Shade v. Great Lakes Dredge

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

9-3-1998

Shade v. Great Lakes Dredge

Precedential or Non-Precedential:

Docket 97-2023

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Filed September 3, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-2023

JOHN D. SHADE

v.

GREAT LAKES DREDGE & DOCK COMPANY,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 97-00739)

Argued July 30, 1998

BEFORE: GREENBERG, SCIRICA, and MCKEE,

Circuit Judges

(Filed: September 3, 1998)

Robert B. White, Jr. (argued)

Rapp, White, Janssen & German,

P.C.

1800 John F. Kennedy Boulevard

Suite 500

Philadelphia, PA 19103

Attorneys for Appellant

Marvin I. Barish (argued)

Marvin I. Barish Law Offices, P.C.

Sixth & Walnut Streets

The Curtis Center, Suite 801

Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. JURISDICTION

Great Lakes Dredge & Dock Company appeals from a

final judgment entered in favor of appellee, John D. Shade,

on October 22, 1997, pursuant to a jury verdict for Shade

in the amount of $870,000, and from the denial of its

renewed motion to alter or amend the judgment, or, in the

alternative, for a new trial entered on November 19, 1997.

The district court had jurisdiction over this case under 28

U.S.C. S 1331, and this court has jurisdiction pursuant to

28 U.S.C. S 1291.

II. FACTUAL AND PROCEDURAL HISTORY

The U.S. Army Corps of Engineers awarded Great Lakes

a contract to dredge and renourish the beach at Cape May,

New Jersey, which Great Lakes began performing on

November 12, 1994. This project consisted of removing

sand from the ocean floor at offshore locations and

transferring the sand to the beach through 6600 feet of

steel pipe, known as the submersible line. See app. at 637-

40. The dredge Long Island removed the sand from the

ocean floor; and once its hopper compartments were full,

the tug Conlon propelled the dredge to a self-contained

offshore transfer station buoy ("scots buoy"), a large round

floating buoy secured by four anchors. See id. at 337, 689.

In order to transport the sand to the beach, the dredge

would secure itself to a pipe attached to the scots buoy

which in turn was connected to the submersible line. The

2

dredge then would pump its load of sand into the pipe and

through the submersible line. Upon reaching the beach, the

submersible line ended at a "Y" valve. This valve, which

controlled the flow of the sand, connected the submersible

line to an additional line, known as the shore line,

extending in both directions along the beach parallel to the

ocean. As the sand flowed out of either end of the shore

line, bulldozers positioned the sand on the beach according

to a predetermined plan.

Shade arrived at the Cape May worksite on the night of

December 8, 1994, and began to work for Great Lakes at

the site on December 9, 1994. See id. at 472. Since 1974,

Shade had been employed by various companies to assist

in such dredging projects; and in the four years prior to his

injury, the majority of his work had been with Great Lakes.

See id. at 468-69. Shade received his work assignments

through his union, Local 25, Marine Division, International

Union of Operating Engineers, AFL-CIO. When he was

unemployed, Shade would place his name on the out-of-

work list until Local 25 assigned him to a new job. See id.

at 346-48, 519-20.

Great Lakes previously employed Shade from September

1992 until February 1994. See id. at 54-55, 509-10.

However, beginning in March 1994, Shade worked for

Bean-Weeks Joint Venture, another dredging contractor, as

a deckhand. See id. at 55, 510. Bean-Weeks subsequently

fired Shade, and he remained without work until Great

Lakes hired him for the Cape May job.

Great Lakes asserted that it hired Shade for Cape May as

a shoreman, see id. at 648, pursuant to its contract with

Local 25 which mandated the hiring of a shoreman for this

type of job. See id. at 69, 684-87. In fact, Great Lakes'

superintendent, David P. Rappe, and the Local 25 union

steward, Cecil C. Jackson, Sr., both testified that Great

Lakes hired Shade as a shoreman. See id. at 687, 794; see

also id. at 648 (testimony of deck captain James D. Joyner),

772-73 (testimony of shoreman Joseph H. Gurganus).

Shade, on the other hand, contended that Great Lakes

hired him as a deckhand assigned to the anchor barge 110,

which assisted in the dredging operation, see id. at 479,

3

and that the shore gang was already in place when he

arrived to work at Cape May. See id. at 472. Both Shade

and his supervisor, Mark Oldham, testified that he was

employed primarily on the navigable waters off Cape May.

See id. at 316-17, 473-84. In fact, Oldham testified that

Shade was on the water 90% of the time that he worked at

the Cape May project. See id. at 316-17.

