KENNEDY, Circuit Judge:
The principal question in this admiralty case is whether or not the Government owes a duty of care to the employees of an independent contractor which has been engaged by the Government to perform hazardous maritime work.
Appellee Phyllis M. Nelson sued the United States under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1976), and pursuant to 28 U.S.C. §§ 1333(1) (1976) for negligence which, she alleged, caused the death of her husband while he was working on a government contracted job. Mrs. Nelson and Duncanson-Harrelson, her decedent's employer, had earlier reached a settlement agreement for $340,000. The United States impleaded Duncanson-Harrelson seeking indemnity for any amount awarded Mrs. Nelson. The trial court held the Government liable for negligence and denied it any
The U. S. Coast Guard awarded Duncanson-Harrelson a contract to repair a waive suppressor in San Francisco Bay off Fort Point. The waive suppressor is an aquatic barrier erected in the water to protect boats at the Coast Guard station from heavy waves caused by forces of nature or by passing ships. It is a wooden structure supported on two rows of timber piles connected on top by parallel horizontal wooden ribbons, cross-braced together by a slatted wooden face. The contractor was to remove and replace the existing bracing and sheathing, and to replace twenty piles. Albert J. Nelson, decedent, was a 30-year-old pile driver hired by Duncanson-Harrelson for this job, and he drowned on April 16, 1973, while working atop the barrier. He appears to have been washed over the side in a swell created by a passing ship.
The district court described the contract as follows:
The accident was caused by a failure to observe adequate safety precautions and work practices. The wave suppressor was partly dismantled as its piles were being replaced. Ordinarily the ribbons (horizontal planking) straddling the two rows of piles are nailed down at both ends and provide the structure with stability and rigidity. In its partially disassembled state, this rigidity was lost, and the unstable suppressor's components moved independently with the waves and swells. The trial court found:
District Court Decision at 4-5.
The Government's alleged negligence lay in the failure of the on-site inspector to use his authority to stop the work when wave conditions made it particularly hazardous, and in the Government's more pervasive failure to specify and delegate safety precautions in contracting for the job and supervising the work. The trial court relied on the latter ground, and, sitting without a jury, found that the work entailed a particular risk of injury.
Two questions concerning the correct law to be applied must be addressed. First, the existence of federal admiralty jurisdiction, and second, the precise source of plaintiff Phyllis Nelson's cause of action.
This case involves the admiralty jurisdiction of the district court for three reasons. The injury occurred on the navigable waters of San Francisco Bay and in the course of an activity closely connected with traditional maritime activity. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). In addition, decedent Albert Nelson was injured in the course of his
The precise nature of plaintiff's cause of action was not specified either by the district court or the parties' briefs at trial or on appeal. The suit alleged negligence, and the court had jurisdiction under the Suits in Admiralty Act. The Suits in Admiralty Act, 46 U.S.C. § 742 (1976), however, does not itself provide a cause of action. It merely operates to waive the sovereign immunity of the United States in admiralty suits. In general, maritime torts, duties, and causes of action are somewhat analogous to land-based torts. Prior to the case of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), there was no general maritime common law cause of action for wrongful death; state wrongful death acts were applied by federal courts sitting in admiralty. We have found no case deciding whether a Moragne suit may be based on negligence as well as unseaworthiness. But see G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed. 1975) (Moragne governs wrongful death actions based on negligence). We hold that the need for uniformity in maritime wrongful death actions requires extension of Moragne to cover claims based on negligence, to the exclusion of state wrongful death statutes. See Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978); In re S/S Helena, 529 F.2d 744 (5th Cir. 1976) (Wisdom, J.); Law v. Sea Drilling Corp., 523 F.2d 793 (5th Cir. 1975).
The distinctive issue in this suit is the alleged liability of the United States, the owner of the work and employer of the independent contractor Duncanson-Harrelson, for an injury to the Contractor's employee, decedent Albert Nelson. We find no case in this or any other circuit addressing this aspect of an owner's liability under admiralty law. Cases such as McGarry v. United States, 549 F.2d 587 (9th Cir. 1976), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977), and Thorne v. United States, 479 F.2d 804 (9th Cir. 1973), were decided under the Federal Tort Claims Act and required the application of "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b) (1976).
