprive
the
trial
of
the
of final
customary
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,
court make
breach of the
Third,
"continuing" duty
operations
to
for developing
hazards?
A.
A.
claims that an
unprecedented eight-year
judge's failure
to refresh
his recollection
with the
through re-
resulted in
to the
a violation
courts"
of his
and to
due
constitutional
process, see
___
violate
986 (1974),
or in
rights
if a
Const.
v. Massachusetts,
_____________
constitutional
U.S.
right to
civil
pretrial delay
________
litigant
is
violation which
warrants withholding
the
Cf.
___
Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 787 (1st Cir. 1990)
__________
________________
5
5
889
year delay).
generality in the
and
implicitly relies
on
conclusive
complete and
presented
concedes that
neither Chamberlin
__________
Nor
(rejecting per se
___ __
bounding decision-making
also,
____
nor Fernberg
________
rule under
for
697,
mine
whether
pretrial delay
"exceed[ed]
constitutional bound-
aries").
ad hoc
__ ___
appellate scrutiny
is indispensable
to the
core deter-
Second-
ly, it is
affords
232
retrial
yield yet
litigants.
further delays,
exacerbating the
burdens on
1651 (mandamus
tion
on
remain
despite
focused
inordinate
ensuring that
decision-making
trial
of its
severe impediments
remand
of fact
judgment
findings,
be
squandered
not
We
therefore opt
unreliable to
is warranted
to reliable
court
court's findings
vacation
delay,
trial
the degree
despite the
fact-finding in
Cf. Barker
___ ______
that
admittedly
the event of
v. Wingo, 407
_____
or distor-
tion).
Notwithstanding the eight-year
and judgment, for
explanation,
that
the
which we
responsibility
expedite the
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
time it
was required
precedence to
its criminal
caseload.
we well serve
3161 (1993).
the interests of
justice, or
the absence
district
court
of a
complete trial
incapable
of
transcript
determining
to presume
rendered the
matters
relating to
or to recollect or reconstruct
trial exhibits).
court in the
course of rendering
allegations that
findings is not
the trier
has
an appellant to substantiate
conclusory
its decision
of fact
a challenge to
not have
recalled or
transcript.
as
to the
reliability of
the trial
a complete trial
judge's findings,
the claim
that
the trial
judge's findings
since a
Thus, as
themselves
Keller's
thesis as in any
findings were
painstaking
complete
other case, by
infected
with
scrutiny of
the
trial transcript.
"clear
error" based
entire trial
See
___
on
our
record, including
own
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
central to the
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)
(3)
____________________
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)
(5)
(6)
If any design
"hazard," such
(7)
1.
1.
a.
a.
Applicable Law
Applicable Law
______________
905(b) is a matter
Elberg v.
______
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
court
"turnover" and
misconstrued the
to Keller and
"continuing"
standard of
care
905(b).
Simplex, in its
current
10
10
harbor
worker such
as
Keller,
who incurs
LHWCA, such
Conversely,
an award of
as Keller recovered
work-related
A longshore
stevedore was
compensation under
from Simplex, is
the longshore
the
See 33
___
250 n.1
Until 1972,
vessel
______
owner on
_____
breach
of the
could
be
two distinct
warranty
of "seaworthiness."
established more
easily
legal theories:
than
the sole
became virtual
longshore workers.
nonnegligent
cause of the
by
vessel
even if
hazard.
See
___
91, at 5-2 to
Benedict on Admiralty].
_____________________
insurers of
the on-board
Vessel
safety of
owner
was
negligence, simply
1A Benedict on Admiralty
_____________________
and
"Unseaworthiness"
the
negligence
owners thus
the hazardous
condition or
stevedore's negligence.
indemnification
claim
In
11
11
an
1972,
the LHWCA
to the
remedial
the warranty
actions
of "seaworthiness"
against
the
vessel
as a
owner,
basis for
required
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.
___
responsibility for
______________
compensating injured
longshoremen to
(emphasis added).