When Shade arrived at Cape May, the submersible line

had been laid, the scots buoy was in place, and the Long

Island had begun to dig the first portion of sand from the

ocean floor. See id. at 473, 642-43, 681-83, 793-94. The

dredge filled its hoppers and connected to the scots buoy,

but it was not able to pump the sand to the beach because

of a hole in the submersible line. See id. at 157. As a result,

from December 9th, when Shade began to work at Cape

May, until the early morning hours of December 13th,

Shade worked on the water assisting in the repair of the

submersible line, see id. at 690-92, while assigned to

anchor barge 110. See id. at 473-75.

After the workers completed the repair of the submersible

line, the Long Island once again had the capacity to pump

sand to the beach. However, between December 13th and

December 30th, the dredge only operated from the evening

of December 19th until December 22nd and from the

evening of December 25th until December 30th because of

poor weather conditions. See id. at 249-66, 694-99. Great

Lakes presented evidence that during the periods of bad

weather, Shade remained on the beach, assisting welders

and waiting on standby in case the weather cleared. See id.

at 601-02, 699-700, 745-46. Shade, on the other hand,

contended that during poor weather he would work in the

harbor which was protected from the rough seas. See id. at

311-14. For instance, Shade testified that he helped

construct a second submersible line, see id. at 480, and

assisted in repairing the scots buoy. See id. at 558-59; see

also id. at 305-15 (testimony of Oldham).

Great Lakes offered testimony that when the dredge was

able to pump sand to the beach, Shade performed the work

of a shoreman on the beach. See id. at 695-99. For

example, Shade assisted welders in securing the shore line,

operated the "Y" valve, and put fuel in welding machines.

4

See id. at 536-37, 769. Shade disputed Great Lakes'

account of his work between December 19th and December

22nd, and testified that he worked on the water during that

period. See id. at 556. However, he did not dispute that he

primarily worked on the beach performing these shore

based duties from December 25th until December 30th. See

id.

While working on the beach on December 30th, Shade

assisted Oldham in refueling a welding machine, a

procedure which required lifting the machine with a front-

end loader. See id. at 485-87. While Oldham was operating

the loader, the raised claw of the loader dropped

unexpectedly and severed Shade's thumb. See id. at 486-

88. Shade testified that even though doctors were able to

reattach his thumb, see id. at 491, he basically has no use

of the thumb, see id. at 501-02, and could not return to

work in his prior capacity. See id. at 502-03.

After initially receiving benefits under the Longshore and

Harbor Workers' Compensation Act, 33 U.S.C. S 901 et seq.

("LHWCA"), Shade filed a complaint against Great Lakes on

January 31, 1997, seeking damages under the Jones Act,

46 U.S.C. app. S 688(a), and the general maritime law

doctrine of unseaworthiness. On September 8, 1997, Great

Lakes filed a motion for summary judgment on the ground

that Shade was not a seaman. The district court denied this

motion without opinion on September 24, 1997. On

October 7, 1997, Great Lakes filed a motion in limine to

preclude testimony at trial regarding Shade's prior

employment with Great Lakes. The district court, however,

deferred ruling on the motion and at the trial ultimately

permitted Shade to introduce evidence of his prior

employment. See app. at 54-55, 509-10.

A jury trial began on October 14, 1997, solely on the

Jones Act claim. At the conclusion of the presentation of

Shade's evidence, Great Lakes moved under Fed. R. Civ. P.

50 for a judgment as a matter of law on the ground that the

evidence did not establish that Shade was a seaman at the

time of his injury. See app. at 41, 589. However, the district

court deferred ruling on that motion. See id. at 589. Great

Lakes renewed its Rule 50 motion at the conclusion of all

5

of the evidence, see id. at 45, 844; and again, the district

court deferred its ruling. See id. at 844.

The district court submitted a series of special

interrogatories to the jury; and on October 21, 1997, the

jury found that Shade was a seaman, and returned a

verdict in his favor in the amount of $870,000. See id. at

946-47. Pursuant to this verdict, the district court entered

judgment against Great Lakes on October 22, 1997. See id.

at 7. Great Lakes subsequently filed a renewed motion to

alter or amend the judgment pursuant to Fed. R. Civ. P.

50(b), or, in the alternative, for a new trial under Fed. R.

Civ. P. 59. See app. at 7. However, the district court denied

this motion on November 19, 1997, and Great Lakesfiled

its timely notice of appeal on December 18, 1997. See id. at

7, 9.

III. DISCUSSION

A. Jones Act Seaman Status

The Jones Act provides that "[a]ny 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." 46 U.S.C. app. S 688(a). However,

the Jones Act does not define the critical term"seaman"

and thus "leaves to the courts the determination of exactly

which maritime workers are entitled to admiralty's special

protection." Chandris, Inc. v. Latsis, 515 U.S. 347, 355, 115

S.Ct. 2172, 2183 (1995). In a recent series of opinions, the

Supreme Court has clarified this definition and has

provided guidance as to how courts are to interpret this key

term. See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548,

117 S.Ct. 1535 (1997); Chandris, 515 U.S. 347, 115 S.Ct.

2172; Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112

S.Ct. 486 (1991); McDermott Int'l, Inc. v. Wilander, 498 U.S.

