This section contains the nature of the case and procedural background.

P was employed by D to complete the construction of the Jamestown Bridge. In order to transport materials and equipment around the bay to the work sites, D bare boat chartered several barges. The barges involved were flat deck barges -- -- floating platforms bare of structures or equipment. D also leased two tugs from Woods Hole Towing Co. to transport the barges where needed. The tugs themselves were crewed by Woods Hole employees. D hired carpenters from a local union to build the bridge. Their responsibilities included cutting timbers and steel and setting up concrete forms for pours. The local union's requirements prevented the tug captain or crew from handling the lines on the barges, some carpenters also tended the lines on the barges as 'scowmen.' D's regular duties included both carpentry and linehandling. P and another scowman were untying two barges. A tug stood nearby. The barges were not carrying materials or equipment. A heavy line was thrown to P who, in attempting to catch it, stepped backward into an open hatch that was flush with the deck on one of the barges. P filed a complaint against D and Woods Hole alleging Jones Act negligence, unseaworthiness, maintenance and cure, and negligence under section 905(b) of the LHWCA. P voluntarily withdrew all claims except his claim for negligence under the LHWCA. A bench trial commenced and the district court dismissed P's complaint. P appealed. A panel confirmed and the decision was vacated to determine the issue en banc because of conflicting decisions with almost the same evidence.

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