Foulk v. Donjon Marine Co Inc

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

5-11-1998

Foulk v. Donjon Marine Co Inc

Precedential or Non-Precedential:

Docket 97-5235

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Filed May 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-5235 & 97-5269

LAYNE B. FOULK; MARJORIE E. FOULK, h/w

v.

DONJON MARINE COMPANY, INC.,

Defendant/Third-Party

Plaintiff

v.

BREAKWATERS INTERNATIONAL, INC.,

Third-Party Defendant

Donjon Marine Company,

Inc.,

Appellant in 97-5235.

Layne B. Foulk;

Marjorie E. Foulk,

Appellants in 97-5269.

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 95-cv-00323

Argued on December 12, 1997

Before: GREENBERG, ROTH and SEITZ, Circuit Judges

(Opinion filed: May 11, 1998)

David B. Winkler, Esquire

Marvin I. Barish Law Offices

Sixth & Walnut Streets

The Curtis Center, Suite 801

Philadelphia, PA 19106

Attorney for Foulks

Raymond R. Wiss, Esquire (Argued)

Thomas K. Bouregy, Jr., Esquire

Wiss & Cooke

Three University Plaza

Suite 207

Hackensack, NJ 07602

Attorneys for Donjon Marine

Company, Inc.

Edward R. Murphy, Esquire

Elizabeth A. Dalberth, Esquire

Murphy & O'Connor

65 Haddon Avenue

Haddonfield, NJ 08033

Gary S. Lee, Esquire (Argued)

Thomas R. Beer, Esquire

Barger & Wolen

500 Fifth Avenue

46th Floor

New York, NY 10110

Attorneys for Breakwaters

International, Inc.

OPINION OF THE COURT

ROTH, Circuit Judge:

This interlocutory appeal involves two questions:

1) whether we have jurisdiction of it, and 2) whether an

individual is precluded from being a "seaman" for purposes

of the Jones Act, 46 U.S.C. 668, if his relationship with a

barge/diving station in question is only 10 days in

duration. On the first issue, we will deny appellee/third-

party defendant, Breakwaters International, Inc.'s, motion

to dismiss the appeal. We find that the pleadings and

2

actions of the parties were sufficient to invoke admiralty

jurisdiction for purposes of Fed. R. Civ. P. 9(h). We,

therefore, have jurisdiction of this appeal of a non-final

order under 28 U.S.C. 1292(a)(3). On the second issue,

the district court held that Layne Foulk, a freelance

commercial diver, had insufficient durational connections

to the barge to be considered a "seaman" covered by the

Jones Act. Foulk v. Donjon Marine Co, Inc., 961 F. Supp.

692, 698 (D.N.J. 1997). We do not agree and will reverse.

I. Facts

In April 1993, the Borough of Avalon, New Jersey,

contracted with Breakwaters to erect an artificial reef off

Avalon's coast. Breakwaters contracted with Donjon to

provide material, barges, tugs, and a floating crane barge.

Breakwaters hired freelance divers, including Foulk, to

perform some of the work. Construction began on July 10,

1993, under Breakwaters' direction. Donjon's crane barge,

the Farrell 256, anchored 150 feet offshore, was used both

to install the reef and as a dive station for the dive crew,

consisting of Foulk and three other commercial divers who

were to assist in the placement of the reef. As dive station,

the barge held air compressors, a communications box, and

other diving equipment. The dive crew were to sleep ashore

and to report to the barge by motor launch each morning.

Foulk was hired to work for 10 days, the duration of the

project. On his first day of work, Foulk was injured when,

while in the water, he was caught between a jetty and the

clamshell bucket operated by the barge crane. He suffered

various fractures, a collapsed lung and an injured right

shoulder.

On January 6, 1995, while on disability, Foulk and his

wife, Marjorie, filed suit against Donjon and Breakwaters,

sounding in negligence and general maritime law. The

Foulks alleged both diversity and admiralty jurisdiction. On

February 14, 1995, before any answer was filed, the Foulks

amended their complaint to name only Donjon as defendant

on claims of negligence and of the unseaworthiness of

Donjon's vessel. Jurisdiction was once again grounded in

both diversity and admiralty. On March 10, 1995, Donjon

filed both an answer and a third-party claim against

3

Breakwaters for indemnity and contribution. On June 1,

1995, the Magistrate Judge granted Donjon's oral motion to

amend its third-party complaint to make a claim against

Breakwaters in favor of the Foulks, pursuant to Fed. R. Civ.

