WOOLERY v. ATLANTIC CAPES FISHERIES, INC.

[Docket No. 19]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

TRAVIS WOOLERY :

:

Plaintiff : Civil No. 19-16465 (RMB/JS)

:

v. :

: OPINION

ATLANTIC CAPES FISHERIES, INC.:

:

Defendant :

:

APPEARANCES:

MCCANN & WALL, LLC

By: Mark Jaffe, Esq.

13 Wilkins Avenue

Haddonfield, NJ 08033

Counsel for Plaintiff Travis Woolery

LATTI & ANDERSON LLP

By: Jonathan E. Gilzean, Esq.

30-31 Union Wharf

Boston, MA 02109

Counsel for Plaintiff Travis Woolery

REEVES MCEWING, LLP

By: Brian McEwing, Esq.

10 Andrews Lane, P.O. Box 599

Dorchester, NJ 08316

Counsel for Defendant Atlantic Capes Fisheries, Inc.

BUMB, District Judge:

THIS MATTER comes before the Court upon Defendant Atantic

Capes Fisheries, Inc.’s (“Defendant” or “Atlantic Capes”) Motion

to Dismiss or for Summary Judgment (“Motion”) [Dkt. No. 19] of

the claims in Plaintiff Travis Woolery’s (“Plaintiff” or

“Woolery”) Amended Complaint [Dkt. No. 12]. For the reasons set

forth below, Defendant’s Motion will be DENIED.

I. BACKGROUND

In his Amended Complaint, Plaintiff Travis Woolery claims

that he was injured while working on the fishing boat F/V

ALLIANCE. Based on his injury, Plaintiff has asserted claims

against Defendant Atlantic Capes Fisheries, Inc. for:

negligence, both under the Jones Act (Count I) and general

maritime law (Count IV); unseaworthiness (Count II); and

maintenance and cure (Count III).

Atlantic Capes has moved to dismiss Plaintiff’s claims, or

else to seek summary judgment on his claims, based on its

contention that Plaintiff was not working as a seaman when he

was injured. The parties’ submissions in support of and in

opposition to Defendant’s Motion provide additional information

regarding the nature of Plaintiff’s employment, the Defendant’s

ownership of the F/V ALLIANCE, and other matters.1

1 Because Defendant’s Motion is supported by documents and other

submission well outside the allegations contained in Plaintiff’s

Amended Complaint, Defendant’s Motion can only be construed as

one for summary judgment under Fed. R. Civ. P. 56. See S. Cross

Overseas Agencies, Inc. v. Kwong Shipping Grp, Ltd., 181 F.3d

410, 426 (3d Cir. 1999) (explaining that a Court in reviewing a

Rule 12(b)(6) motion must consider only the facts alleged in the

pleadings, the documents attached hereto as exhibits, and

matters of judicial notice); Fed. R. Civ. P. 12(b) (providing

that if any matters outside the pleadings are presented to the

II. LEGAL STANDARD

The Court has subject matter jurisdiction pursuant to the

Merchant Marine Act of 1920 (the “Jones Act”), 46 U.S.C. § 30104

et seq., 28 U.S.C. § 1331, and 28 U.S.C. § 1333.

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In considering a motion for summary

judgment, the district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence “is to be believed and

Court, and the Court does not exclude those matters, a Rule

12(b)(6) motion will be treated as a summary judgment motion

pursuant to Rule 56).

all justifiable inferences are to be drawn in his favor.” Marino

v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)

(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of genuine issue of material fact. Celotex, 477 U.S.

at 323. Once the moving party has met this burden, the

nonmoving party must identify, by affidavits or otherwise,

specific facts showing that there is a genuine issue for trial.

Id. Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 256-57. A party opposing summary

judgment must do more than rest upon mere allegations, general

denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d

228, 232 (3d Cir. 2001).

