March 18, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 90-1957
ROCCO P. DIGIOVANNI, JR.,
Appellee,
v.
TRAYLOR BROTHERS, INC.,
Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on March 4, 1992, is amended as
follows:
Page 2, paragraph 2, lines 8 and 12: change "Newport" to
"Jamestown"
Page 4, paragraph 1, line 6: change "citing" to "quoting"
Page 5, paragraph 1, line 14: delete "(1st cir. 1973)"
Page 5, note 2, line 6: change ";" to ","
Page 6, paragraph 1, line 14: change "," to "." and change "id."
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to "Id."
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Page 10, paragraph 3, line 1: delete ","
Page 10, paragraph 3, line 2: change "second" to "fifth"
Page 12, paragraph 3, line 3: change ";" to ","
AMMENDED DISENT 91-1957
TORRUELLA, Circuit Judge, with whom BOWNES, Senior
_______________ ______
Circuit Judge, joins (Dissenting). William Shakespeare tells us in a
______________
famous passage from Romeo and Juliet that labels are not important,
_________________
but rather that content is what counts.6 In more recent times,
Gertrude Stein had similar advice.7 Although poetic philosophy seems
far removed from the hard world of maritime torts, I believe that the
counsel found in those quotations has definite relevance to the issue
that separates my views from those of my colleagues in the majority.
Notwithstanding the lack of a statutory definition for
the term "vessel" in the Jones Act, 46 U.S.C. 688,8 at least
twenty-four (24) federal maritime or maritime related laws9 define
"vessel" in such manner as to clearly include the BETTY F within the
scope of their description. The BETTY F is thus a "vessel" under the
Shipping Act, 46 U.S.C. 2101(45), and the Merchant Marine Act, 46
U.S.C. 801. It is covered as such by the International and Inland
Rules of the Road, 33 U.S.C. 1601(1), 2003(a), can be mortgaged
under the Federal Ship Mortgage Insurance Act, 46 U.S.C. 1271(b),
____________________
6 "What's in a name? That which we call a
rose
By any other name would smell as sweet."
Shakespeare, William, Romeo and Juliet. II, ii, 43.
________________
7 "Rose is a rose is a rose is a rose."
Stein, Gertrude, Sacred Emily (1913).
____________
8 46 U.S.C. 688:
Any seaman who shall suffer personal
injury in the course of his employment
may, at his election, maintain an action
for damages at law, with the right of
trial by jury.
9 See Appendix to this opinion.
___
must have its bottom painted within the restrictions of the
Antifouling Paint Control Act, 33 U.S.C. 2401(11), and even falls
within the definition found in the Sentencing Reform Act, 18 U.S.C.
3667. In contrast, I have found no federal maritime statute which
would label the BETTY F anything other than a vessel. It would seem
that the weight of these Congressional pronouncements alone would be
enough to sustain appellee's case if for no other reason than by its
recognition of the time honored doctrine of in pari materia. See
________________ ___
McDermott Int'l, Inc. v. Wilander, 111 S. Ct. 807, 811 (1991);
_______________________ ________
Morissette v. United States, 342 U.S. 246, 263 (1952); United States
__________ _____________ _____________
v. Porter, 591 F.2d 1048, 1053 (5th Cir. 1979) (quoting Morissette,
______ __________
342 U.S. at 263).
Because "[t]he inquiry into seaman status is of necessity
fact specific; it will depend on the nature of the vessel, and the
employee's precise relation to it." Southwest Marine, Inc. v. Gizoni,
______________________ ______
___ S. Ct. ___ (1991); McDermott Int'l, Inc. v. Wilander, 111 S. Ct.
______________________ ________
at 818. I believe that it is useful to spell the facts out in
somewhat greater detail than is done in the majority opinion.
THE FACTS
THE FACTS
_________
Appellee was injured aboard a supply barge while tending
tag lines to a crane aboard the barge to which he was assigned, the
BETTY F. These two barges worked together with the supply barge not
only carrying supplies to be used aboard the BETTY F, but more
significantly, transporting part of BETTY F's crane at the time of the
accident.
The BETTY F is a typical steel-hulled barge designed to
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transport cargo or act as a work platform. It is 100 feet in length
overall, has a 40 foot beam, raked bow and stern, and carries a roll-
on crane in its aft area. It has toilet facilities for the crew, and
what amounts to a galley in the form of an enclosed cafeteria with a
stove and refrigerator, where the crew regularly take their meals. A
tool shack and a sitting area are located in its bow section. The
evidence presented at trial established that this vessel is routinely
inspected by the Coast Guard for compliance with its regulations, as
well as by surveyors for marine insurance purposes. Sea trials are
also conducted to determine its seaworthiness and insurability.
As part of its compliance with Coast Guard requirements,
the BETTY F had port and starboard navigation lights which were used
when the barge was moved at night. It also carried and used anchor
signals when not in movement, white balls which are hoisted when
working at anchor in day time and a white anchor light and whistle for
working at night. As required by regulations, its name and home port,
"Wilmington, Delaware," are painted on its stern. Pilsom marks,
indicating its load lines, are painted on its sides as is normally the
case with other vessels. By observing these markings, the BETTY F's
ballast is periodically shifted, thus maintaining a seaworthy trim.
The BETTY F was frequently boarded and inspected by the Coast Guard
pursuant to its legal duty to see that vessels are in compliance with
the maritime laws of the United States. See 14 U.S.C. 2; Dougherty
___ _________
v. Santa Fe Marine Inc., 698 F.2d 232, 235 (5th Cir. 1983) (The
_____________________
failure to follow any Coast Guard regulation which is the cause of an
injury establishes negligence per se).
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The BETTY F was based in Davisville, Rhode Island, from
where it was towed by a tug to its various work locations, including
its workplace at the time of appellee's injury, a bridge under
construction in Jamestown, Rhode Island. The tug moved the BETTY F
"to whatever area we were going to." It was "moved quite a bit." In
August, the month before appellee's accident, the BETTY F had been
outfitted in Davisville. Although a tug was used to move the BETTY F
most of the time, it also had four spud anchors which could be used to
reposition the barge once on location. At the location in question,
the BETTY F was moved away from the bridge's pilings every night to
prevent damage by the tidal surge.
Appellee, as well as the rest of the BETTY F's crew, were
transported to work each day from Davisville by a crew boat. Although
appellee's principal duties on the BETTY F were as a tagman for the
crane, his work also included typical able seaman's duties aboard a
steel vessel: chipping, painting and providing basic maintenance to
the hull, tending mooring lines, fendering the vessel, setting and
resetting the anchors, moving the barge away from the bridge every
night, and ballasting the hull. When moved by the tug, the BETTY F's
crew, including appellee, worked together with the tug's crew and
under the tug captain's orders. In fact, many times appellee would
actually be physically aboard the tug during these operations.
As previously indicated, appellee was working on the
supply barge when he was injured. This barge is an integral part of
the BETTY F's operation, and has no separate name or identification.
It is 80 feet in length and has a 40 foot beam. Towed by a tug, it
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traveled back and forth on an almost daily basis from its main base in
Davisville, bringing materials and equipment to the BETTY F.
The record contains additional information, which
although admittedly less relevant, adds a definite maritime flavor to
the activities aboard the BETTY F. At least part of the BETTY F's
crew was composed of former merchant seamen. The crew wore life
jackets while working aboard the BETTY F. The lingua franca of the
______________
crew/witnesses with reference to the BETTY F is seaborn in nature,
i.e., "crew," "aboard," "load lines," "ballast," "anchors," "bow,"
"stern," "forward," "aft," "alongside," "midships," "deck" and
"ashore." This terminology is found throughout the record. Although
it might be argued that this is stretching a self-serving argument, I
point out that this language was not only used by appellee's witnesses
but also by appellant's attorney throughout the trial, and his expert
witness, Davis C. Du Bois, who at all times during his testimony
referred to the BETTY F as a "vessel." I suggest that this conduct
reflects an acceptance by appellant of an undeniable reality, at a
time when the status of the BETTY F as a vessel was taken for
granted.10 In fact, all who dealt with the BETTY F, the Coast
Guard, its crew, its owners, that is, all except this Court, treated
the BETTY F as if it were a vessel, not something else. Lest we
forget, no one argues that the BETTY F is physically or structurally
any different than the thousands of similar barges which ply the
____________________
10 I might add, only half in jest, that people usually do not name
non-vessels. This seems to indicate that the BETTY F's owners
considered it enough of a "vessel" to treat it in a traditional vessel
fashion.