337, 111 S.Ct. 807 (1991).

In developing a test for seaman status, the Court noted

that prior cases recognized "a fundamental distinction

between land-based and sea-based maritime employees."

Chandris, 515 U.S. at 359, 115 S.Ct. at 2185. In

enunciating this difference, the Court has focused"on the

6

nature of the seaman's service, his status as a member of

the vessel, and his relationship as such to the vessel and

its operation in navigable waters," id. at 359-60, 115 S.Ct.

at 2185, and not on the situs of injury, because"land-

based maritime workers do not become seamen because

they happen to be working on board a vessel when they are

injured, and seamen do not lose Jones Act protection when

the course of their service to a vessel takes them ashore."

Id. at 361, 115 S.Ct. at 2186; see also Wilander, 498 U.S.

at 355, 111 S.Ct. at 817 ("The key to seaman status . . . is

employment-related connection to a vessel in navigation.").

The rule as developed by the Supreme Court furthers the

important goal of ensuring that a worker does "not oscillate

back and forth between Jones Act coverage and other

remedies depending on the activity in which the worker was

engaged while injured." Chandris, 515 U.S. at 363, 115

S.Ct. at 2187.

From these basic principles, the Court in Chandris set

forth a two-part test to determine if an individual is entitled

to Jones Act protection as a seaman:

First, as we emphasized in Wilander, `an employee's

duties must "contribut[e] to the function of the vessel

or to the accomplishment of its mission.' " The Jones

Act's protections, like the other admiralty protections

for seamen, only extend to those maritime employees

who do the ship's work. . . .

Second, . . . a seaman 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 nature.

Id. at 368, 115 S.Ct. at 2190 (citations omitted). The Court

also noted that although "seaman status is not merely a

temporal concept, . . . it necessarily includes a temporal

element." Id. at 371, 115 S.Ct. at 2191. In fact, both

portions of the Chandris test contain such an element,

because a court must determine how broad a time period to

consider when evaluating both an employee's duties and

his or her connection to a vessel in navigation. 1

_________________________________________________________________

1. In addition, the second portion of the test contains a direct

measurement of time through its durational element.

7

In its appeal, Great Lakes focuses on this temporal

concept. Specifically, Great Lakes argues that in evaluating

an employee's duties under the initial prong of the seaman

status test, the fact-finder must consider only the activities

of an employee at the time of his or her injury. Great Lakes

maintains that under this interpretation it is entitled to a

judgment as a matter of law, because it contends that

Shade was not acting as a seaman at the time of his injury.

Alternatively, with respect to the latter portion of the

seaman status test, Great Lakes asserts that only evidence

regarding the employee's present assignment with his or

her current employer is relevant and admissible to

establish a substantial connection to a vessel in navigation.

Thus, Great Lakes argues that if it does not receive a

judgment as a matter of law, it is entitled to a new trial

because the district court permitted Shade to introduce

evidence regarding his prior employment history.

After considering these arguments, we hold that Great

Lakes is not entitled to a judgment as a matter of law with

respect to Shade's seaman status, because Shade

presented sufficient evidence to create an issue of fact for

the jury to consider. However, we will reverse the judgment

entered against Great Lakes, and remand this case to the

district court for a new trial, because the district court

abused its discretion to admit evidence regarding Shade's

prior employment history.2

B. Duties Of The Employee

Under the first portion of the Chandris seaman status

test, an employee must demonstrate that his or her duties

" `contribute to the function of the vessel or to the

accomplishment of its mission.' " 515 U.S. at 368, 115 S.Ct.

at 2190 (citation omitted). In satisfying this requirement,

the seaman does not have to aid the vessel in navigation,

_________________________________________________________________

2. Great Lakes also raised a number of other issues in its appeal, such

as the failure to hold a charge conference, the alleged inadequacy of the

district court's jury charge, and the lack of a set-off against the

judgment for the amounts Shade received under the LHWCA; however,

we will not reach these issues on this appeal as their resolution could

not affect our result.

8

see Wilander, 498 U.S. at 353, 111 S.Ct. at 816; rather, the

employee must merely "perform the work of the vessel." Id.

at 355, 111 S.Ct. at 817.3 While this part of the Chandris

test does not contain any express time component, such an

element is implied, because a court must determine how

broad a time period to consider when evaluating an

employee's duties. Great Lakes argues for a narrow time

limitation, stating that a court is to determine the seaman

status of an employee solely based on "the activity in which

he was engaged at the time of injury." Desper v. Starved

Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218

(1952); see also Heise v. Fishing Co., 79 F.3d 903, 906-07

(9th Cir. 1996) ("The fact that if Heise performed well he

might be hired to work on the ship when it left Seward if

there were jobs available does not change his land-based

status at the time the injury occurred." (emphasis added)).