P. 14(c). Breakwaters did not object to this amendment.

The parties subsequently submitted a joint pre-trial order

which stated inter alia, that "jurisdiction of the Court arises

under the Admiralty Law as modified by the Jones Act, 46

U.S.C. 668." Breakwaters sought partial summary

judgment on its contention that Foulk was not a "seaman"

under the Jones Act, 46 U.S.C. 688. Donjon and Foulk

cross-moved for partial summary judgment that Foulk was

a Jones Act "seaman." On April 9, 1997, the District Court

granted Breakwaters' motion and denied Donjon and

Foulk's motion to the contrary. Foulk v. Donjon Marine Co,

Inc., 961 F. Supp. 692, 698 (D.N.J. 1997). Donjon and the

Foulks filed notices of interlocutory appeal on April 21,

1997, and April 30, 1997, respectively. 28 U.S.C.

1292(a)(3). On May 9, 1997, Breakwatersfiled a motion to

dismiss the appeal. For the reasons set forth below, we will

deny Breakwaters motion to dismiss, and, considering the

merits of the appeal, we will reverse the district court grant

of partial summary judgment in favor of Breakwaters.

II. Jurisdiction

Before we reach the merits of this appeal, we mustfirst

resolve Breakwaters' motion to dismiss it. Donjon asserts

that the jurisdictional basis for its interlocutory appeal is

28 U.S.C. 1292(a)(3)1 which provides in part:

[T]he court of appeals shall have jurisdiction of appeals

from:

(3) Interlocutory decrees of such district courts or

the judges thereof determining the rights and

liabilities of the parties to admiralty cases in which

appeals from final decrees are allowed.

_________________________________________________________________

1. Donjon concedes that 28 U.S.C. 1291 is inapplicable as a basis for

jurisdiction because there was no "final judgment" of the district court.

Appellant Donjon's Br. in Opp. to Appellee Breakwater's Mot. to Dismiss,

at 11; See United States v. Brook Contracting Corp., 759 F.2d 320 (3d

Cir. 1985).

4

To use 1292(a)(3) as a basis for appellate jurisdiction of

an interlocutory order, such as a grant of partial summary

judgment, a plaintiff must be asserting an admiralty or

maritime claim within the meaning of Fed. R. Civ. P. 9(h).

This Rule states as follows:

A pleading or count setting forth a claim for relief

within the admiralty and maritime jurisdiction that is

also within the jurisdiction of the district court on

some other ground may contain a statement identifying

the claim as an admiralty or maritime claim for the

purposes of Rules 14(c), 38(e), 82 and the Supplemental

Rules for Certain Admiralty and Maritime Claims. If the

claim is cognizable only in admiralty, it is an admiralty

or maritime claim for those purposes whether so

identified or not. . . . The reference in [28 U.S.C.

1292(a)(3)] to admiralty cases shall be construed to

mean admiralty and maritime cases within the

meaning of this subdivision [Fed. R. Civ. P. 9](h).

(emphasis added).

In both its initial complaint against Breakwaters and

Donjon and in its First Amended Complaint against only

Donjon, Foulk asserted two bases for subject-matter

jurisdiction: admiralty and diversity.2 When a federal

plaintiff makes a claim in admiralty or joins an admiralty

claim with another claim, certain special procedures and

rules apply: Rules 14(c), 38(e), 82, the Supplemental Rules

_________________________________________________________________

2. The First Complaint states:

The jurisdiction of this Court arises under the Admiralty law by

the

Jones Act, 46 U.S.C. 688, and the diversity jurisdiction of the

Court, 28 U.S.C. 1332, the amount in controversy being in excess

of Fifty Thousand Dollars ($50,000.00) exclusive of interest and

costs.

Compl. and Jury Demand, 5. The First Amended Complaint states:

The jurisdiction of this Court arises under the Admiralty law and

the diversity jurisdiction of the Court, 28 U.S.C. 1332, the

amount

in controversy being in excess of Fifty Thousand Dollars

($50,000.00) exclusive of interest and costs.