III. ANALYSIS

A. Plaintiff’s “Seaman” Status (Counts I/II/III)

The parties agree that Plaintiff is only entitled to relief

on Counts I through III if he is found to be a “seaman”, as only

a seaman can claim damages under the Jones Act, or for

unseaworthiness or maintenance and cure. 46 U.S.C. § 30104;

[CASES]. But the Supreme Court tells us that the term “‘seaman’

is a maritime term of art.” McDermott Intern., Inc. v. Wilander,

498 U.S. 337, 342 (1991).

The Court enunciated its test for determining whether an

employee qualifies for seaman status in Chandris, Inc. v.

Latsis, 515 U.S. 347 (1995). The operative test has two prongs.

First, the “employee’s duties must ‘contribut[e] to the

function of the vessel or to the accomplishment of its mission.

Chandris, 515 U.S. at 368 (quoting Wilander, 498 U.S. at 355).

This prong reserves seaman status for “employees who do the

ship’s work,” a threshold which is “very broad.” Chandris, 515

U.S. at 368.

Second, the employee “must have a connection to a vessel in

navigation (or to an identifiable group of such vessels) that is

substantial in terms of both its duration and its nature.” Id.

at 368. The purpose of this “substantial connection” prong is

to separate seamen eligible for Jones Act protection “from those

land-based workers who have only a transitory or sporadic

connection to a vessel in navigation, and therefore whose

employment does not regularly expose them to the perils of the

sea.” Id. at 368. This is consistent with the Jones Act’s

intended purpose, namely “to protect sea-based maritime workers,

who owe their allegiance to a vessel”. Id. at 376.

“[T]he question of who is a ‘member of the crew,’ and

therefore who is a ‘seaman,’ is a mixed question of law and

fact.” Id. at 369. “[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.” Id. at 371

(quoting Willander, 498 U.S. at 356) (emphasis added). “[I]f

reasonable persons, applying the proper legal standard, could

differ as to whether the employee was a ‘member of a crew,’ it

is a question for the jury.” Id. (quoting Willander, 498 U.S. at

356).

Additionally, “the underlying inquiry of whether a vessel

is or is not “in navigation” for Jones Act purposes is a fact-

intensive question that is normally for the jury and not the

court to decide.” Id. at 373. “Removing the issue from the

jury’s consideration is only appropriate where the facts and the

law will reasonably support only one conclusion”. Id. (citing

Anderson v. Liberty Lobby, 477 U.S. 242, 250-51 (1986)). Such a

situation is one “where undisputed facts reveal that a maritime

worker has a clearly inadequate temporal connection to vessels

in navigation”. Id. at 371 (emphasis added).

Defendant asserts that Plaintiff has failed to plead facts

sufficient to support his assertion of seaman status. The Court

examines the parties’ arguments regarding each prong in turn.

1. First Prong: “Doing the Ship’s Work”

As to the first prong, whether Plaintiff “did the ship’s

work” by contributing to the function of the vessel and its

accomplishment of its mission:

Defendant argues that Plaintiff’s duties as a welder

assisting in the conversion of the F/V ALLIANCE from a shrimping

vessel to a scallop fishing vessel did not contribute to the

ship’s function or mission. Plaintiff counters that his work

welding and installing scallop fishing equipment did, in fact,

contribute to the vessel’s new mission as a scallop fishing

vessel. Plaintiff also asserts that during that time he

performed other functions associated with a seaman, such as

maintaining the vessel by “checking the bilge pumps and

tightening lines”, and protecting the vessel and its equipment

by serving as “de facto night watchman”. (Plaintiff’s Opposition

at 15-16.)

A genuine dispute clearly exists regarding the nature and

extent of Plaintiff’s duties in connection with the F/V

ALLIANCE. This is an issue of material fact, because

establishing the nature and extent of Plaintiff’s duties will

serve to establish or eliminate his seaman status, and thus his

ability to bring the claims in Counts I through III. Viewed in

the light most favorable to the Plaintiff, the finder of fact

could draw the reasonable inference that Plaintiff’s duties

consisted of “doing the ship’s work” and thus contributed to the

accomplishment of its mission.