We are confronted at the threshold of this issue by appellant's argument that West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959), is controlling admiralty law on this point and requires reversal of plaintiff's judgment. Appellee argues that the facts of West distinguish its holding from the question before us so that it does not control the question of the duty owed by the United States to this decedent. We agree with the appellee: the nature of the dangers giving rise to the injury in West and in this case are significantly different. The manner in which the contractor performed the work in West introduced danger to an otherwise safe activity and workplace. See West v. United States, 143 F.Supp. 473, 476 (E.D.Pa.1956) (fall of metal plug which injured plaintiff due either to pressurized water introduced by fellow workmen or to being dropped by fellow workmen), aff'd, 256 F.2d 671, 672 (3d Cir. 1958) (accident occurred "because a fellow employee of the contractor did a positive and negligent act"), aff'd, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959). It is in light of these facts that West's requirement, that the danger be due to the manner in which the work is carried out for the contractee to escape liability, must be understood. As will be more fully explained below in our discussion of the Restatement, the regular battering of the workplace by heavy wages rendered this job peculiarly and inherently risky in a way quite different from the danger presented in West. We therefore must decide the nature of the duty owed by one who employs an independent contractor to the contractor's employees in the context of the special duties and dangers of work performed in circumstances where maritime law controls.
Both parties agree that, apart from West, the principle to be interpreted in this case is found in the following section of the Restatement of Torts:
Restatement (Second) of Torts § 413 (1965) (emphasis added). Application of this provision to the facts of this case turns on the meaning of the critically ambiguous term "others." Does the owner's duty of care, to provide for the taking of safety precautions, extend to the contractor's employees, or only to third parties and the public at large?
There are two conflicting lines of authority on this point. Compare McGarry v. United States, 549 F.2d 587, 590-91 (9th Cir. 1976), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977) (Nevada law) (duty extends to employers) and Lindler v. District of Columbia, 502 F.2d 495, 498-99 (D.C.Cir.1974) (District of Columbia law) (same) with Bramer v. United States, 595 F.2d 1141, 1144-46 & nn. 8-11 (9th Cir. 1979) (New Mexico law) (duty does not extend
The latter position rests on consideration of the general effect on liability of workmen's compensation laws, which abrogate the common law right to sue an employer in tort in return for a certain but relatively smaller payment to the injured employee. To the extent that workmen's compensation laws represent a preferred scheme for redress of occupational injuries, it does appear anomalous and fortuitous for an employee to be in a better position through a revived, as it were, claim against a third party owner than he would be in had his injury occurred in the scope of employment by the owner directly. Stated another way, it is argued that an owner should not incur greater exposure by hiring a qualified independent contractor than he would have by using his own employees, who would be limited to a compensation remedy. See Bramer v. United States, 595 F.2d 1141, 1146 n.10 (9th Cir. 1979).
The contrary position, adopted in the Lindler and McGarry decisions, may be justified as a way to minimize the costs of accidents and their avoidance. The independent contractor exception to the doctrine of respondeat superior rests on the general tort principle that in different circumstances different parties to the employment relation will know best how to avoid an accident and to weigh the costs and benefits of various precautions as against the costs and probability of the accident to be avoided. One commentator has described this principle in relation to the independent contractor exception:
Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 545 (1961) (footnote omitted). In some cases, however, the job the owner contracts out is "likely to create ... a peculiar unreasonable risk of physical harm." Restatement (Second) of Torts § 413 (1965). In these cases there is a special reason to place initial responsibility on the employer if he is "more likely to consider the risk" and better able to assess ways to mitigate the risk. Calabresi, Optimal Deterrence and Accidents, 84 Yale L.J. 656 (1975). See Calabresi, supra, 70 Yale L.J. at 547. He can be relieved of liability, according to this approach, if he makes what the law considers appropriate and reasonable provision by contractual or other precautions.