First Am. Compl. and Jury Demand, 4.

5

for Certain Admiralty and Maritime Claims, and 28 U.S.C.

1292(a)(3). Rule 9(h) helps clarify the applicability of these

admiralty and maritime rules and procedures in a case

where more than one basis for subject matter jurisdiction

has been asserted. To assist the court and the parties in

recognizing the presence of an admiralty claim in a multi-

claim suit, Rule 9(h) provides that the complaint "may

contain a statement identifying the claim as an admiralty or

maritime claim ... ." See Fedorczyk v. Caribbean Cruise

Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996).

Breakwaters grounds its motion to dismiss the appeal on

the fact that, in asserting admiralty jurisdiction in both the

original and the amended complaints, the Foulks do not

specifically cite to Rule 9(h) and, as a consequence, do not

"identify the pleading as an admiralty claim." For this

reason, Breakwaters contends that the Foulks did not

invoke admiralty jurisdiction and cannot employ the

procedures associated with it, including the use of 28

U.S.C. 1292(a)(3), the jurisdictional basis for this appeal.

As a result, Breakwaters asserts that section 1292(a)(3) is

inapplicable and that this appeal must be dismissed for

lack of jurisdiction.

The issue that we must resolve is how specific a party

must be in identifying an admiralty claim in a complaint

when that party is pleading alternative theories of subject

matter jurisdiction. Generally, under the liberal notice

pleading practices in federal civil cases, a claimant "does

not have to set out in detail the facts upon which the claim

for relief is based, but must merely provide a statement

sufficient to put the opposing party on notice of the claim."

2 Moore's Federal Practice, 8.04[1] (Matthew Bender 3d

ed. 1988); see Hishon v. King & Spaulding, 467 U.S. 69,

78-79 (1984); Conley v. Gibson, 355 U.S. 41, 47 (1957)

(pleading must contain only a short and plain statement

sufficient to give notice); Fed. R. Civ. P. 8. Similarly, the

claimant must include "a short and plain statement of the

grounds upon which the court's jurisdiction depends." Fed.

R. Civ. P. 8(a)(1). Plaintiff's complaints, see n.2, both clearly

stated two jurisdictional bases: diversity and admiralty.

There are, however, embellishments to the Rule 8 notice

pleading provisions. One of these is Fed. R. Civ. P. 9(h)

6

which explains that a party in Foulk's position, who has set

forth two jurisdictional bases, "may" include a "statement

identifying the claim as an admiralty or maritime claim."

(emphasis added). By affirmatively including such a

statement, a party clearly describes a claim as being one in

admiralty. See Advisory Committee Notes, Fed. R. Civ. P. 9,

1966 Amendment ("the preferable solution [for designating

a claim as an admiralty claim] is to allow the pleader who

now has power to determine procedural consequences by

filing a suit in admiralty to exercise that power under

unification ... by a simple statement in his pleading to the

effect that the claim is an admiralty or maritime claim."); cf.

Fedorczyk, 82 F.3d at 73 (stating that "[t]o invoke admiralty

jurisdiction ... a plaintiff must affirmatively insert a

statement in the pleadings identifying the claim as an

`admiralty or maritime claim'.").

A direct citation to Rule 9(h) is unambiguous and may be

considered by some to be preferable. See Wright & Miller,

Federal Practice and Procedure: Civil 2d 1211 (West

1990); Fed. R. Civ. P. Forms 2(d).3 However, nothing in

Rule 9(h) restricts the invocation of admiralty jurisdiction to

a specific citation to that rule. Indeed, Rule 9(h)'s use of the

word "may," instead of "must," suggests that the specific

use of the words "Rule 9(h)" is not required.

We conclude then that a plaintiff, invoking admiralty

jurisdiction, does not need to make direct reference to

Rule 9(h). The question remains, however, just how specific

a reference to admiralty jurisdiction must be in order to

invoke it. Our review of the facts of the present case

convinces us that the pleadings, along with the parties'

actions, are sufficient to invoke it.