2. Second Prong: Substantial Connection to Vessel “In

Navigation”

As to the second prong, whether Plaintiff had a substantial

connection to a vessel “in navigation”:

Defendant contends that the F/V ALLIANCE was no longer “in

navigation” from the time of its arrival in Cape May, New Jersey

for conversion. Plaintiff responds that undergoing repairs is

not automatically an indicator that a vessel is no longer “in

navigation”, and that determining if and when the F/V ALLIANCE

shifted out of “in navigation” status is a “fact[-]intensive

inquiry” involving disputed facts to be left to the jury.

Plaintiff’s position is supported by Chandris, our

touchstone on this issue. A vessel remains a vessel “even when

[it] is undergoing repairs.” Chandris, 515 U.S. at 374. But “at

some point . . . repairs become sufficiently significant that

the vessel can no longer be considered in navigation.” Id. The

question of whether that threshold has been crossed is a

question of fact for a jury. Roper v. United States, 368 U.S.

20, 22-23 (1961). Relevant considerations include “the status

of the ship, the pattern of the repairs, and the extensive

nature of the work contracted to be done.” Chandris, 515 U.S. at

374 (quoting West v. United States, 361 U.S. 118, 122 (1959));

see also Roper, 368 U.S. at 22-23.

Here, Plaintiff’s injury allegedly occurred in October

2017, approximately four months after the F/V ALLIANCE’s arrival

in Cape May in June 2017 for conversion. In Chandris, the work

on the vessel in question “took only about six months”, which

the Court termed “a relatively short period of time for

important repairs” that did not take the vessel out of

navigation. Chandris, 515 U.S. at 374. Yet the inquiry required

by West means the Court must consider the overall project as

well. Defendant asserts that almost three years later the ship

remains out of service, although it is unclear whether such a

lengthy stay was contemplated at the time, or is the result of

subsequent developments. Plaintiff notes that he left

Defendant’s employ, and the vessel, in August 2018, and that his

knowledge regarding the vessel’s operations and working

condition since that time is limited as a result. Despite that

qualification, Plaintiff argues that a jury could reasonably

conclude that the repairs were not so significant as to take the

vessel out of navigation, both a) because of the limited

temporal extent of repairs (i.e., four months) prior to his

injury and b) because the F/V ALLIANCE remained fully

operational, sufficient for Plaintiff to work and reside on it

during its time in port.

A genuine dispute clearly exists regarding the conversion

of the F/V ALLIANCE – its timeline, both planned and actual, the

significance of the repairs made, and the extent to which the

vessel was still operational at the time of Plaintiff’s alleged

injury. This is an issue of material fact, again, because

establishing whether the vessel was “in navigation” will serve

to establish or eliminate his seaman status, and thus his

ability to bring the claims in Counts I through III. Viewed in

the light most favorable to the Plaintiff, the finder of fact

could draw the reasonable inference that the vessel remained “in

navigation” at the time of the alleged injury.

Defendant also contends that Plaintiff lacked a

“substantial connection” to the F/V ALLIANCE. Defendant

specifically points to the test in Chandris, where an employee

who spends 30 percent or less of his time in service of a vessel

in navigation should not qualify as a seaman. Chandris, 515 U.S.

at 371. Defendant’s argument on this point largely ties in to

its assertion that the F/V ALLIANCE was not “in navigation” and

thus would turn on that finding. Defendant also provides

employment records listing Plaintiff as a 40 hour per week

employee, and asserts that this confirms that Plaintiff’s role

was “land-based”.

Plaintiff responds that the Chandris test does not require

the 30 percent of time spent on the vessel to be “at sea”; it is

a “status test” rather than a “voyage test.” Chandris, 515 U.S.

at 363, 369-70. Here, Plaintiff asserts that he did not become

a land-based employee when the F/V ALLIANCE arrived in Cape May

and he took on duties as a welder. Rather, he alleges, remained

in the service of the vessel day and night, performing typical

seaman activities, and engaging in a daily course of activities

which exposed him to the typical perils of shipboard life. See

supra at 7.