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oceans of the world, or that the BETTY F is incapable of engaging in
such commerce. Rather, the downgrading of the BETTY F to non-vessel
status seems to be anchored on the frequency, or more accurately, the
infrequency, of its voyaging.
DISCUSSION
DISCUSSION
__________
In my opinion the majority's change in course fails to
take into account the Supreme Court's traditionally liberal
construction in deciding who is a "seaman" under the Jones Act. See
___
Cox v. Roth, 348 U.S. 207, 210 (1955) ("The Jones Act "As welfare
___ ____
legislation . . . is entitled to a liberal construction to accomplish
its beneficent purposes.") (quoting Cosmopolitan Co. v. McAllister,
________________ __________
337 U.S. 783, 790 (1949)). We find the most recent expression of this
unswerving trend in the Court's unanimous decisions in Southwest
_________
Marine, Inc. v. Gizoni, supra, and McDermott Int'l Inc. v. Wilander,
____________ ______ _____ ____________________ ________
111 S. Ct. at 814 ("[t]he Jones Act is a remedial statute").
In Wilander, Justice O'Connor clearly forecasts the
________
outcome of our present case in her discussion of the need for the
concept of a "vessel" to evolve with changing technology. Wilander,
________
111 S. Ct. at 812. Also of prime importance to the present
controversy is the Court's citation, with apparent approval, of
Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), from which we
____________ _______
adopted the rule in Bennett v. Perini Corp., 510 F.2d 114 (1st Cir.
_______ ____________
1975), which the majority now discards. Id. at 809. The "seaman" in
__
Wilander, was a paint foreman whose duties "consisted primarily of
________
supervising the sandblasting and painting of various fixtures and
piping located on oil drilling platforms." Id. Wilander was injured
__ ____________________
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on one such platform. At the time, he was assigned to a "paint boat"
____________________
that contained equipment used in sandblasting and painting the
platforms. The drilling platforms were attached to the ocean floor in
_______________________________________________________
a semi-permanent manner.
The facts in Gizoni sound equally familiar. Several
______
floating work platforms were also involved, including a pontoon barge,
two float barges, a rail barge, a diver's barge, and a crane barge.
___________
Gizoni, 60 U.S.L.W. at 4021. Gizoni was a rigging foreman on these
______
working platforms and rode them as they were towed into place. The
platforms were used to move equipment and supplies around a shipyard
__________________
and on and off vessels under repair. These platforms had no power,
_____________________________________
means of steering, navigation lights, navigating aids or living
facilities. They were moved by tugs, which positioned them as needed.
Gizoni occasionally served as lookout and handled lines from the crew.
He was injured while on a platform being used to transport a rudder
from the shipyard to a floating drydock in that yard.
____________________________________________________
In Wilander the Court said that the issue of who is a
________
"seaman" under the Jones Act [i.e., an employee who contributes to the
functions or mission of a vessel], is better characterized as a mixed
question of law and fact than as a pure question of fact for the jury.
Wilander, 111 S. Ct. at 818. But if there are questions of fact
________
"regarding whether the floating platforms were vessels in navigation,"
these must be submitted to the jury. Gizoni, 60 U.S.L.W. at 4023.
______
However, if "underlying facts are established, and the rule of law is
undisputed, the issue is whether the facts meet the statutory
standard." Wilander, 111 S. Ct. at 818. "[S]ummary judgment or a
________
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directed verdict is mandated where the facts and the law will
reasonably support only one conclusion." Id. (citation omitted).
__
As I understand appellant's position, particularly
considering the record before the district court, the facts as stated
ante are not substantially in dispute. See Appellant's Brief at 3-7;
____ ___
Petition for Rehearing, at 4. Appellant did not present any evidence
challenging appellee's witnesses and the facts dealing with the BETTY
F. To this we must add that the BETTY F and the supply barge (and
perhaps the crew boat) are a "group of vessels" (see Gizoni, 60
___ ______
U.S.L.W. at 4021). Although I believe that as a matter of law it
could be ruled that appellee was injured while working on a "vessel,"
I am willing for present purposes, to concede that it is still
arguably a jury question. Id. We thus look to the new legal standard
__
established by the majority.
Under Bennett v. Perini Corp., 510 F.2d 114, 116 (1st
_______ _____________
Cir. 1975), relied upon by both the district court and the panel:
To be a vessel, the purpose and business
____________
must to some reasonable degree be the
___________________________
"transportation of passengers, cargo or
equipment from place to place across
navigable waters."
(Emphasis supplied) (quoting Powers v. Bethlehem Steel Corp., 477 F.2d
______ _____________________
643, 647 (1st Cir.), cert. denied, 414 U.S. 856 (1973)).
____ ______
The Fifth Circuit's "standard," which is purportedly
adopted by the en banc majority in place of Bennett, is found in
__ ____ _______
Bernard v. Binnings Construction Co., 741 F.2d 824, 829 (5th Cir.
_______ __________________________
1984). In reality the Fifth Circuit sets two different standards:
a. The first: "[A] structure whose purpose or primary
business is not navigation or commerce across navigable
___
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waters may nonetheless satisfy the Jones Act's vessel
requirement if, at the time of the worker's injury, the
structure was actually engaged in navigation."
________
Id. (Second emphasis supplied).
__
b. The second: A Jones Act "vessel" is a structure which
"was designed or used primarily for the transportation of
____________
cargo, equipment or persons across navigable waters OR
__
was, at the time of [the] injuries, engaged in
navigation."
Id. (Emphasis and capitals supplied.)
__
Thus, according to the Fifth Circuit a structure not
___
designed for transportation must be in actual navigation to be a
________ __________________
vessel. See also Cook v. Belden Concrete Products, 472 F.2d 999, 1002
________ ____ ________________________
(5th Cir.), cert. denied, 414 U.S. 868 (1973). If it is designed for
____ ______ ___________
transportation it does not necessarily have to be in actual
___
navigation. I think it relevant to note that in discussing these
standards, as applied to "a variety of special purpose structures,"
the Binnings court considers "the purpose for which the craft was
________ ______________________________________
constructed and the business in which it is engaged," Binnings, 741
___________ ________
F.2d at 829 (emphasis added) (quoting Blanchard v. Engine & Gas
_________ ______________
Compressor Services Inc., 575 F.2d 1140, 1142 (5th Cir. 1978) (citing
_________________________
The Robert W. Parsons, 191 U.S. 17, 30 (1903))), as more conclusive
______________________
than "the size of the structure, its ability to float, the permanence
of its fixation to the shore or bottom, and the fact of its movement
or its capability of movement across navigable waters . . ." Id.
__
(footnotes omitted). As examples of special purpose structures held
to be vessels, the Binnings court lists a submersible oil storage
________
vessel facility (Hicks v. Ocean Drilling & Exploration Co., 512 F.2d
_____ ________________________________
817 (5th Cir.), cert. denied, 423 U.S. 1050 (1976)), a submersible
____ ______
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drilling barge (Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir.
______________________ ____
1966)), and a mobile drilling platform with retractable legs (Offshore
________
Co. v. Robison, 266 F.2d 769 (5th Cir. 1959)).11
___ _______
The new standard in the majority opinion is stated as
follows:
[I]f a barge or other float's "purpose or
primary business is not navigation or
___
commerce," then workers assigned thereto
for its principal shore enterprise are to
be considered seamen only when it is in
actual navigation or transit.
See majority opinion, ante at 8. Although this rule purports to
___ ____
follow Binnings, particularly when read in context with the rest of
________
the majority opinion, it is clearly more restrictive than Binnings.
________
It downgrades, if not totally eliminates, the "designed purpose of the
structure" standard and substitutes actual navigation as the sole
requirement. This goes far beyond what the Fifth Circuit, or for that
matter any circuit, has decided, and will create a new split rather
than mend old ones.