_________________________________________________________________

3. In fact a number of district courts have so held. See, e.g., Subaru

Distributors Corp. v. General Ship Corp., 167 F.R.D. 342, 343 (D. Mass

1996); Lewis v. United States, 812 F.Supp. 620, 628 (E.D. Va. 1993);

Siragusa v. Standard Steamship Owners Protection, 710 F.Supp. 404,

407 (D.P.R. 1989); Banks v. Hanover Steamship Corp., 43 F.R.D. 374,

376-7 (D.Md. 1967). By contrast, the Fifth Circuit has held to the

contrary, that explicit reference to Fed. R. Civ. P. 9(h) is not

necessary.

Teal v. Eagle Fleet, Inc., 933 F.2d 341, 345 (5th Cir. 1991); T.N.T.

Marine

Service, Inc. v. Weaver Shipyards and Dry Docks, Inc., 702 F.2d 585,

587-88 (5th Cir.), cert. denied, 104 S.Ct. 151 (1983).

7

Shortly after defendant/third-party plaintiff Donjonfiled

its third-party complaint against Breakwaters for indemnity

and contribution, the magistrate judge granted Donjon's

oral motion to amend its third-party complaint to reflect

that it was seeking a claim for judgment against

Breakwaters in favor of plaintiffs pursuant to Fed. R. Civ.

P. 14(c). See Order Amending Third Party Complaint, June

1, 1995. A third party claim under Fed. R. Civ. P. 14(c) can

only be made with respect to admiralty claims as

contemplated under Rule 9(h). See Fed. R. Civ. P. 14(c)

("When a plaintiff asserts an admiralty or maritime claim

within the meaning of Rule 9(h), the defendant or claimant,

as a third party plaintiff, may bring in a third party

defendant who may be . . .liable. . . by way of remedy over,

contribution or otherwise on account of the same

transaction . . .."); Teal v. Eagle Fleet, Inc., 933 F.2d 341,

344 n.1 (5th Cir. 1991) ("Third party claims under

Rule 14(c) are only available in admiralty or maritime

claims."). Donjon's Rule 14(c) claim, then, made it clear to

all parties that this case would proceed, in part at least, as

an admiralty claim.4

Furthermore, the parties' manifestation of intent to

proceed under admiralty jurisdiction was confirmed by the

final pre-trial order, entered with the consent of

Breakwaters, which stated that admiralty alone was the

basis for jurisdiction. See Joint Final Pre-Trial Order ("The

jurisdiction of the Court arises under Admiralty Law as

modified by the Jones Act, 46 U.S.C. Section 688."; see also

_________________________________________________________________

4. The dissent argues that "actions by a defendant should not control the

question of whether a plaintiff meant to invoke admiralty jurisdiction."

Dissent at 22. We do not suggest that defendant-third party plaintiff

Donjon was single-handedly able to invoke admiralty procedure on

behalf of plaintiff; rather that because no parties objected to Donjon's

motion, it became clear that all parties tacitly agreed to pursue an

admiralty claim, and that this case would proceed, at least in part, as

such. Moreover the fact that the plaintiffs joined in the Pretrial Order

and are now appellants before us on this interlocutory appeal further

demonstrates that they are cognizant of the invocation of admiralty

jurisdiction. The dissent's ensuing cite makes clear that actions of the

plaintiff are relevant to what jurisdiction the plaintiff has invoked.

Dissent at 22 citing Bryan v. Associated Container Transp., 837 F.Supp.

633, 641 (D.N.J. 1993).

8

Fedorczyk, 82 F.3d at 73 (holding that the district court did

not have admiralty jurisdiction and noting that the district

court had entered a pretrial order, stating that the

"jurisdictional predicate" was diversity of citizenship,

without objection from any party (including appellant

Fedorczyk who was arguing in favor of admiralty

jurisdiction)). Having concluded that the parties' pleadings

and actions were sufficient to invoke admiralty jurisdiction,

we have jurisdiction to hear Foulks' and Donjon's

interlocutory appeal pursuant to 28 U.S.C. 1292(a)(3).