The same genuine disputes of material facts which the Court

highlighted supra are present here: namely, (a) the nature and

extent of Plaintiff’s duties, and (b) whether the F/V ALLIANCE

was a vessel “in navigation” at the time of Plaintiff’s alleged

injury. Viewed in the light most favorable to the Plaintiff,

the finder of fact could draw the reasonable inference that

Plaintiff had a substantial connection to the F/V ALLIANCE.

The Court finds that Defendant has not met its burden on

the current record to establish that there is no genuine issue

of material fact as to Plaintiff’s seaman status. Consequently,

Defendant is not entitled to judgment in its favor at this time.

B. Statutory Exclusive Remedy Provisions (Count IV)

1. The New Jersey Worker’s Compensation Act

Defendant argues that Plaintiff’s claim in Count IV is

barred by an exclusive remedy provision of New Jersey’s Worker’s

Compensation Act, N.J.S.A. § 34:15-8 (the “NJWCA”).

As Plaintiff notes in his opposition brief, the late Judge

Irenas already addressed this very issue in Morrow v. MarineMax,

Inc., 731 F. Supp. 2d 390 (D.N.J. 2010). In that case, Judge

Irenas, in denying summary judgment, held that the Plaintiff

could bring a claim for negligence under general maritime law,

and that such a claim could not be barred by the NJWCA. Morrow,

731 F. Supp. 2d at 400. In that case, Plaintiff Morrow, a land-

based employee, was covered by neither the Jones Act nor the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Id. at

399. The Supreme Court had previously held in Chandris that

such a worker could still recover “in admiralty, under general

maritime tort principles.” Id. (quoting Chandris, 515 U.S. at

356). Judge Irenas stated that if the NJWCA were applied, thus

barring Plaintiff Morrow’s claim, it “would ‘deprive’ Plaintiff

of a ‘substantial admiralty right[] as defined . . . by

interpretive decisions of [the Supreme] Court.” Id. (quoting

Pope & Talbot v. Hawn, 346 U.S. 406, 410 (1953)).

Here, Plaintiff Woolery may ultimately be found by a finder

of fact not to be a seaman, and thus not to be covered by the

Jones Act. If so, as Chandris and Morrow dictate, he would

still have the opportunity to recover “under general maritime

tort principles.”

2. The Longshore and Harbor Workers’ Compensation Act

Defendant also argues that Plaintiff might be properly

classified as a harbor worker, and, if so, would be covered by

the LHWCA, which also contains an exclusivity provision, 33

U.S.C. § 905(a). This provision bars claims for damages against

an injured worker’s employer.

Plaintiff responds that Defendant did not pay any

compensation to Plaintiff under the LHWCA, and that the finder

of fact may draw the reasonable inference that this failure to

compensate constitutes “fail(ure) to secure payment of

compensation as required” by the LHWCA. Such a failure would

preclude the exclusivity provision and allow Plaintiff to sue

his employer.2 See 33 U.S.C. § 905(a) (permitting employee to sue

employer in admiralty if employer “fails to secure payment of

compensation as required by this chapter”).

While application of the LHWCA is a question of law, it

turns on the material fact of whether Defendant secured payment

of compensation to Plaintiff as required by the LHWCA. Viewed

in the light most favorable to the Plaintiff, the finder of fact

could draw the reasonable inference that Plaintiff did not

receive such compensation and thus is not subject to the LHWCA’s

exclusivity provision.

The Court finds that Defendant has not met its burden on

the current record to establish that Plaintiff’s claim in Count

IV is barred by statute. Consequently, Defendant is not

entitled to judgment in its favor at this time.

2 Defendant does not counter with an assertion of compensation

under the LHWCA in its reply brief.

IV. CONCLUSION

For the reasons expressed above, Defendant’s Motion for

Summary Judgment will be DENIED. The case may proceed in due

course. A corresponding Order shall issue on this date.

___s/ Renée Marie Bumb______

RENEE MARIE BUMB

United States District Judge

Dated: July 31, 2020