In addition to those already stated, there are, in my
view, other important reasons for not adopting this new rule.
Stare decisis. The Bennett rule has been in effect since
_____________ _______
1975. It is well understood and has been followed without undue
difficulty by the bar and district courts. With due respect, I do not
believe the new rule is a sufficient enough reason to depart from this
____________________
11 Although the majority states in its draft that the language in
Offshore "did not survive [Binnings]," and that Offshore was
________ ________ ________
"relegated to a footnote [in Binnings]," ante at 7, I find the
________ ____
"designed to float on water" language in Offshore to be very much
________
alive in the second Binnings rule quoted above.
________
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established precedent, at the probable cost of creating uncertainty
that will lead to an influx of litigation.
The Bennett rule is a better rule. The Bennett rule more
__________________________________ _______
accurately reflects the general maritime law, as is seen from the
definition of the term "vessel" in the 24 statutes cited. Applying
these definitions to the present situation would promote uniformity in
maritime law. In contrast, the new standard will lead to much
uncertainty as the same object may be a vessel or non-vessel from
moment to moment. The same person, doing the same work, on the same
object will receive different legal treatment depending on a totally
fortuitous condition. This balkanization of maritime law will be for
naught in resolving the owners' insurance problems, as they will still
need protection against Jones Act claims for those instances in which
the object is legally transformed into a vessel by reason of its
movement.
As stated above, the new rule creates unpredictability
and haphazardness in its application. For example, does "actual
navigation" mean that once the barge comes to a stop and is anchored
or docked, it no longer is a "vessel" even if the condition causing
the casualty was created or arose while the now non-vessel was in
movement? What about the inverse situation? What principled reason
is there for distinguishing between a barge and an ocean liner once it
__
is anchored or tied to the dock? Under Wilander a dance instructor
________
teaching passengers the "cha-cha-cha" aboard an ocean liner tied to
the dock is a "seaman," but under the new rule, appellee, who actually
does much more traditional seaman's work, would be denied Jones Act
-25-
protection because the BETTY F is secured to its spud anchors. What
logical reason is there for such a distinction and how would such a
rule be framed if it is to make sense? Is the BETTY F "in actual
navigation" every night when it is moved away from the bridge or in
the mornings when it is moved again alongside? The ambivalence raised
by the new rule is endless. Given such uncertainties, is it prudent
to change our present rule absent firmer guidance from the Supreme
Court?
Finally, given the factual record in this case, I cannot
see how even under the new standard, the majority can conclude, as a
matter of law, that the BETTY F is not a "vessel." At the very least,
the case should be retried on all issues, using the new standard on
the Jones Act cause of action as well.
A vessel is a vessel is a vessel is a vessel.
I respectfully dissent.
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APPENDIX
________
a. Rules of Construction Act (l U.S.C. 3):
The word "vessel" includes every description
of watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water. (Emphasis
supplied.)
b. The Shipping Act (46 U.S.C. 2101 (45)):
["V]essel" has the same meaning given that
term in Section 3 of Title 1.
c. Merchant Marine Act of 1920 (46 U.S.C. 801):
[A]ll water craft and other artificial
contrivances of whatever description and, at
whatever stage of construction, whether on
the stocks or launched, which are used or are
_____________________
capable of being or are intended to be used
_____________________________________________
as a means of transportation on water.
(Emphasis supplied.)
d. International Navigational Rules of 1977 (33
U.S.C. 1601(1)):
"Vessel" means every description of
watercraft, including nondisplacement craft
and seaplanes, used or capable of being used
_________________________
as a means of transportation on water.
(Emphasis supplied.)
e. The Inland Navigation Rules Act of 1980, Rule
3(a) (33 U.S.C. 2003(a)):
The word "vessel" includes every description
of watercraft, including nondisplacement
craft and seaplanes, used or capable of being
___________________
used as a means of transportation on water.
____
(Emphasis supplied.)
f. Public Health Service Act (42 U.S.C. 201(i)):
The term "vessel" includes every description
of watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water, exclusive of
aircraft and amphibious contrivances.
(Emphasis supplied.)
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g. Excise Taxes Act (26 U.S.C. 5688(c)):
["V]essel" includes every description of
watercraft used, or capable of being used, as
________________________
a means of transportation in water or in
water and air; . . . (Emphasis supplied.)
h. Whaling Convention Act (16 U.S.C. 916(e)):
Vessel: The word "vessel" denotes every
kind, type or description of watercraft or
contrivance subject to the jurisdiction of
the United States used, or capable of being
____________________
used, as a means of transportation.
____
(Emphasis supplied.)
i. Neutrality Act of 1939 (22 U.S.C. 456(c)):
The term "vessel" means every description of
watercraft and aircraft capable of being used
_____________________
as a means of transportation on, under, or
over water. (Emphasis supplied.)
j. Navigation Act of 1974 (33 U.S.C. 1502 (19)):
["V]essel" means every description of
watercraft or other artificial contrivance
used as a means of transportation on or
through the water.
k. Deepwater Ports Act (33 U.S.C. 1502(19)):
["V]essel" means every description of
watercraft or other artificial contrivance
used as a means of transportation on or
through the water.
l. The Oil Pollution Act of 1990 (33 U.S.C.
2701(37)):
["V]essel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water, other than a public
vessel. (Emphasis supplied.)
m. The Sentencing Reform Act (18 U.S.C. 3667):
As used in this section "vessel" includes
every description of watercraft used, or
__
capable of being used as a means of
_________________________
transportation in water or in water and air.
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(Emphasis supplied.)
n. The Communications Act of 1934 (47 U.S.C.
153(w)(1)):
["V]essel" includes every description of
watercraft or other artificial contrivance,
except aircraft, used or capable of being
_________________
used, as a means of transportation on water,
____
whether or not it is actually afloat.
(Emphasis supplied.)
o. The Tariff Act of 1930 (19 U.S.C. 1401(a)):
The word "vessel" includes every description
of watercraft or other contrivance used, or
__
capable of being used, as a means of
_________________________
transportation in water, but does not include
aircraft. (Emphasis supplied.)
p. The Interstate Act Against Importation and
Exportation of Motor Vehicles, Vessels and
Aircraft Act. (18 U.S.C. 553(c)(3)):
["V]essel" has the meaning given that term in
Section 401 of the Tariff Act of 1930 (19
U.S.C. 1401, ante).
____
q. The Comprehensive Environmental Response,
Compensation and Liability Act of 1980
(CERCLA) (42 U.S.C. 9601(28)):
The term "vessel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water.) (Emphasis
supplied.)
r. The Anti-Gambling Act (18 U.S.C. 1081):
The term "vessel" includes every kind of
water and aircraft or other contrivance used
or capable of being used as a means of
____________________________
transportation on water, or on water and in
the air, as well as any ship, boat, barge, or
_____
other watercraft or any structure capable of
floating on the water. (Emphasis supplied.)
s. The Federal Ship Mortgage Insurance Act
(46 U.S.C. 1271(b)):
The term "vessel" includes all types, whether
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in existence or under construction, of
passenger cargo and combination passenger-
cargo carrying vessels, tankers, tugs,
towboats, barges, dredges and ocean thermal
______
energy conversion facilities or plant ships
which are or will be documented under the
laws of the United States, . . . (Emphasis
supplied.)
t. The Contraband Seizure Act (49 U.S.C.
787(a)):
The term "vessel" includes every description
of watercraft or other contrivance used, or
capable of being used, as means of
___________________________
transportation in water, but does not include
aircraft. (Emphasis supplied.)
u. The Antifouling Paint Control Act of 1988
(33 U.S.C. 2402(11)):
The term "vessel" includes every description
of watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water. (Emphasis
supplied.)
v. The Interstate Commerce Act (49 U.S.C.
10102(28)):
The term vessel means a watercraft or other
artificial contrivance that is used, is
__
capable of being used, or is intended to be
_____________________________________________
used, as a means of transportation by water.