114 S. Ct.
of care incumbent upon a vessel owner fall into two broad categories:
loading operations
duties, such
may
as inspection,
and
to the stevedore
supervision or
intervention, which
See
___
(i)
(i)
First, the
safe condition" is
met if the
dore poses
no reasonably foreseeable
__ __________ ___________
risk to
to the steve-
any worker,
even
to monitor the
because longshoring
is particularly dangerous, in
many respects
satisfy such
an exacting threshold.
F.2d 334,
ever
the vessel
experienced
___________
should
over
stevedoring
___________
expect to
______ __
relaxed:
"ordinary
"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
be able
by the
operations
exercise of
"with
reasonable
the
subject to detailed
for
affording its
U.S.C.
941
vessel owner,
workers a
(1993); 29
"safe" workplace.
C.F.R.
stevedore is
e.g., 33
____
1918.25
Scin_____
own employees in
See,
___
1918.1-1918.106,
owner's vessel.
the
on the
however,
860
v. National Shipping
_________________
vessel
owner's duty is "to turn over the cargo area in a reasonably safe
__________
(emphasis added).
Conversely, under
F.2d 375,
or "antici-
dis____
current law
378 (5th
hazard.
See
___
Teply v. Mobil
_____
_____
v. Bay
___
alert the
_____
stevedore-employer to
any latent or
is the "duty
vessel owner to
concealed defect
or should be known
______ __ _____
are
not known
___ _____
by the
stevedore[,]
and would
not be
___
obvious to or anticipated
_______
performance of his
work."
at 167
in the
(emphasis
added).
turnover duties,
Keller, No.
______
81-549-SD, slip
op. at 10-11,
he
on
14
14
whether
the defendant
duty of intervention.
agree.
the
vessel owner
See Brief
___
litigation
issue
We cannot
the perti-
is whether
was causally
standards" and
a "continuing"
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)
14.
Thus,
the
the
district court
clearly
identified
and applied
factual find-
ings.
b.
b.
finding
duties.
that
the
First, he
two challenges
United
expert
is so
conclusory that no
court shall
breach
court
its turnover
finding
that the
not
States did
to the district
testimony of plaintiff's
evidentiary basis
the record.
See Fed. R.
___
Civ. P. 52
jury . . . the
state separately
for the
its
The
the
crux of our ad
__
trial court
enable
findings
are precise
effective appellate
review.
inquiry is whether
and
See
___
detailed enough
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
brief, definite,
necessity for
pertinent
findings .
over-elaboration of detail'")
. there
is
no
(citation omitted).
end
its
analysis
with the
observation
that
Bijhouwer's
for so finding:
on the
possible
standards
might
proceeded
to point
consequences any
have upon
"deviations" from
worker safety.
out that
Keller
Further,
had produced
those
the court
no competent
These
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
evidence,
evidence
or
its
refusal to
entitled to
greater
unreliable or
admit
weight.
or
consider
Whether
the
606,
609 (9th
Cir. 1990);
Clear
error review
presupposes appellate
firm conviction
that a
mistake
court findings
v. Moran,
_____
deference to
has been
committed."
Particular deference is
dependent on witness
19 (1st
credibility, see
___
Cir. 1991),
to the
credi-
bility assessments
(8th Cir.
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
by a
evidence, both
proximate causation
and a
F.2d 1204,
See
___
Bjaranson v. Botelho
_________
_______
1989); Biggs
_____
tion
care.
vessel-owner conduct
See Scindia, 451
___ _______
that would
Since action-
concept of
guidance on
various duties of
v.
constitute
negligence. .
violative of
the
Much was
left to
be
law and
ted).
the ordinary
Generally
process of litigation.'")
speaking,
the fact-finder
(citation omit-
should assess
the
though
at 205 (same).
"proof of [the
or custom
dispositive on
___________
practice
gence," Martinez,
________
is not
And, even
to an industry
the issue
of negli-
of
statutes, regulations
for repairs of
and customs
allocating responsibility
dore]," since these sources are probative of the risks a "reasonably competent" stevedore should
Benedict on Admiralty
_____________________
e.g., Martinez, 903
____ ________
judgment,
a
609 (noting, on
review of
See
___
1A
see also,
___ ____
summary
a naval architect,
requirements").