Therefore it seems reasonable to include or to exclude employees of the independent contractor from the definition of "others" in the Restatement depending on the relation between the owner and the contractor. If there is an unusual hazard, the owner can hire a contractor particularly skilled in the specific risk which makes the project unusually dangerous, as was done here. The Lindler view would additionally require that the owner spell out, with a specificity suitable to the degree and kind of risk involved, the safety precautions which the contractor is to observe. Only then would the Lindler interpretation consider that the owner had paid the cost of his enterprise by hiring a contractor whose readiness to engage in unusually dangerous work will be reflected in the latter's explicit contractual responsibility for specific and appropriate safety precautions. See W. Prosser, Handbook of the Law of Torts 469 (4th ed. 1971); Calabresi, supra, 70 Yale L.J. at 545-46; Note, Risk Administration in the Marketplace: A Reappraisal of the Independent Contractor Rule, 40 U.Chi.L.Rev. 661, 675-79 (1973) (joint liability for contractee and contractor coupled with contractual distribution of risk most rational rule). The opposite conclusion would follow from the Lindler approach when a job, the dangers of which are particularly within the knowledge and enterprise of the owner, is hired out without the liability for danger to employees and public alike having been allocated by clear and specific contract terms to the contractor.
The facts of this case seem to have suggested to the trial court this latter situation and the corresponding approach to section 413:
District Court Decision at 4, 8. The trial court implied that the Government did not
Id. at 8-9.
These, then, are the considerations supporting the conflicting definitions of the term "others" in section 413 of the Restatement. The distinctive features of maritime duties were used by the trial court in an attempt to incorporate the advantages of the broader interpretation while avoiding the drawbacks cited in decisions that refuse to include employees of an independent contractor in the definition of "others." It is true as a general proposition that the remedy of state workmen's compensation statutes, as well as their preemption of common law causes of action, does not extend to injuries on navigable waters, and more specifically, the liability of an employer for negligence is not limited to a compensation award when the situs is maritime, even when he uses his own employees: the employees have a Jones Act recovery.
Before ruling on the merits of the trial court's theory of an owner's tort liability, it is important to clarify the precise nature of the duty allegedly breached by the Government. Issues of retained control or strict liability for extra-hazardous activity are not involved. Cf. Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972) (United States not strictly liable for extra-hazardous activity under Federal Tort Claims Act); Williams v. Fenix & Scisson, Inc., 608 F.2d 1205, 1209-14 (9th Cir. 1979) (concurring opinion) (contractual liability for safety may be implied from conduct); Bramer v. United States, 595 F.2d 1141, 1146 n.11 (9th Cir. 1979) (right to inspect and approve); Market Ins. Co. v. United States, 415 F.2d 459 (5th Cir. 1969); Kirk v. United States, 270 F.2d 110 (9th Cir. 1959) (retained control); Hammond v. Bechtel Inc., 606 P.2d 1269 (Alaska 1980) (retained control). The essence of the duty which the trial court found violated in this case was the United States' nondelegable duty, imposed by section 413 of the Restatement, to provide contractually for the contractor's observance of detailed and specific safety precautions. See District Court Decision at 8-9, 10-11. In short, the Government was found liable for having written a certain kind of contract, a contract found too vague on one point.
To begin with, the rationale of the independent contractor exception, as well as criticisms of it, are most soundly based on issues of knowledge and secondary or indirect costs of avoiding accidents. The decision to place liability on one group of potential defendants stems from the recognition that, because of greater knowledge about or ability to reduce safety risks, the placement of liability on this group will keep the number and costs of accidents, both in economic and human terms, at a minimum.