____
(Emphasis supplied.)
w. The Submarine Cable Act (47 U.S.C. 30):
[T]he term vessel shall be taken to mean
every description of vessel used in
navigation, in whatever way it is propelled .
. .
x. The Federal Water Pollution Control Act (33
U.S.C. 1321(a)(3)):
["V]essel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means of
_____________________
transportation in water other than a public
vessel. (Emphasis supplied.)
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No. 90-1957
ROCCO P. DIGIOVANNI, JR.,
Appellee,
v.
TRAYLOR BROTHERS, INC.,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
Campbell, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
Torruella, Selya and Cyr, Circuit Judges.
______________
____________________
Andrew Rothschild with whom Eric D. Paulsrud, John D.
__________________ __________________ _________
Husmann, and Lewis, Rice & Fingersh were on brief for appellant.
_______ ______________________
David B. Kaplan with whom Thomas M. Bond, The Kaplan/Bond
_________________ _______________ _______________
Group, Paul Gallogly, and Lovett, Schefrin, Gallogly & Harnett were on
_____ _____________ ____________________________________
brief for appellee.
____________________
____________________
OPINION EN BANC
____________________
ALDRICH, Senior Circuit Judge. Defendant petitions
____________________
-31-
for rehearing on the single issue of Jones Act recovery,
renewing its claim that plaintiff, a member of the
carpenter's union, is not a seaman, and the barge, the BETTY
F, was not to be regarded as a vessel, particularly in light
of a number of recent cases, notably in the Fifth Circuit.
It asks us to reconsider our holding in Bennett v. Perini
_______ ______
Corp., 510 F.2d 114 (1st Cir. 1975). Defendant asserts that,
_____
by speaking in terms of vessels, we have extended the concept
of special protection needed for seamen exposed to the perils
of the sea to workers who are not even theoretically so
endangered. This, allegedly, is a carry-over of outmoded
Supreme Court decisions, post. We will reconsider.
____
Briefly, the facts are these. The BETTY F was a
barge, 100 feet in length, with a 40 foot beam and a raked
bow and stern, and with nautical equipment, such as
navigation and anchor lights. In all respects it met the
commonly understood characteristics of a vessel, and, indeed,
was inspected by the Coast Guard. It had no means of self-
propulsion, except that positional movement could be achieved
by manipulating its spud anchors. Its current use was to
float at the Jamestown, Rhode Island, bridge, bearing a crane
that was being used for bridge construction. Its permanent
station was Davisville, Rhode Island, from which it was
towed, by a tug, from time to time, to perform various shore
jobs. It had been at the Jamestown bridge for a month. It
-32-
was positioned about the bridge, and moved away from the
pilings at night, to prevent damage.
Plaintiff's principal duty was to handle a tag line
to guide the crane, but he also did maintenance work, such as
painting, and tended lines. Although he was attached to the
BETTY F, at the time of his injury he was standing on the
deck of a supply barge in order better to manipulate the
line. Its deck proved to be slippery, and he fell. The
supply barge was in general use to carry supplies, but also
served as a work platform.
The district court put special questions to the
jury as between plaintiff being a Jones Act seaman and a
harbor worker, and stated it could find the former -- with
greater rights -- if he was attached to a vessel. Following
Bennett, it stated, "A special purpose structure not usually
_______
employed as a means of transport by water, but designed to
float on water may also be considered a vessel," and said
nothing about its current use. The jury answered that
plaintiff was a seaman, and defendant, having duly saved its
rights, appealed. A panel, unanimous because it felt bound
by Bennett, affirmed. This petition followed.
_______
The Jones Act itself, 46 U.S.C. 688, does not use
the words ship and vessel, and speaks only of seamen, but
courts have naturally spoken of seamen in terms of ships,
vessels, and voyages. Thus in the recent case of McDermott
_________
-33-
International, Inc. v. Wilander, 111 S. Ct. 807, 814 (1991),
___________________ ________
the Court repeated the definition given in Warner v. Goltra,
______ ______
293 U.S. 155 (1934), "a seaman is a mariner of any degree,
one who lives his life upon the sea. It is enough that what
he does affects 'the operation and welfare of the ship when
she is upon a voyage.'" Warner, 293 U.S. at 157 (quoting The
______ ___
Buena Ventura, 243 F. 797, 799 (S.D.N.Y. 1916)); see also,
_____________ ___ ____
Norton v. Warner Co., 321 U.S. 565, 572 (1944). And, of
_____________________
course, a vessel does not cease to be a vessel when she is
not voyaging, but is at anchor, berthed, or at dockside. See
___
Powers v. Bethlehem Steel Corp., 477 F.2d 643, 648 (1st Cir),
_______________________________
cert. denied, 414 U.S. 856 (1973). This practical fact
_____ ______
availed the Court to hold that stevedores substituting for
seamen in doing conventional seamen's work when the vessel
was docked should equally come under the Act. Seas Shipping
_____________
Co. v. Sieracki, 328 U.S. 85 (1946). The reasoning was that
___ ________
the stevedore was "incurring a seaman's hazards." Id. at 99.
___
In point of fact this could be said to be making the
exception the rule. Seamen who go down to the sea in ships
incur special hazards on the sea, not at dockside.12 The
____________________
12. Because Wilander has now quoted it with approval, we
________
repeat Chief Justice Stone's dissent in Sieracki. "Seamen
________
are in some sort co-adventurers upon the voyage; and lose
their wages upon casualties, which do not affect artisans at
home. They share the fate of the ship in cases of shipwreck
and capture. They are liable to different rules and
sufferings from landsmen." 328 U.S. at 105 (citing Reed v.
____
Canfield, 20 F. Cas. 426, 428 (C.C.D. Mass. 1832)).
________
-34-
reasoning that favors not interrupting their coverage during
a temporary cessation of those risks does not equally favor
opening the coverage to workers who substitute for seamen
only during non-hazardous, non-voyage, intervals. This,
however, was once law.13 The battle between the Court and
Congress, met by revisions in the Longshore and Harbor
Workers' Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as
amended, 33 U.S.C. 901-950, detailed in Wilander, 111 S.
________
Ct. at 810-13, was won by Congress. Longshoreman and seaman
status are now mutually exclusive. 111 S. Ct. at 817. "All
___
who work at sea in the service of a ship face those
__________________
particular perils to which the protection of maritime law,
statutory as well as decisional, is directed." Id. (emphasis
___
supplied). We followed that concept to a considerable extent
in Powers, 477 F.2d 643, ante, but we did so in terms of
______ ____
whether the structure was a vessel. The structure on which
plaintiff was working was a raft, made of 12 x 12 timbers
bonded together, used as a floating platform for pile workers
and carrying sandblasting equipment and forms under piers to
be placed around piles. We held it was not a vessel in spite
____________________
13. One member of this panel still recalls Gutierrez v.
_____________
Waterman Steamship Corp., 373 U.S. 206 (1963), where we were
________________________
reversed for denying the warranty of seaworthiness to a
longshoreman who never set foot on the ship, but who was
injured on the dock by unloaded cargo that had been
improperly packaged; a defect held to make the ship
unseaworthy, to plaintiff's benefit. Justice Harlan
dissented. Gutierrez is now flotsam.
_________
-35-
of "occasional 'voyages' -- when towed by workboat from one
pier to another."14 Id. at 647.
___
Rafts, of course, may be designed or
used 'to encounter perils of navigation'
. . . . But we cannot reasonably
describe the present raft as other than a
floating stage. Even with men and
equipment on it, its movement, amounting
________
mostly to a positioning under the pier
incidental to its intended use, was not
_________________________________________
navigation.
__________
Id. (emphasis supplied). Later in the opinion, we remarked
___
that "the law of admiralty [is] 'designed and molded to
handle problems of vessels relegated to ply the waterways of
the world.'" ID. at 648 (citing Executive Jet Aviation, Inc.