Applying this standard to the facts in this case, Great

Lakes contends that it is entitled to a judgment as a matter

of law, because Shade was ashore assisting in the refueling

of a welding machine when he was injured.

The question of seaman status is often "fact specific," and

"[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." Wilander, 498 U.S. at

356, 111 S.Ct. at 818. However, "a directed verdict is

mandated where the facts and the law will reasonably

support only one conclusion." Id. This court utilizes a

plenary standard to review a grant or denial of a judgment

as a matter of law. See Salas v. Wang, 846 F.2d 897, 902

(3d Cir. 1988). A court should grant such a motion only "if,

_________________________________________________________________

3. The Court in Wilander definitively resolved the "inconsistent use of an

aid in navigation requirement" that arose between 1927 and 1946,

"during which [time] the Court did not recognize the mutual exclusivity

of the [LHWCA] and the Jones Act." Id. at 348, 111 S.Ct. at 814. The

Court explained that "the better rule" was to define seaman status

"solely in terms of the employee's connection to a vessel in navigation."

Id. at 354, 111 S.Ct. at 817. This rule would ensure that the Jones Act

would fulfill the purpose of protecting "[a]ll who work at sea in the

service of a ship [and who] face those particular perils to which the

protection of maritime law, statutory as well as decisional, is directed."

Id.

9

viewing the evidence in the light most favorable to the

nonmovant and giving it the advantage of every fair and

reasonable inference, there is insufficient evidence from

which a jury reasonably could find liability." Lightning Lube,

Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).

Although the contours of the seaman status test remain

difficult to apply, the Supreme Court has provided a

number of relevant principles to guide our determination of

this issue. First, the Court has emphasized that its status-

based approach to the definition of the term seaman

"determines Jones Act coverage without regard to the

precise activity in which the worker is engaged at the time

of the injury." Chandris, 515 U.S. at 358, 115 S.Ct. at

2185; see also id. at 363, 115 S.Ct. at 2187 ("[C]ourts

should not employ `a `snapshot' test for seaman status,

inspecting only the situation as it exists at the instant of

injury; a more enduring relationship is contemplated in the

jurisprudence.' " (quoting Easley v. Southern Shipbuilding

Corp., 965 F.2d 1, 5 (5th Cir. 1992))). By not focusing

exclusively on the activity of the employee at the time of

injury, courts prevent a worker from oscillating"between

Jones Act coverage and other remedies depending on the

activity in which the worker was engaged while injured." Id.

at 363, 115 S.Ct. at 2187.

For instance, in Thibodeaux v. Torch, Inc., 858 F.2d 1048,

1049 (5th Cir. 1988), the plaintiff sued under the Jones Act

for injuries he sustained while working ashore. The

employer argued that it was entitled to summary judgment,

because the plaintiff 's specific activities at the moment of

his accident were not the work of a seaman, but rather

were "traditional" duties of a longshoreman. Id. at 1050.

The Court of Appeals for the Fifth Circuit rejected the

employer's position and held that the specific activity at the

time of injury was "only one factor" in the analysis of the

employee's Jones Act seaman status. Id. at 1051; see also

Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415

(5th Cir. 1986); Savoie v. Otto Candies, Inc. , 692 F.2d 363,

365 (5th Cir. 1982); Guidry v. South La. Contractors, Inc.,

614 F.2d 447, 453 (1980); Higginbotham v. Mobil Oil Corp.,

545 F.2d 422 (5th Cir. 1977), rev'd on other grounds, 436

U.S. 618, 98 S.Ct. 2010 (1978). Thus, contrary to Great

10

Lakes' position, the employee's specific activity at the time

of his or her injury is not dispositive of the issue of seaman

status.

Second, although an examination based solely on the

specific activity at the time of injury is too narrow, the

Supreme Court also has cautioned against too broad of a

perspective in examining an employee's duties. In

evaluating the duties of an employee under the seaman

status test, courts should not consider an employee's entire

work history, but must consider only the nature of the

employee's basic job assignment as it existed at the time of

injury. After all, as the Court has stated, "[w]hen a

maritime worker's basic assignment changes, his seaman

status may change as well." Chandris, 515 U.S. at 372, 115

S.Ct. at 2191. To illustrate this holding, the Court

explained:

For example, we can imagine situations in which

someone who had worked for years in an employer's

shoreside headquarters is then reassigned to a ship in

a classic seaman's job that involves a regular and

continuous, rather than intermittent, commitment of

the worker's labor to the function of a vessel. Such a

person should not be denied seaman status if injured

shortly after the reassignment, just as someone

actually transferred to a desk job in the company's

office and injured in the hallway should not be entitled

to claim seaman status on the basis of prior service at

sea.