Keller
challenges
the
cornerstone
finding
by
the
district court:
"persuasive" appraisal of
gist of
Bijhouwer's testimony
the Tank 4
was that he
The
personally inspected
its dimensions,
18
18
In twenty-four years
to ten percent
and
4.
as a marine survey-
Bijhouwer
ladder-railing configurations
He
mounted in
of the vessels
"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
or surpassed
merit in
to the
district
court's credibility
determinations,4 we
focus on
two
____________________
related contentions.
First,
the district
out that
fall,
the
for
ASTM was
the
promulgated several
purpose
of facilitating
He
years after
inter-vessel
unobstructed
conceded at trial
gap in
___
the
Tank
safety
that MARAD
4 railing,
Keller
4 ladder substan-
contentions cannot
statutory or
standard.
See
___
less likely
is
changed
rendered
infra note 5.
_____
that ASTM
as a
so dramatically
with a particular
Rather, "applicability"
minimum safety
no evidence
wholly
ASTM would
ASTM norm
Keller
mere relevance:
There
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
____________________
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
"safety-related aspects
dards."
ASTM's purpose
interchangeability
based
to all
___
of [these
industry] stan-
1979.
Even if ASTM were deemed wholly
er, it was but
on
"inapplicable," howev-
safety standards
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
ladder.
(or
removable
railings)
only
a gap be
a fixed
as needed
to
facilitate
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
and into
Tank 4.
He
only
in
"deck"
railings
been left in
near ladders,
two
plausible
exclusively to railings on
the 'tween
citing
(2) the
gap should
the periphery of
the main or
term "access
opening"
person could
exit safely, such as the 27-inch space under the lower railing on
_____
Tank 4.
Bijhouwer's
testimony likewise
U.S.C.
by OSHA
Yet even
on
a "safe" workplace.
was bolstered
found on Tank 4.
not dis-
See 29 C.F.R.
___
the
extent that
the
technical
aspects of
MARAD
on Bijhouwer's testimony,
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,
(5th Cir.
1962)
(emphasis
added));
Netumar, 586 F.
_______
McGann
______
Supp. 1568,
1984) (evidence
that
Van Dissell,
Keller's expert
witness,
ticularly
_________
recommenda-
safety
intended
for
standards, or
applications
at
distinctively
safety
standards not
maritime
in
nature:
(1970);
Standard
American
National
Standards
Institute's
(ANSI)
Ladders, 29
C.F.R.
1910.27
(1975).5
In
necessitated by the
Simplex could
only whether
weight
have anticipated
___________
Scindia
_______
that the
specifications.
By contrast, Bijhouwer
than
land-
testified
that
shipyards commonly
________
consult
_______
standards, such
as MARAD,
_____
in
military
specifications
like
MIL-STD-1472;
and,
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
railing on
Tank 4
deposition that
a minimum
lower
4.
would
At trial,
afforded an
Bijhouwer testi-
vertical gap
railing
exiting Tank
inconsistent and
be a
of twenty-five
"safe"
however,
"access
Bijhouwer
into the 'tween deck floor six inches from the ladder and the rim
of Tank 4.
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
the tank
attain
ledge.6
maximum
_______
head/shoulders to
out
In
vertical
body as he placed
that
position, the
posture
knee), at which
climber
(measured
from
would
stooped
would flatten
his knee up
the
lower railing.7
movements as
longshore
While Keller
dangerously acrobatic,
workers are
called upon
characterizes
it is well
to cope
recognized that
with uncomfortable,
these
See,
___
e.g.,
____
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
___ __ ___ __ ___ _______
simply
"the
and (ii) a
___
level.
usefulness to
__________
the
it would
Simplex
'tween deck
[vessel] of
the [allegedly]
dangerous
condition")
("The
court
equipment
_________
found that
the toolbox
was
F.2d at 205
a necessary
_________
that it was
piece of
_____ __
situated reasonably to
Simi-
counterweight was
keeping
the
justified by
toolbox
lid
from
snapping
shut
purpose of
_______
unexpectedly.")