___ ____________________________
v. City of Cleveland, 409 U.S. 249, 269 (1972)). Two years
_________________
thereafter, however, we moved a long way from a waterway,
holding that a pier worker who fell from a pier onto another
land-based platform could recover under the Jones Act because
the barge on which he also worked, Scow 101, could be found
to be a vessel. Bennett v. Perini Corp., 510 F.2d 114 (1st
_______ ____________
Cir. 1975). In a comparatively brief discussion, we
distinguished Powers, saying that Scow 101's
______
seagoing range and versatility are
greater. . . . To be a vessel, the
purpose and business must to some
________
reasonable degree be the 'transportation
_________________________________________
of passengers, cargo, or equipment from
place to place across navigable waters.'
Powers at 477 F.2d 647. A major function
______ ________________
of Scow 101 appears to have been the
______________________
____________________
14. "It had . . . also been towed through Boston harbor to
other jobs." 477 F.2d at 645.
-36-
transportation of the structural
______________
materials and tools used to build the
bridge and the crane across the navigable
waters of Narragansett Bay.
510 F.2d at 116 (emphasis supplied).
Having determined that because of its "major
function" of transportation, the scow was a vessel, the
Bennett court faced the question whether plaintiff
_______
"'contributed to the function . . . or to the accomplishment
of its mission.'" Id. (quoting Offshore Co. v. Robison, 266
___ ____________ _______
F.2d 769, 779 (5th Cir. 1959). We noted that, as a
carpenter, plaintiff spent much of his time on the pier.
However,
there was evidence that a major part of
the carpentry work was regularly done on
the deck of Scow 101, where the
additional space provided a necessary
platform for constructing and reworking
the panels.
. . . . .
[T]he 'mission' of Scow 101 was to
provide a support base for the
construction of the bridge piers.
Appellant's duties, if not obviously
maritime, related to that function and
were arguably essential for its
satisfactory performance.
510 F.2d at 117. Thus while Powers' raft's transportation of
_______
sandblasting equipment from pier to pier, and "through Boston
Harbor to other jobs," was "incidental," to its "intended
use," Scow 101's transportation of a crane across Narraganset
-37-
Bay was "to some reasonable degree" a "major function," and
made the pier worker a seaman.
This produced a difficult dividing line. It is
particularly troublesome in light of the fact that plaintiff
Bennett was not a user of the crane, and thus connected with
what was transported, but was simply using the floating deck
space, comparable to the Powers raft, which this court
______
described as "an extension of the pier, itself an extension
of the land." 477 F.2d at 648. Nor, if transportation --
the voyage -- is the key to maritime responsibility, did the
Bennett court make any mention of the length of jobs, and
_______
consequent voyage frequency. What we did was quote the
amorphous wording of the Offshore Company opinion, "The
_________________
'injured workman [can go to the jury if he] was assigned
permanently to a vessel (including special purpose structures
not usually employed as a means of transport by water but
designed to float on water).'" 510 F.2d at 115 (quoting
Offshore, 266 F.2d at 779), rather than the language of
________
Powers stressing "special purpose floating structures whose
______
function requires exposure to the hazards of the sea." 477
F.2d at 647.
This language from Offshore did not survive. Many
________
decisions later, in Bernard v. Binnings Construction Co. 741
_______ _________________________
F.2d 824 (5th Cir. 1984), Offshore was relegated to a
________
footnote. Floating is not enough. Id. at 828 n.13. Nor is
___
-38-
"capability of movement across navigable waters." Id. at
___
829. Rather, the test is whether it
was designed[15] or used primarily for
the transportation of cargo, equipment or
persons across navigable waters or was,
at the time of Bernard's injuries,
engaged in navigation.
Id. The court also noted
___
that a structure whose purpose or primary
business is not navigation or commerce
___
across navigable waters may nonetheless
satisfy the Jones Act's vessel
requirement if, at the time of the
worker's injury, the structure was
actually in navigation.
Id. (emphasis in original).
___
This standard, as applied in a number of other
Fifth Circuit cases,16 looking to use, rather than simply
to the physical characteristics of the structure, does appear
a reasonable resolution of Jones Act principles as against
mere definitions of vessels to convert longshoremen into
seamen. A worker becomes a seaman not by reason of the
physical characteristics of the structure to which he is
attached, but because its being operational "in navigation"
exposes him to "a seaman's hazards." He is not exposed by
____________________
15. Even this word was uncalled for. Current use, not
previous purpose, should be the test. Ducrepont v. Baton
_________ _____
Rouge Marine Enters., Inc., 877 F.2d 393, 396 (5th Cir.
____________________________
1989).
16. E.g., Gremillion v. Gulf Coast Catering Co., 904 F.2d
____ __________ ________________________
290, 293 (5th Cir. 1990); see also Hurst v. Pilings &
___ ____ _____ __________
Structures, Inc., 896 F.2d 504 (11th Cir. 1990).
________________
-39-
what the vessel did in the past, or by its future potential,
and to give him these special benefits by mechanical
definitions without the exposure is misplaced generosity as
in Gutierrez, n.2, ante. Just as we relied on Offshore in
_________ ____ ________
the past, we believe we should now accept the Fifth Circuit's
improved version. In sum, if a barge, or other float's
"purpose or primary business is not navigation or commerce,"
___
then workers assigned thereto for its shore enterprise are to
be considered seamen only when it is in actual navigation or
transit.
That there should be a varying status designation
depending on the activity at the moment is not a novel
concept. In Victory Carriers, Inc. v. Law, 404 U.S. 202
_______________________ ___
(1971), a longshoreman who, because unloading, would have had
unseaworthiness recovery under the Jones Act, per Gutierrez,
_________
for a ship-caused injury, was injured instead using the
stevedore's equipment. Recovery was not allowed. We believe
our division of responsibility to the activity equally
appropriate.
Our rule is also in entire accord with Wilander's
________
language quoted in the fifth paragraph of this opinion and in
n.1, ante. In holding that every member of the ship's
____
complement comes within the Jones Act, Wilander referred to
________
the "voyage," and "vessels in navigation." It spoke not in
terms of the ship, but of "[a]ll who work at sea in the
-40-
service of a ship [and] face those particular perils to which
the protection of maritime law, statutory as well as
decisional, is based." 111 S. Ct. at 817.
Again, more recently in Southwest Marine, Inc. v.
_______________________
Gizoni, 112 S. Ct. 486, 494 (1991), where the plaintiff was
______
working on a floating platform, the Court referred to the
opinion below, saying,
The Ninth Circuit concluded that
questions of fact existed regarding
whether the floating platforms were
vessels in navigation, and whether Gizoni
_____________________
had sufficient connection to the platform
to qualify for seaman status.
(Emphasis supplied.) What is particularly interesting is the
record which the Court held presented a jury question on each
of these issues. It appeared from the opinion below, Gizoni
______
v. Southwest Marine, Inc., 909 F.2d 385 (9th Cir. 1990), that
______________________
defendant was a ship repairer who used floating platforms to
support the workmen, and to carry materials and equipment.
Plaintiff was on such a platform engaged in transporting a
rudder to a ship when his foot went through the deck.
Although plaintiff was a rigging foreman, his duties included
handling lines, and he occasionally served as a lookout and
gave maneuvering signals to the tugboat operator. 909 F.2d
at 387. The platform, in other words, at the time of
plaintiff's injury, was engaged in transportation, and
plaintiff was a participant in that operation.
-41-
Under our rule we would be more favorable to the
worker than was the Gizoni Court, if its language as to there
______
being an issue of fact be regarded as a ruling. Clearly we
would have felt the worker within the exception even if,
during actual repair work to a floating ship, there was no
navigation or commerce. But what is even more clear is that
the present plaintiff does not measure up to Gizoni. The
______
BETTY F had transported nothing for a month since it left
defendant's headquarters in Davisville. Since then it was
simply moved about the piers for working convenience, and at
night for safety. This was hardly navigation or commerce,
and did not diminish the primary nature of the platform's
shore use and purpose. See Ellender v. Kiva Construction &
___ ________ ____________________
Engineering, Inc., 909 F.2d 803, 807 (5th Cir. 1990).
__________________
Correspondingly, that plaintiff occasionally adjusted lines
for pier movement and the rise and fall of the tides, did not
expose him to the risks of a voyage.