Id. at 372, 115 S.Ct. at 2191. Thus, while a court must not

concentrate exclusively on the employee's specific activity at

the time of injury, a court should limit its examination of

the employee's duties to the employee's basic job

assignment as it existed at the time of injury.

Applying these principles to the present appeal, we

cannot say that Great Lakes is entitled to a judgment as a

matter of law. Although Shade was on shore assisting in

the refueling of a welding machine when he was injured,

this activity cannot be the sole determining factor to resolve

whether Shade was a seaman. Instead, we must view

Shade's status in the larger context of his employment-

11

related duties. In deciding which duties to consider, a

reasonable juror could conclude that Shade's entire

performance at the Cape May job consisted of a single

assignment, because his duties remained fairly constant

during the pendency of that dredging operation. Under this

broader analysis, Shade presented sufficient evidence such

that a reasonable jury could determine that his duties

during the Cape May job contributed to the function of a

vessel or to the accomplishment of its mission. While

working at Cape May, Shade spent a considerable amount

of his time at the beginning of his employment working on

the water with the anchor barge 110 to repair the

submersible line. See app. at 473-75, 690-92. Beyond this

initial placement, Shade presented evidence at trial that he

spent significant time on the water as a deckhand on a

vessel in navigation performing his job responsibilities. See

id. at 311-14, 316-17, 473-84. Additionally, even Shade's

duties on the beach were not unrelated to the work of a

vessel in navigation; instead, they contributed to the

purpose of the dredging operation. Viewing this evidence in

a light most favorable to Shade, a reasonable juror could

find that Shade's job responsibilities at Cape May consisted

of a single job assignment and contributed to the function

of a vessel in navigation, thereby satisfying thefirst

requirement of the Chandris test. Thus, because Shade

presented sufficient evidence for a reasonable juror to find

in his favor, the district court correctly denied Great Lakes'

motion for a judgment as a matter of law.4

C. Connection To A Vessel

Under the second part of the Chandris seaman status

test, an employee must demonstrate that he or she has "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 nature." 515 U.S. at 368, 115 S.Ct. at

_________________________________________________________________

4. We note that in making this determination, we do not consider the

evidence of Shade's prior employment history with Great Lakes, because

as we hold below, such evidence is inadmissible, and thus cannot be

considered by a court in deciding a motion for a judgment as a matter

of law. See Lightning Lube, 4 F.3d at 1198-1200.

12

2190. Typically, this requirement is fulfilled by examining

the employee's connection with the vessel to which he or

she was assigned at the time of his or her injury. However,

in certain circumstances, this connection might not be

sufficient to meet the substantiality requirement of the

seaman status test, even though the employee performs

traditional seaman activities on a regular and continuous

basis. For example, the employee's job responsibilities

might require performance on a number of different vessels,

rather than permitting a permanent connection to one

vessel. Confronted with this problem, courts have enabled

employees to fulfill the seaman status test by

demonstrating that they are assigned to a fleet of vessels,

rather than to only one vessel, under a doctrine known as

the "Fleet Seaman Doctrine." See, e.g., Reeves v. Mobile

Dredging & Pumping Co., 26 F.3d 1247, 1253-55 (3d Cir.

1994) (describing the development of the doctrine). In fact,

the Chandris test contemplates this doctrine, because it

expressly permits an employee to demonstrate a connection

not only "to a vessel in navigation," but also"to an

identifiable group of such vessels." 515 U.S. at 368, 115

S.Ct. at 2190. By permitting this aggregation, the Fleet

Seaman Doctrine thus ensures that a seaman receives

Jones Act coverage even though he or she is not assigned

permanently to a specific vessel, but instead regularly

performs seaman's work on different vessels. See Gizoni v.

Southwest Marine Inc., 56 F.3d 1138, 1141 (9th Cir. 1995)

("Under the fleet seaman doctrine, one can acquire `seaman'

status through permanent assignment to a group of vessels

under common ownership or control.").

For instance, in Braniff v. Jackson Ave.-Gretna Ferry, Inc.,

280 F.2d 523, 528 (5th Cir. 1960), John Braniff worked as

the "Superintendent in charge of all maintenance, repair

and overhaul work" for his employer. Id. at 525. In

performing this job, he would travel from vessel to vessel,

but would be stationed only temporarily at each vessel.