III. Seaman Status

Turning to the merits of the appeal, Foulk and Donjon

argue that the District Court erred in granting partial

summary judgment on the issue of Layne Foulk's seaman

status under the Jones Act. The Jones Act provides a cause

of action in negligence for "any seaman" injured "in the

course of his employment." 46 U.S.C. 688. There are two

components to "seaman" status. See McDermott Int'l Inc., v.

Wilander, 111 S.Ct. 807, 813 (1991); Chandris, Inc. v.

Latsis, 115 S.Ct. 2172 (1995). First, the "employee's duties"

must "contribut[e] to the function[ing] of the vessel or to the

accomplishment of its mission." Chandris, 115 S.Ct. at

2190. Second, the worker's "connection to the "vessel in

navigation" must be "substantial in terms of both its

duration and its nature." Id. The district court found that

while the first requirement was met, as a matter of law, the

second requirement could not be met and thus granted

partial summary judgment to Breakwaters. Foulk, 961

F.Supp. at 698. The district court reasoned that Foulk's

10-day assignment was temporary and, therefore, not of

sufficient duration to satisfy the Chandris "substantial

duration" requirement. Id. ("Ten days (excluding nights),

with no view towards a more permanent relationship, is

simply too short a duration to satisfy the Chandris

durational requirement for seaman status."). We review the

district court grant of summary judgment5 de novo. See

_________________________________________________________________

5. The standard for summary judgment is well settled: "Summary

judgment is appropriate when the admissible evidence fails to

demonstrate a genuine issue of material fact, and the moving party is

9

Semper v. Johnson and Higgins, 45 F.3d 724, 727 (3d Cir.

1995).

The Jones Act fails to define the term "seaman." 46

U.S.C. 688. In 1927, Congress provided some content to

the Jones Act seaman requirement by passing the

Longshore and Harbor Workers' Compensation Act

(LHWCA). 33 U.S.C. 901-950. The LHWCA provides the

exclusive remedy for land-based maritime workers and

excludes from its purview "a master or member of a crew of

any vessel." 33 U.S.C. 902(3)(G). The Jones Act and

LHWCA are mutually exclusive. Because eligibility under

the LHWCA precludes eligibility under the Jones Act,

"master or member of a crew" must be seen as a refinement

of the term "seaman" in the Jones Act. Harbor Tug and

Barge Co. v. Papai, 117 S.Ct. 1535, 1538 (1997); McDermott

Int'l Inc., v. Wilander, 111 S.Ct. 807, 813 (1991).

More recently, the Supreme Court has provided a

framework from which to analyze "seaman" status for

purposes of the Jones Act, providing two essential

requirements. See McDermott Int'l, 111 S.Ct. at 813;

Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995). First, the

worker's duty must be to contribute to the functioning of

the vessel, and second, the worker's connection to the

vessel must be "substantial in terms of both its duration

and nature." Chandris, 115 S.Ct. at 2190. The Court

explained that the purpose of the "seaman" requirement is

to "separate the sea-based maritime employees who are

entitled to Jones Act protection from those land-based

workers who have only a transitory or sporadic connection

to a vessel in navigation," reserving seaman status for those

who are regularly exposed to the perils of the sea. Id. The

_________________________________________________________________

entitled to judgment as a matter of law. Fed. R. Civ. P 56(c). When, as

here, the nonmoving party bears the burden of persuasion at trial, the

moving party may meet its burden on summary judgment by showing

that the nonmoving party's evidence is insufficient to carry that burden.

The nonmoving party creates a genuine issue of material fact if he

provides sufficient evidence to allow a reasonable jury to find for him at

trial. We give the nonmoving party the benefit of all reasonable

inferences." Wetzel v. Tucker, No. 97-7207, slip op. at 4, n.2 (3d Cir.

Mar. 23, 1998) (citations omitted).

10

Court made clear that the "total circumstances of an

individual's employment must be weighed to determine

whether he had a sufficient relation to the . . . vessels." Id.

Furthermore, the issue of seaman status is a mixed

question of fact and law. Id. Once the court defines the

appropriate standard, the trier of fact must decide whether

a particular employee meets that standard and is thus a

seaman. Id.; Griffith v. Wheeling Pittsburgh Steel Corp., 521

F.2d 31, 36-37 (3d Cir. 1975). "Nevertheless,`summary

judgment . . . is mandated where the facts and the law will

reasonably support only one conclusion." Harbor Tug, 117

S.Ct. at 1540. The District Court granted Breakwaters'

motion for partial summary judgment on seaman status,

reasoning that the facts and the law support only the

conclusion that Foulk was not a seaman. We do not agree.