There is a suggestion that the supply barge, on
which plaintiff was injured, was operating as a vessel. This
barge was in general use, and was not "attached" to the BETTY
F, and plaintiff was not "assigned permanently" thereto.
Bennett, 510 F.2d at 116. Nor did he use it except as a work
_______
platform. Whether plaintiff is to be considered a seaman
must depend upon the BETTY F.
-42-
A final word. Our denying Jones Act recovery does
not end this case. The court put alternate questions to the
jury; posing simple negligence under the LHWCA if the jury
did not answer the Jones Act questions favorably. Since it
did answer favorably, it did not answer the alternate
negligence questions. In all fairness, there should be a new
trial, with that heavier burden.
Reversed and remanded for further proceedings
___________________________________________________
consistent herewith.
___________________
Dissent follows.
-43-
TORRUELLA, Circuit Judge, with whom BOWNES, Senior
_____________ ______
Circuit Judge, joins (Dissenting). William Shakespeare tells
_____________
us in a famous passage from Romeo and Juliet that labels are
_________________
not important, but rather that content is what counts.17
In more recent times, Gertrude Stein had similar advice.18
Although poetic philosophy seems far removed from the hard
world of maritime torts, I believe that the counsel found in
those quotations has definite relevance to the issue that
separates my views from those of my colleagues in the
majority.
Notwithstanding the lack of a statutory definition
for the term "vessel" in the Jones Act, 46 U.S.C. 688,19
at least twenty-seven (27) federal maritime or maritime
related laws20 define "vessel" in such manner as to clearly
include the BETTY F within the scope of their description.
The BETTY F is thus a "vessel" under the Shipping Act, 46
____________________
17 "What's in a name? That which we call a
rose
By any other name would smell as sweet."
Shakespeare, William, Romeo and Juliet. II, ii, 43.
________________
18 "Rose is a rose is a rose is a rose."
Stein, Gertrude, Sacred Emily (1913).
____________
19 46 U.S.C. 688:
Any seaman who shall suffer personal
injury in the course of his employment
may, at his election, maintain an action
for damages at law, with the right of
trial by jury.
20 See Appendix to this opinion.
___
-44-
U.S.C. 2101(45), and the Merchant Marine Act, 46 U.S.C.
801. It is covered as such by the International and Inland
Rules of the Road, 33 U.S.C. 1601(1), 2003(a), can be
mortgaged under the Federal Ship Mortgage Insurance Act, 46
U.S.C. 1271(b), must have its bottom painted within the
restrictions of the Antifouling Paint Control Act, 33 U.S.C.
2401(11), and even falls within the definition found in the
Sentencing Guidelines Act, 18 U.S.C. 3615. In contrast, I
have found no federal maritime statute which would label the
BETTY F anything other than a vessel. It would seem that the
weight of these Congressional pronouncements alone would be
enough to sustain appellee's case if for no other reason than
by its recognition of the time honored doctrine of in pari
_______
materia. See McDermott Int'l, Inc. v. Wilander, 111 S. Ct.
_______ ___ ______________________ ________
807, 811 (1991); Morissette v. United States, 242 U.S. 246,
__________ _____________
263 (1952); United States v. Porter, 591 F.2d 1048, 1053 (5th
_____________ ______
Cir. 1979).
Because "[t]he inquiry into seaman status is of
necessity fact specific: it will depend on the nature of the
vessel, and the employee's precise relation to it," Southwest
_________
Marine, Inc. v. Gizzoni, ___ S. Ct. ___ (1991); McDermott
____________ _______ _________
Int'l, Inc. v. Wilander, 111 S. Ct. at 818. I believe that
____________ ________
it is useful to spell the facts out in somewhat greater
detail than is done in the majority opinion.
THE FACTS
THE FACTS
_________
-45-
Appellee was injured aboard a supply barge while
tending tag lines to a crane aboard the barge to which he was
assigned, the BETTY F. These two barges worked together with
the supply barge not only carrying supplies to be used aboard
the BETTY F, but more significantly, transporting part of
BETTY F's crane at the time of the accident.
The BETTY F is a typical steel-hulled barge designed
to transport cargo or act as a work platform. It is 100 feet
in length overall, has a 40 foot beam, raked bows and stern,
and carries a roll-on crane in its aft area. It has toilet
facilities for the crew, and what amounts to a galley in the
form of an enclosed cafeteria with a stove and refrigerator,
where the crew regularly take their meals. A tool shack and
a sitting area are located in its bow section. The evidence
presented at trial established that this vessel is routinely
inspected by the Coast Guard for compliance with its
regulations, as well as by surveyors for marine insurance
purposes. Sea trials are also conducted to determine its
seaworthiness and insurability.
As part of its compliance with Coast Guard
requirements, the BETTY F had port and starboard navigation
lights which were used when the barge was moved at night. It
also carried and used anchor signals when not in movement,
white balls which are hoisted when working at anchor in day
time and a white anchor light and whistle for working at
night. As required by regulations, its name and home port,
-46-
"Wilmington, Delaware," are painted on its stern. Pilsom
marks, indicating its load lines, are painted on its sides as
is normally the case with other vessels. By observing these
markings, the BETTY F's ballast is periodically shifted, thus
maintaining a seaworthy trim. The BETTY F was frequently
boarded and inspected by the Coast Guard pursuant to its
legal duty to see that vessels are in compliance with the
maritime laws of the United States. See 14 U.S.C. 2;
___
Dougherty v. Santa Fe Marine Inc., 698 F.2d 232 (5th Cir.
_________ ______________________
1983) (Failure to follow any Coast Guard regulation which is
cause of an injury establishes negligence per se).
The BETTY F was based in Davisville, Rhode Island,
from where it was towed by a tug to its various work
locations, including its workplace at the time of appellee's
injury, a bridge under construction in Jamestown, Rhode
Island. The tug moved the BETTY F "to whatever area we were
going to." It was "moved quite a bit." In August, the month
before appellee's accident, the BETTY F had been outfitted in
Davisville. Although a tug was used to move the BETTY F most
of the time, it also had four spud anchors which could be
used to reposition the barge once on location. At the
location in question, the BETTY F was moved away from the
bridge's pilings every night to prevent damage by the tidal
surge.
Appellee, as well as the rest of the BETTY F's crew,
were transported to work each day from Davisville by a crew
-47-
boat. Although appellee's principal duties on the BETTY F
were as a tagman for the crane, his work also included
typical able seaman's duties aboard a steel vessel:
chipping, painting and providing basic maintenance to the
hull, tending mooring lines, fendering the vessel, setting
and resetting the anchors, moving the barge away from the
bridge every night, and ballasting the hull. When moved by
the tug, the BETTY F's crew, including appellee, worked
together with the tug's crew and under the tug captain's
orders. In fact, many times appellee would actually be
physically aboard the tug during these operations.
As previously indicated, appellee was working on the
supply barge when he was injured. This barge is an integral
part of the BETTY F's operation, and has no separate name or
identification. It is 80 feet in length and has a 40 foot
beam. Towed by a tug, it traveled back and forth on an
almost daily basis from its main base in Davisville, bringing
materials and equipment to the BETTY F.
The record contains additional information, which
although admittedly less relevant, adds a definite maritime
flavor to the activities aboard the BETTY F. At least part
of the BETTY F's crew was composed of former merchant seamen.
The crew wore life jackets while working aboard the BETTY F.
The lingua franca of the crew/witnesses with reference to the
_____________
BETTY F is seaborn in nature, i.e., "crew," "aboard," "load
lines," "ballast," "anchors," "bow," "stern," "forward,"
-48-
"aft," "alongside," "midships," "deck" and "ashore." This
terminology is found throughout the record. Although it
might be argued that this is stretching a self-serving
argument, I point out that this language was not only used by
appellee's witnesses but also by appellant's attorney
throughout the trial, and his expert witness, Davis C. Du
Bois, who at all times during his testimony referred to the
BETTY F as a "vessel." I suggest that this conduct reflects
an acceptance by appellant of an undeniable reality, at a
time when the status of the BETTY F as a vessel was taken for
granted.21 In fact, all who dealt with the BETTY F, the
Coast Guard, its crew, its owners, that is, all except this
Court, treated the BETTY F as if it were a vessel, not
something else. Lest we forget, no one argues that the BETTY
F is physically or structurally any different than the
thousands of similar barges which ply the oceans of the
world, or that the BETTY F is incapable of engaging in such
commerce. Rather, the downgrading of the BETTY F to non-
vessel status seems to be anchored on the frequency, or more
accurately, the infrequency, of its voyaging.