Braniff subsequently drowned while repairing a machine on

one of his employer's ferries. See id. Based on his limited

contact with the ferry, Braniff could not establish a

substantial connection to a single vessel in navigation even

though his job required him to perform seaman's duties on

a regular and ongoing basis. In holding that Braniff could

13

be a seaman under the Jones Act, the Court of Appeals for

the Fifth Circuit permitted an aggregation of Braniff 's

connections to the other vessels in the fleet beyond the

single ferry he worked on immediately prior to his death,

because he was " `assigned permanently' " to those vessels

and performed " `a substantial part of his work on the'

several specified `vessel(s).' " Id. at 528 (citing Offshore Co.

v. Robison, 266 F.2d 769, 779 (5th Cir. 1959)).

We first considered the Fleet Seaman Doctrine in Reeves,

26 F.3d at 1256; and after determining that "the doctrine

comports well with and flows logically from Supreme Court

precedent," we adopted the doctrine as "the rule of law in

this circuit in analyzing Jones Act cases." Id. We held that

"[t]he Fleet Seaman Doctrine in our view applies to an

employee, one who is predominantly assigned by his

employer to a navigable vessel, but who occasionally is

assigned by that same employer to non-navigable vessels. It

would also apply to one who is assigned to a number of

navigable vessels and spends some time on shore, as in

Braniff." Id. Thus, we adopted the doctrine to afford Jones

Act protection to these types of employees, because

"stripping seaman status from such an employee, or

allowing that same employee to oscillate between seaman

and non-seaman status . . . would be a travesty of justice."

Id.

In the present case, Shade had worked as a deckhand

since 1974. See app. at 468. From September 1992 until

February 1994, Great Lakes employed Shade as a

deckhand. See id. at 54-55, 509-10. However, beginning in

March 1994, Shade worked for Bean-Weeks. See id. at 55,

510. Great Lakes did not re-employ Shade until December

1994 for the Cape May job. See id. at 472. During trial,

Shade sought to introduce evidence regarding his

employment history under the Fleet Seaman Doctrine in

order to satisfy the substantiality requirement of the

Chandris seaman status test. Over the objection of Great

Lakes, the district court permitted Shade to offer two types

of prior employment evidence. First, Shade introduced a

general account of his work history, with Shade testifying

that he had been working on the water since 1974, see id.

at 468, and had been a deckhand "all my life," id. at 479,

14

and with three other witnesses testifying that Shade had

been a deckhand throughout his career. See id. at 617

(testimony of Thomas E. Chandler), 660-61 (testimony of

Joyner), 809 (testimony of Jackson). Second, the district

court admitted specific evidence regarding Shade's work

history as a deckhand for Great Lakes from September

1992 until February 1994. See id. at 54-55, 468-69, 842.

In its appeal, Great Lakes maintains that it is entitled to

a new trial because this prior employment evidence was not

relevant to the determination of Shade's seaman status and

thus should not have been admitted under Fed. R. Civ. P.

402.5 We exercise an abuse of discretion standard to review

"a denial of a request for a new trial based on the district

court's alleged error in ruling on the admissibility of

evidence." Affiliated Mfrs., Inc. v. Aluminum Co. of America,

56 F.3d 521, 525 (3d Cir. 1995) (citing Lippay v. Christos,

996 F.2d 1490, 1496 (3d Cir. 1993)). However, where"the

district court's decision rests on the application of legal

precepts, we exercise plenary review." Failla v. City of

Passaic, 146 F.3d 149, 153 (3d Cir. 1998). We will grant

Great Lakes a new trial, because we hold that the district

court abused its discretion in admitting evidence regarding

Shade's prior work history.6

Even though the Fleet Seaman Doctrine permits an

employee to aggregate contacts with multiple vessels, it is

clear that these contacts must have occurred with vessels

owned or controlled by the same employer. As the Supreme

Court has stated, "[c]onsidering prior employments with

independent employers in making the seaman status

inquiry would undermine `the interests of employers and

maritime workers alike in being able to predict who will be

covered by the Jones Act . . . before a particular work day

_________________________________________________________________

5. Rule 402 provides: "All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by Act of

Congress, by these rules, or by other rules prescribed by the Supreme

Court, pursuant to statutory authority. Evidence which is not relevant is

not admissible."

6. Arguably we should exercise plenary review on the evidence issue. Of

course, if we did, we would reach the same result. Thus, we do not

prejudice Shade by using an abuse of discretion standard.

15

begins.' " Harbor Tug, 117 S.Ct. at 1541 (quoting Chandris,

515 U.S. at 363, 115 S.Ct. at 2187). The Court held that

without such a rule "[t]here would be no principled basis

for limiting which prior employments are considered for

determining seaman status." Id.; see also Reeves, 26 F.3d

at 1257 (rejecting an attempt to introduce evidence of a

prior employment with another employer under the Fleet

Seaman Doctrine because the prior employment "was

simply unrelated" to his present job).