Approaching this and similar problems from a more concrete perspective, the theory applied by the trial court would, to some extent, simply invalidate the previously valid independent contractor/owner relation as a practical matter. As we interpret the theory of the appellee and the trial court, the owner of a site where an inherently or peculiarly risky job is to be performed must, to escape this nondelegable tort liability, perform a preliminary analysis of special job-related safety risks and design a program of safety precautions which he will then write into his bid specifications. In addition, he may or may not be responsible to the contractor's employees for monitoring of the contractor's compliance with the specified procedures. In practice, this would amount to a judicial fiat that owner and contractor become partners in the design and supervision of safety aspects of unusually risky jobs. In circular fashion, the owner's involuntary involvement to this degree would in itself provide an additional ground for holding the owner further liable. See W. Prosser, supra, at 469. This would be an ambitious incursion into private contractual relationships, and there is no reason to suppose it would result in a safety benefit to workers in those cases where the contractor is as able, if not more so, than the owner to anticipate safety problems and to enforce appropriate safety programs. When the general policy implications of workmen's compensation schemes are added to the foregoing additional reasons against a departure from the majority interpretation of section 413 in this case, we conclude that the balance weighs heavily in favor of appellant's position.
There are, however, stronger reasons for reversing the trial court's tort reasoning in this case by virtue of the nature of the defendant. First, as we have noted, the trial court's main analytical point in avoidance of the Government's workmen's compensation policy arguments was the existence of a Jones Act remedy, because decedent A. J. Nelson was a seaman:
District Court Decision at 10. By adopting this course, however, the court avoided one "circuitous recovery" only to adopt another. It is clear that when the Government employs a seaman directly, he does not have a Jones Act remedy against the United States in an action brought under the Suits in Admiralty Act. See Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952); G. Gilmore & C. Black, The Law of Admiralty 284 n.23 (2d ed. 1975). Because of the relatively fortuitous fact that Nelson was employed indirectly, rather than directly, by the Government, under the appellee's theory he occupies a better, and the Government a worse, position for reasons totally unrelated to the danger of the work performed or the adequacy of the safety supervision protecting workers.
We hold, therefore, that under the general admiralty law the United States is not liable for injuries to the employees of its independent contractors arising out of the performance of inherently and peculiarly dangerous work in circumstances in which the contractor is solvent and is as well informed and competent as the Government in the methods necessary to avoid accidental injuries to workers, absent significant Government involvement in safety aspects of the job or a Government act aggravating the job's danger.
For the foregoing reasons, the decision below is REVERSED, the judgment against the Government is VACATED, and the case is REMANDED with instructions to dismiss appellee's suit.
The Invitation for Bids contained the following provision:
Invitation for Bids No. 12-4166-73, p. 4, Exhibit 20, Nelson v. United States of America, No. C75-0524 (N.D.Cal. Nov. 16, 1973). These regulations are now found in 29 C.F.R. § 1926 (1979).
The provisions of the contract bearing on safety responsibilities were as follows:
General Provision (Construction Contract), Standard Form 23-A, October 1969 Ed., General Services Administration, pp. 2-3, Contract No. DOT-CG12-4166 (Jan. 17, 1973), Exhibit 20, supra.
Nelson's status as a seaman by virtue of his connection with the barge is not only important for purposes of Part III, infra, but also because it obviates consideration of the question whether it was significant that his injury occurred on the wave suppressor, a structure permanently affixed to the sea floor. See Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) (statutory limitation of admiralty jurisdiction); G. Gilmore & C. Black, The Law of Admiralty 333-34 (2d ed. 1975).
In addition to the need to apply a different source of law from that which controlled McGarry, our case is distinguished factually by the important role the federal defendant in McGarry chose to retain in the job's safety program. The AEC had "four employees located at NTS whose duties were primarily concerned with safety. The function of those individuals was to appraise a contractor's performance relating to safety practices." Id., 549 F.2d at 590. We held only that where an owner chooses to involve itself in this way with a safety program, the owner may be liable for a foreseeable injury which was not anticipated by "appropriate guidelines," id. at 591.
The mirror image of the definitional question in § 413 of "others" is the question under workmen's compensation laws of who are third persons not immune from suit by injured workers as contrasted with those who enjoy the employer's immunity from suit by virtue of hiring the employer. See 2A A. Larson, supra, §§ 72.00-72.40; McCoid, The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Non-Employers, 37 Tex.L.Rev. 389 (1959).
The above exceptions are atypical, however, and in general this policy is accurately characterized by appellants.