(emphasis added).
According to
Bijhouwer, therefore,
the Tank
4 ladder
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
on which Bijhouwer
that
the
duty of
defendant
safe
vessel owner
condition, on
the
had
discharged
ground that
its
Simplex
Keller further
"obvious."
that it would be
court erred in
He
relies on (i)
Bijhouwer's testimony
attempt to
the top railing, and (ii) evidence that Simplex employees continued to use both these methods after turnover.
this latent
duty
design "defect"
independent turnover
Bijhouwer's
Keller
testimony
have
generated the
incorrectly
that
MARAD
assumes
and
ASTM
based on
that
by adopting
were "applicable"
necessarily credited
MARAD) that
it would
methods of egress.
On the contrary, however, the court did not adopt that portion of
the Bijhouwer testimony but
had
that Keller
the
alternate
ladder when
methods under
than
ever occurred
Keller used
substantially similar
these two
conditions (wet,
cold,
artificial lighting).
See,
___
638 F.2d 270, 277 (1st Cir. 1981) (subject to Rule 403 balancing,
evidence of prior
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
fell into one of the ladder openings on the lashing platforms and
v. Littlefield, 438
___________
other
F.2d 659,
accidents under
substantially similar
1971) (absence
conditions
of
may be
even if
Bijhouwer's assessment
methods of
the
district court
had agreed
with
posed
U.S. at 167
(noting that
duty to warn
Simplex.
Scindia, 451
_______
exists only if
"defect"
defect
the performance
(two
of his work").
fixed railings)
was
in
The
alleged
no sense
latent.
for any unwarned usage, the juxtaposition of the two railings and
___
unless instructed
"under"
otherwise, might
attempt
all
to exit
three
methods "unsafe,"
it
could
Or if it considhave removed
the
Relying on the
to
the
night of
the
Keller wrongly
in Tank 4 prior
presumes
that
rienced
longshore worker
______
might observe.
Instead,
the Scindia
_______
to notice.
longshore workers
_______
such
be expected
defects,
it surely
follows
that
same
Simplex
to recognize any
their more
By the
experienced
See
___
Bjaranson, 873 F.2d at 1209 n.7 ("The condition of the ladder was
_________
apparent and obvious
the stevedoring
contractor, boarded the ship and assumed the control of the cargo
operation. Although
Bjaranson
his
___
obvious to
was obvious to
__
added).
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
______
of the acci-
would not
LHWCA claim,
F.2d at
347; 1A
court
vessel
of Keller's accident,
bar to
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
. .
worker's
U.S.C.
unprovable.
(finding
903(c) intoxication
645 F.2d
170, 173
defense established,
(3d Cir.
out of the
"substantial evidence"
that
and
case"
longshore
the quality of
and where
the vessel
rebuttal evidence
to demonstrate a
owner has
vessel "de-
proffered "substantial"
____________________
8Given the
failures of proof:
the Tank 4
ladder
design was
so inferior
to anticipated
safety standards
equipment
to
of
other accidents
conditions.
In
on
the ladder
this context,
we interpret
observations as
an acknowledgment
failed to carry
evidence
earlier
after
owner.
of possible
causation
under substantially
similar
these trial
Keller utterly
(i.e., Keller's
____
court
credible
heavy drinking
no respect
__ _______
implicated the
__________
defendant vessel
two items of
evi-
had hit
his head
on a railing
prior to
the fall.
31
31
understanding of
the determination of
See
___
Swajian v. General
_______
_______
the
Rule 701 test because Rossley "did not see [Keller] strike
observe whether his left hand or his left foot first lost contact
with, respectively, the railing or the ladder rung."
Keller, No.
______
discretion.
Cir. 1989).
We
find no abuse
opinion necessarily
of discretion.
depended upon
a forbidden Rule
First,
156 (1st
Rossley's
701 "infer-
car
based
exclusively
on the
witness's
while the
_____
____________________
flip-over was in
out or
with
progress).
to try to regain
excluding
Rossley
would
Keller's failure to
sudden disorientation
witness
Although
have
or
could be consistent
even unconsciousness,
had no
nonspeculative
a blow to
call
as a
lay
basis
for
in which
admissibility
fact.
the
the trial
judge would
not only
determine the
whether
ful to
___
. . .
the determination
having considered
the entire
______
of the fact
in issue."