When introducing evidence concerning his general work

history, Shade and the other witnesses did not state with

any specificity who employed him during his work career.

However, undoubtedly at least a portion of this evidence

concerned employment with employers other than Great

Lakes. For instance, Shade testified that he worked for

Bean-Weeks during a portion of 1994; and Shade provided

evidence that out of his twenty year career, he worked for

Great Lakes during the Cape May job and between

September 1992 and February 1994. From this evidence, it

is reasonable to conclude that this general work history

evidence involved other employers beyond Great Lakes.

Thus, because the evidence of Shade's general work history

apparently referred to employment with independent

employers, this testimony clearly was irrelevant to the

determination of Shade's seaman status, and the district

court abused its discretion to have permitted the jury to

consider it.7

The admission of evidence concerning Shade's specific

work history with Great Lakes poses a more difficult

question. Typically, an employee introducing evidence of

connections to other vessels in an employer's fleet under

the Fleet Seaman Doctrine has worked for the same

employer on a continual, uninterrupted basis. See, e.g.,

Braniff, 280 F.2d at 525-26. Shade's connections to other

vessels in Great Lakes' fleet, however, did not concern a

single employment period. Instead, Shade presented

_________________________________________________________________

7. Even if Shade's employment prior to 1992 had been with Great Lakes

our result would be the same, because as we hold below, such

employment evidence is not admissible if the employment relationship

was not continuous.

16

evidence of two distinct employment periods with Great

Lakes in order to establish a substantial connection to a

vessel in navigation: his final employment with Great Lakes

from December 9, 1994, until December 30, 1994, and his

previous employment with the company from September

1992 until February 1994. Between these two employment

periods, Shade did not work for Great Lakes, and he had no

connection to Great Lakes or the vessels in itsfleet. Rather,

Bean-Weeks employed him. Thus, in this unusual

situation, we must determine whether the Fleet Seaman

Doctrine permits Shade to aggregate his prior assignments

with Great Lakes and his work for the company at the Cape

May job to establish a substantial connection to a vessel in

navigation, even though he was not employed continuously

by Great Lakes.

The Supreme Court's consideration of the substantiality

prong of the Chandris seaman status test in Harbor Tug,

520 U.S. 548, 117 S.Ct. 1535, provides some guidance to

resolve this issue. In that case, John Papai, an employee of

Harbor Tug & Barge Company, was injured while painting

a tugboat. See Harbor Tug, 117 S.Ct. at 1538. During the

2-1/4 years prior to his injury, Papai received various

assignments with a number of different employers,

including Harbor Tug, through a central union hiring hall.

See id. at 1538. In fact, during the 2-1/2 months prior to

his injury, Harbor Tug had employed Papai on 12 separate

occasions. See id. at 1542. In attempt to establish a

substantial connection to a vessel in navigation, Papai

sought to introduce evidence of his prior employments with

Harbor Tug and with other employers. See id. at 1540. After

rejecting the evidence relating to other employers, the Court

examined Papai's specific employments with Harbor Tug.

See id. at 1542. Given the fact that Papai described a

number of these jobs as non-deckhand work, the Court

held that "it would not be reasonable to infer" that the rest

of his employments with Harbor Tug were of a seagoing

nature. Id. Thus, the contacts would not seem to assist

Papai in establishing seaman status. More importantly, the

Court stated "[i]n any event, these discrete engagements

were separate from the one in question, which was the sort

of `transitory or sporadic' connection to a vessel or group of

vessels that . . . does not qualify one for seaman status." Id.

17

(citation omitted). Thus, the Court held that these prior

assignments could not be used to establish seaman status

because they were separate from Papai's present

employment.

The Court of Appeals for the Fifth Circuit has addressed

this question more directly in Patton-Tully Transp. Co. v.

Ratliff, 797 F.2d 206 (5th Cir. 1986). In that case, Tommy

Lee Ratliff worked for Patton-Tully Transportation Company

from 1979 until he quit in May 1980; but he returned to

the company in September 1980 and worked there until his

death in March 1981. See id. at 208. Subsequently, his

mother filed a claim under the Jones Act against the

company, seeking to recover damages for the death of her

son. See id. at 209. In evaluating Ratliff 's seaman status,

the court confronted the question of whether it should

consider both periods of Ratliff 's employment with Patton-

Tully, or whether it only should consider Ratliff 's final

period of employment with the company. The court held

that it should focus solely on Ratliff 's final period of

employment, because "the four-month hiatus in Ratliff 's

employment was a significant break requiring separate

evaluation of his duties during the re-employment period."