DISCUSSION
DISCUSSION
__________
In my opinion the majority's change in course fails
to take into account the Supreme Court's traditionally
____________________
21 I might add, only in half jest, that people usually do
not name non-vessels. This seems to indicate that the BETTY
F's owners considered it enough of a "vessel" to treat it in
a traditional vessel fashion.
-49-
liberal construction in deciding who is a "seaman" under the
Jones Act. See Cox v. Roth, 348 U.S. 207, 210 (1954). We
___ ___ ____
find the most recent expression of this unswerving trend in
the Court's unanimous decisions in Southwest Marine, Inc. v.
______________________
Gizzoni, supra, and McDermott Int'l Inc. v. Wilander, 111 S.
_______ _____ ____________________ ________
Ct. at 814 ("[t]he Jones Act is a remedial statute").
In Wilander, Justice O'Connor clearly forecasts the
________
outcome of our present case in her discussion of the need for
the concept of a "vessel" to evolve with changing technology.
Wilander, 111 S. Ct. at 812. Also of prime importance to the
________
present controversy is the Court's citation, with apparent
approval, of Offshore Co. v. Robinson, 266 F.2d 769 (5th Cir.
____________ ________
1959), from which we adopted the rule in Bennett v. Perini
_______ ______
Corp., 510 F.2d 114 (1st Cir. 1975), which the majority now
_____
discards. Id. at 809. The "seaman" in Wilander, was a paint
__ ________
foreman whose duties "consisted primarily of supervising the
sandblasting and painting of various fixtures and piping
located on oil drilling platforms." Wilander, 111 S. Ct. at
________
809. Wilander was injured on one such platform. At the
____________________________________________
time, he was assigned to a "paint boat" that contained
equipment used in sandblasting and painting the platforms.
The drilling platforms were attached to the ocean floor in a
________________________________________________________
semi-permanent manner.
The facts in Gizzoni sound equally familiar. Several
_______
floating work platforms were also involved, including a
pontoon barge, two float barges, a rail barge, a diver's
-50-
barge, and a crane barge. Gizzoni, 60 U.S.L.W. at 4021.
___________ _______
Gizzoni was a rigging foreman on these working platforms and
rode them as they were towed into place. The platforms were
used to move equipment and supplies around a shipyard and on
________________________
and off vessels under repair. These platforms had no power,
_____________________________
means of steering, navigation lights, navigating aids or
living facilities. They were moved by tugs, which positioned
them as needed. Gizzoni occasionally served as lookout and
handled lines from the crew. He was injured while on a
platform being used to transport a rudder from the shipyard
_________________
to a floating drydock in that yard.
__________________________________
In Wilander the Court said that the issue of who is a
________
"seaman" under the Jones Act [i.e., an employee who
contributes to the functions or mission of a vessel], is
better characterized as a mixed question of law and fact than
as a pure question of fact for the jury. Wilander, 111 S.
________
Ct. at 818. But if there are questions of fact "regarding
whether the floating platforms were vessels in navigation,"
these must be submitted to the jury. Gizzoni, 60 U.S.L.W. at
_______
4023. However, if "underlying facts are established, and the
rule of law is undisputed, the issue is whether the facts
meet the statutory standard." Wilander, 111 S. Ct. at 818.
________
"[S]ummary judgment as a directed verdict is mandated where
the facts and the law will reasonably support only one
conclusion." Id.
__
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As I understand appellant's position, particularly
considering the record before the district court, the facts
as stated ante are not substantially in dispute. See
____ ___
Appellant's Brief at 3-7; Petition for Rehearing, at 4.
Appellant did not present any evidence challenging appellee's
witnesses and the facts dealing with the BETTY F. To this we
must add that the BETTY F and the supply barge (and perhaps
the crew boat) are a "group of vessels" (see Gizzoni, 60
___ _______
U.S.L.W. at 4021). Although I believe that as a matter of
law it could be ruled that appellee was injured while working
on a "vessel," I am willing for present purposes, to concede
that it is still arguably a jury question. Id. We thus look
__
to the new legal standard established by the majority.
Under Bennett v. Perini Corp., 510 F.2d 114, 116 (1st
_______ ____________
Cir. 1975), relied upon by both the district court and the
panel:
To be a vessel, the purpose and business
____________
must to some reasonable degree be the
___________________________
"transportation of passengers, cargo or
equipment from place to place across
navigable waters."
(Emphasis supplied).
The Fifth Circuit's "standard," which is purportedly
adopted by the en banc majority in place of Bennett, is found
__ ____ _______
in Bernard v. Binnings Construction Co., 741 F.2d 824, 829
_______ __________________________
(5th Cir. 1984). In reality the Fifth Circuit sets two
different standards:
a. The first: "[A] structure whose purpose or primary
business is not navigation or commerce across
___
-52-
navigable waters may nonetheless satisfy Jones Act's
vessel requirement if, at the time of the worker's
injury, the structure was actually engaged in
________
navigation."
Id. (Emphasis in the original).
__
b. The second: A Jones Act "vessel" is a structure
which "was designed or used primarily for the
_____________
transportation of cargo, equipment or persons across
navigable waters OR was, at the time of [the]
__
injuries, engaged in navigation."
Id. (Emphasis and capitals supplied.)
__
Thus, according to the Fifth Circuit a structure not
___
designed for transportation must be in actual navigation to
________ _________________
be a vessel. See also Cook v. Belden Concrete Products, 472
________ ____ ________________________
F.2d 999, 1002 (5th Cir. 1973), cert. denied, 414 U.S. 868
____ ______
(1973). If it is designed for transportation it does not
____________ ___
necessarily have to be in actual navigation. I think it
relevant to note that in discussing these standards, as
applied to "a variety of special purpose structures," the
Binnings court considers "the purpose for which the craft was
________ ___________________________________
constructed and the business in which it is engaged," as more
___________
conclusive than "the size of the structure, its ability to
float, the permanence of its fixation to shore or bottom, and
the fact of its movement across navigable waters . . ."
Binnings, 741 F.2d at 829 (footnotes omitted). As examples
________
of special purpose structures held to be vessels, the
Binnings court lists a submersible oil storage vessel
________
facility (Hicks v. Ocean Drilling & Exploration Co., 512 F.2d
_____ ________________________________
817 (5th Cir. 1975)), a submersible drilling barge (Producers
_________
Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966), and a
____________ ____
-53-
mobile drilling platform with retractable legs (Offshore Co.
____________
v. Robinson, 266 F.2d 769 (5th Cir. 1959)).22
________
The new standard in the majority opinion is stated as
follows:
[I]f a barge or other float's "purpose or
primary business is not navigation or
___
commerce," then workers assigned thereto
for its principal shore enterprise are to
be considered seamen only when it is in
actual navigation or transit.
See majority opinion, ante at 8. Although this rule purports
___ ____
to follow Binnings, particularly when read in context with
________
the rest of the majority opinion, it is clearly more
restrictive than Binnings. It downgrades, if not totally
________
eliminates, the "designed purpose of the structure" standard
and substitutes actual navigation as the sole requirement.
This goes far beyond what the Fifth Circuit, or for that
matter any circuit, has decided, and will create a new split
rather than mend old ones.
In addition to those already stated, there are, in my
view, other important reasons for not adopting this new rule.
Stare decisis. The Bennett rule has been in effect
_____________ _______
since 1975. It is well understood and has been followed
without undue difficulty by the bar and district courts.
With due respect, I do not believe the new rule is a
____________________
22 Although the majority states in its draft that the
language in Offshore "did not survive [Binnings]," and that
________ ________
Offshore was "relegated to a footnote [in Binnings]," ante at
________ ________ ____
7, I find the "designed to float on water" language in
Offshore to be very much alive in the second Binnings rule
________ ________
quoted above.