Thus,
judge excluded
suffi-
liner Corp., 714 F.2d 498, 512 (5th Cir. 1983) (nonexpert witness
___________
with
eighteen years'
experience repairing
trucks can
give lay
on the Tank
4 ladder one
day
after the accident, as proof that the original ladder design con33
33
condition.
Keller suggests
the exclusion
defendant
of
subsequent remedial
repairs by
like Simplex.
the
See Raymond
___ _______
1986).
At
best, subsequent
marginally probative of
Evidence
________
remedial measures
prior negligence.
See
___
are considered
John H. Wigmore,
to demon-
structural altera-
stevedore,
to
rely on Simplex, as a
take such
necessary for
preemptive
measures
its employees'
reasonably com-
provided
safety.
See
___
delineation of turnover
have helped
we conclude that
harmless.
the exclusion of
Keller.
For
this evidence
P. 61 (erroneous exclu-
2.
2.
no ground
unturned,
Keller
argues that
the
court erred in ruling that the defendant did not breach its post____
turnover duties:
to
supervise and
during
ably dangerous
condition
may derive
from
that the
contract
with Simplex
intervene to
court
(1)
from
to the stevedore).
disregarded
required
custom or
his claim
the defendant
the
Keller
that
vessel owner
the
to
practice that
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
dangers
reasonably
known
to
duty
to
supervise
and
and managed
by
the
stevedore."
815 F.
Supp.
878, 880-81
(D.
Md.
1993)).
A vessel owner's duty
once it
three settings
"continuing" duty
vessel
for
commence.
hazards
in which an
to
owner might
_____
monitor, supervise,
developing
__________
after
remain under
or inspect
stevedoring
the
operations
Second, a
Scin_____
owner were to
the event
that "unsafe
conditions"
had developed
_________
in
the vessel's
appurtenances since
hazard was
Id.
___
"obviously
at 174-75.
participation or
decision not to
improvident"
Third,
even absent
in the
circum-
actual control,
remedy the
may arise if
or custom,
36
36
to monitor
stevedoring operations
"continuing
of
duty" claim
was founded
on the
an unreasonably
loading operations.
of detecting
Id. at 172.
___
constructive knowledge
during cable
______
dangerous
However, he does
condition
not suggest
ladder changed
_______
____
or fractured).
continuing
__________
duty
of care
to
Keller, since
have breached no
the
district court
hazard ab initio.
__ ______
U.S. at 172
("We are of the view that . . . the shipowner has no general duty
by way of supervision or
to discover
to
[i.e., a malfunc-
the stevedore.");
Martinez,
________
care
operations that
903 F.2d
at
611
either
. .");
(noting "different
the
involves
"case
antedate or
________
the
situation" than in
vessel's liability
for
Scindia where
_______
hazards
that
tions").
37
37
met its
the failure
transfer to
the
ship owner
to supervise and
a
duty to
ruling
inspect does
eradicate
dangers
as holding
once an
to
the stevedore.
We cannot
already noted,
we
credited evidence
4 were not
discern no
indication that
First, as
the trial
court
reasonably safe.
Second, even if
owner could
rely
on Simplex
to
initially the
_________
manage such
"obvious"
take
remedial measures
"obviously improvident"
ed, however, that
(warnings
or
railing removal)
was
Keller conced-
that no accident
__
after
4,
ever occurred
____
on the ladder
Thus, evidence
either before
or
presented by Keller
38
38
to establish defendant's
actual knowledge of
the
owner, let
For
the
contractual or
custom-generated duty to
monitor and
intervene,
incumbent upon a
and firm
conviction
been committed."
Holmes Transp.,
_______________
determined that
cable"
maritime
safety
standards, and
any
potential
hazards
workers, it followed
____________________
avoidance
during
have
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
40
40