Id. at 210. Thus, the court upheld the exclusion of evidence

of a prior employment with the same employer, because the

employee had not worked for the employer on a continuous

basis. See also Reeves, 26 F.3d at 1256 ("The key to the

Fleet Seaman Doctrine is that the seaman maintain the

employment relationship with the same employer.").

Excluding such evidence is consistent with the Fleet

Seaman Doctrine. Although the doctrine developed as a

means to protect employees from losing seaman status

"when on temporary non-navigable assignments or when

assignments preclude attachment to one," Reeves, 26 F.3d

at 1256, the doctrine specifically excludes individuals who

perform seaman's work on multiple vessels, but do so as

part of their employment with multiple employers. See

Harbor Tug, 117 S.Ct. at 1541. The distinction developed in

part because each new assignment with a different

employer is distinct from the employee's prior jobs with

other employers, and "[n]o principled basis" existed to limit

"which prior employments are considered for determining

18

seaman status." Id. This distinction served the purpose of

permitting "employers and maritime workers alike" to

predict the Jones Act status of an employee based on the

job for which the employer hired the individual, rather than

based on the prior experiences of the employee with an

independent employer. Id.

Applying this rationale to a situation where an

employment relationship is terminated and subsequently

the employer rehires the employee, the employee's posture

is more akin to those excluded by the doctrine rather than

those afforded protection under it. After the termination of

the employment relationship, the employee severs any

duties that the employee had towards the employer with

respect to the performance of the former job. The employee

does not have any ongoing or regular responsibilities

relating to the vessels in the former employer'sfleet. Upon

being rehired, the employee does not recapture that prior

relationship. Instead, the employee adopts a prospective set

of duties and responsibilities that may be distinct from the

employee's former performance, and the connections the

employee once had to any vessels in the employer'sfleet are

thus separate from the employee's new status. In effect, the

employment in the new position could be considered to be

for an entirely different employer, and as such, evidence of

the prior employment would have no relevance to the

employee's later position with the employer. Thus, we hold

that evidence of an employee's prior assignment with the

same employer is not admissible under the Fleet Seaman

Doctrine if those assignments were not part of a continuous

employment relationship between the employer and

employee.8

Shade severed all ties with Great Lakes and with his

prior assignments with the company by working for Bean-

Weeks. When Shade returned to Great Lakes after

_________________________________________________________________

8. Conceivably there could be such a short interruption in an otherwise

continuous employment relationship that it might be reasonable to

regard the employment as practically continuous and thus to apply the

Fleet Seaman Doctrine. Here, however, the interruption was not so short,

and Shade worked for Bean-Weeks in the interim. These facts preclude

a finding that Great Lakes' employment of Shade was practically

continuous.

19

approximately ten months, his final employment only

concerned the Cape May job and his duties during that

dredging operation. He had no regular responsibilities that

required him to move from vessel to vessel in Great Lakes'

fleet; instead, he was hired for a distinct job and only could

establish a connection to vessels being used at the Cape

May dredging operation. Thus, because he did not maintain

a continuous employment relationship with the company,

the evidence of Shade's prior employment with Great Lakes

was completely irrelevant to the determination of his

seaman status, and the district court abused its discretion

to have admitted this prior employment history into

evidence.

Because the district court abused its discretion to admit

Shade's prior employment history into evidence,"we must

reverse unless we find that its admission was harmless

error." Lippay, 996 F.2d at 1500. An error is harmless if "it

is highly probable that the error did not substantially

affect" the judgment. Id. The issue of seaman status was

one of the central issues at trial and was the subject of a

great deal of disputed evidence. The admission of Shade's

prior work history was significant, because it permitted

Shade to argue to the jury that he should be considered a

seaman based on the status he held during his prior

employment assignments and regardless of his actual

status at Cape May. During closing arguments, Shade's

counsel stated:

[T]he Supreme Court has said that in evaluating the

status of an individual, you do not look at what he was

doing on the day of the injury, or even at the time of

the injury. You look at Mr. Shade's history with this

company Great Lakes.

And if you do that, you will know that Mr. Shade has

always been a seaman for Great Lakes . . . .

And you also know that while he was on the beach

[at Cape May] he was called out to perform functions

on the sea. That is not necessary for you to find. You

can find that he wasn't, and still determine he was a

seaman, because, as the records will show, he has

worked for Great Lakes for over four years, every time

as a seaman, as a deck hand.

20

App. at 849. Because of the centrality of the issue and the

extremely prejudicial use of this evidence, we cannot say

that it is highly probable that the error did not affect the

verdict.9 Therefore, we will reverse the judgment and

remand this matter for a new trial in a matter consistent

with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

9. We do not preclude admission of evidence of the character leading to

the reversal here if the evidence is admitted for a purpose other than to

establish an employee's seaman status. Of course, in the event that such

evidence is admitted, the district court should give an appropriate

instruction as to its use.

21