-54-
sufficient enough reason to depart from this established
precedent, at the probable cost of creating uncertainty that
will lead to an influx of litigation.
The Bennett rule is a better rule. The Bennett rule
__________________________________
more accurately reflects the general maritime law, as is seen
from the definition of the term "vessel" in the 27 statutes
cited. Applying these definitions to the present situation
would promote uniformity in maritime law. In contrast, the
new standard will lead to much uncertainty as the same object
may be a vessel or non-vessel from moment to moment. The
same person, doing the same work, on the same object will
receive different legal treatment depending on a totally
fortuitous condition. This balkanization of maritime law
will be for naught in resolving the owners' insurance
problems, as they will still need protection against Jones
Act claims for those instances in which the object is legally
transformed into a vessel by reason of its movement.
As stated above, the new rule creates
unpredictability and haphazardness in its application. For
example, does "actual navigation" mean that once the barge
comes to a stop and is anchored or docked, it no longer is a
"vessel" even if the condition causing the casualty was
created or arose while the now non-vessel was in movement?
What about the inverse situation? What principled reason is
there for distinguishing between a barge and an ocean liner
once it is anchored or tied to the dock? Under Wilander a
__ ________
-55-
dance instructor teaching passengers the "cha-cha-cha" aboard
an ocean liner tied to the dock is a "seaman," but under the
new rule, appellee, who actually does much more traditional
seaman's work, would be denied Jones Act protection because
the BETTY F is secured to its spud anchors. What logical
reason is there for such a distinction and how would such a
rule be framed if it is to make sense? Is the BETTY F "in
actual navigation" every night when it is moved away from the
bridge or in the mornings when it is moved again alongside?
The ambivalence raised by the new rule is endless. Given
such uncertainties, is it prudent to change our present rule
absent firmer guidance from the Supreme Court?
Finally, given the factual record in this case, I
cannot see how even under the new standard, the majority can
conclude, as a matter of law, that the BETTY F is not a
"vessel." At the very least, the case should be retried on
all issues, using the new standard on the Jones Act cause of
action as well.
I respectfully dissent.
-56-
APPENDIX
________
a. Rules of Construction Act (l U.S.C. 3):
The word "vessel" includes every description
of watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water. (Emphasis
supplied.)
b. The Shipping Act (46 U.S.C. 2101 (45)):
["V]essel" has the same meaning given that
term in Section 3 of Title 1.
c. Merchant Marine Act of 1920 (46 U.S.C. 801):
[A]ll water craft and other artificial
contrivances of whatever description and, at
whatever stage of construction, whether on
the stocks or launched, which are used or
___________________
capable of being or are intended to be used
_____________________________________________
as a means of transportation on water.
(Emphasis supplied.)
d. International Navigational Rules of 1977 (33
U.S.C. 1601(1)):
"Vessel" means every description of
watercraft, including nondisplacement craft
and seaplanes, used or capable of being used
_________________________
as a means of transportation on water.
(Emphasis supplied.)
e. The Inland Navigation Rules Act of 1980, Rule
3(a) (33 U.S.C. 2003(a)):
The word "vessel" includes every description
of watercraft, including nondisplacement
craft and seaplanes, used or capable of being
___________________
used as a means of transportation on water.
____
(Emphasis supplied.)
f. Public Health Service Act (42 U.S.C. 201(i)):
The term "vessel" includes every description
of watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water, exclusive of
aircraft and amphibious contrivances.
(Emphasis supplied.)
-57-
g. Excise Taxes Act (26 U.S.C. 5688(c)):
["V]essel" includes every description of
watercraft used, or capable of being used, or
________________________
a means of transportation in water or in
water and air; . . . (Emphasis supplied.)
h. Whaling Convention Act (16 U.S.C. 916(e)):
Vessel: The word "vessel" denotes every
kind, type or description of watercraft or
contrivance subject to the jurisdiction of
the United States used, or capable of being
____________________
used, as a means of transportation.
____
(Emphasis supplied.)
i. Neutrality Act of 1939 (22 U.S.C. 456(c)):
The term "vessel" means every description of
watercraft and aircraft capable of being used
_____________________
as a means of transportation on, under, or
over water. (Emphasis supplied.)
j. Navigation Act of 1974 (33 U.S.C. 1502 (19)):
["V]essel" means every description of
watercraft or other artificial contrivance
used as a means of transportation on or
through the water.
k. Deepwater Ports Act (33 U.S.C. 1502(19)):
["V]essel" means every description of
watercraft or other artificial contrivance
used as a means of transportation on or
through the water.
l. The Oil Pollution Act of 1990 (33 U.S.C.
701(37)):
["V]essel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
_____________________________
transportation on water, other than a public
vessel. (Emphasis supplied.)
m. The Sentencing Guidelines Act (18 U.S.C.
3615):
As used in this section "vessel" includes
every description of watercraft used, or
__
-58-
capable of being used as a means of
_________________________
transportation in water or in water and air.
(Emphasis supplied.)
n. 18 U.S.C. 3667:
As used in this section, "vessel" includes
every description of watercraft used, or
__
capable of being used, as a means of
_________________________
transportation in water or in water and air.
(Emphasis supplied.)
o. The Communications Act of 1934 (47 U.S.C.
153(w)(1)):
["V]essel" includes every description of
watercraft or other artificial contrivance,
except aircraft, used or capable of being
__________________
used, as a means of transportation on water,
____
whether or not it is actually afloat.
(Emphasis supplied.)
p. The Tariff Act of 1930 (19 U.S.C. 1401(a)):
The word "vessel" includes every description
of watercraft or other contrivance used, or
__
capable of being used, as a means of
________________________
transportation in water, but does not include
aircraft. (Emphasis supplied.)
q. The Interstate Act Against Importation and
Exportation of Motor Vehicles, Vessels and
Aircraft Act. (18 U.S.C. 553(c)(3)):
["V]essel" has the meaning given that term in
Section 401 of the Tariff Act of 1930 (19
U.S.C. 1401, ante).
____
r. The Comprehensive Environmental Response,
Compensation and Liability Act of 1980
(CFRCLA) (42 U.S.C. 9601(28)):
The term "vessel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water.) (Emphasis
supplied.)
s. The Anti-Gambling Act (18 U.S.C. 1081):
The term "vessel" includes every kind of
water and aircraft or other contrivance used
-59-
or capable of being used as a means of
____________________________
transportation on water, or on water and in
the air, as well as any ship, boat, barge, or
_____
other watercraft or any structure capable of
floating on the water. (Emphasis supplied.)
t. The Federal Ship Mortgage Insurance Act
(46 U.S.C. 1271(b)):
The term "vessel" includes all types, whether
in existence or under construction, of
passenger cargo and combination passenger-
cargo carrying vessels, tankers, tugs,
towboats, barges, dredges and ocean thermal
______
energy conversion facilities or plant ships
which are or will be documented under the
laws of the United States, . . . (Emphasis
supplied.)
u. The Contraband Seizure Act (49 U.S.C.
787(a)):
The term "vessel" includes every description
of watercraft or other contrivance used, or
capable of being used, as a means of
_________________________
transportation in water, but does not include
aircraft. (Emphasis supplied.)
v. The Antifouling Paint Control Act of 1988
(33 U.S.C. 2401(11)):
The term "vessel" includes every description
of watercraft or other artificial contrivance
used, or capable of being used, as a means of
________________________
transportation on water. (Emphasis
supplied.)
w. The Interstate Commerce Act (49 U.S.C.
10102(28)):
The term vessel means a watercraft or other
artificial contrivance that is used, is
__
capable of being used, or is intended to be
_____________________________________________
used, as a means of transportation by water.
____
(Emphasis supplied.)
x. The Submarine Cable Act (47 U.S.C. 30):
[T]he term vessel shall be taken to mean
every description of vessel used in
navigation, in whatever way it is propelled .
. .
-60-
y. The Federal Water Pollution Control Act (33
U.S.C. 1321(3)):
["V]essel" means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means of
_____________________
transportation in water other than a public
vessel. (Emphasis supplied.)
-61-