# WOOLERY v. ATLANTIC CAPES FISHERIES, INC.

> District Court, D. New Jersey · July 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10268704

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268704

## How later opinions describe it (automated extraction)

- 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

## Opinion text

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268704. Public record. Not legal advice.