There is no question that Foulk met the first requirement

-- he contributed to the functioning of the vessel and to the

accomplishment of its mission. As the district court found,

the mission of the vessel in question, the Farrell 256, was

the installation of an artificial reef. Foulk, 961 F.Supp. at

696. Foulk was employed as a diver whose duty it was to

aid in the installation of the reef. See Wilander, 111 S.Ct.

at 817 ("It is not necessary that a seaman aid in navigation

or contribute to the transportation of the vessel, but a

seaman must be doing the ship's work.").

There is also no question that Foulk met the first part of

the second requirement -- his connection to the vessel was

substantial in nature. As the district court found, Foulk

and the dive crew were necessary for the successful

completion of the Farrell 256's project -- the construction

of the artificial reef. Foulk, 961 F.Supp. at 697.

Furthermore, the profession of commercial diving is

maritime in nature as it cannot be done on land. Wallace

v. Oceaneering Int'l, 727 F.2d 427436 (5th Cir. 1984).

Commercial divers are regularly exposed to the perils of the

sea, the protection from which was the purpose of the

Jones Act seaman requirement. Chandris, 115 S.Ct. at

2190.

There is a question, however, whether Foulk met the

second part of the second requirement -- that Foulk's

11

connection to the Farrell 256 was substantial in duration.

Foulk had worked alongside the Farrell 256 on the Avalon

reef project for only half a day when he was injured.

Nevertheless, under the "no snapshot" doctrine, articulated

in Chandris, a court does not evaluate a worker's

connection to a vessel or fleet at the moment of injury.

Instead, the court must consider his intended relationship,

as if he had completed his mission uninjured. 115 S.Ct. at

2187, 2191-92. The contemplated arrangement between

Foulk and the Farrell 256 was for 10 days' work. Thus,

under the "no snapshot" doctrine, 10 days, not a few hours,

is the appropriate durational measure.

The question then is whether Foulk qualifies as a Jones

Act "seaman" when his durational connection to the Farrell

256 was only 10 days, i.e,. whether 10 days is sufficient for

"substantial duration." The district court found that, as a

matter of law, a 10 day relationship was too short to satisfy

the Chandris durational requirement. Foulk, 961 F.Supp. at

698.6

We conclude that the durational element cannot be

answered by an absolute measure. It is the temporal

element and the nature of the activities performed that,

taken together, determine seaman status. Chandris, 115

S.Ct. at 2190-91. While the Supreme Court did adopt "the

centerpiece of the formulation used by the Court of

Appeals" in that case (the two-part test), and did find it

"important that a seaman's connection to a vessel. . . be

substantial in both respects (duration and nature)," id. at

2191, the Court specifically rejected "the temptation to

create detailed tests to effectuate the congressional

purpose, tests that tend to become ends in and of

themselves." Id. at 2190. To define substantial duration by

_________________________________________________________________

6. The district court cited, as relevant points in arriving at its

decision,

the fact that Foulk went out to the diving barge each morning and went

home each evening; he did not eat breakfast or supper and he did not

sleep on board the barge. Foulk, 961 F.Supp. at 698. Nevertheless,

where Foulk ate or slept had nothing to do with the performance of his

duties. Nor did the location where Foulk ate or slept in any way affect

the maritime nature of his duties. For that reason, we will look at the

duration of the job as ten days, without subtracting for the nights on

shore.

12

an absolute number would be to create such a test. The

ultimate inquiry is "whether the worker in question is a

member of the vessel's crew or simply a land-based

employee who happens to be working on the vessel at a

given time," id. at 2191, and the two-part test is merely an

aid in making that determination. So while the Court did

explain that both the duration and the nature of the

connections be "substantial," id., the inquiry is one in the

totality of circumstances. Id. at 2190. It is inappropriate to

attempt to determine the minimum durational element by

an absolute number, such as 10 days.

Furthermore, this reasoning is consistent with this

court's holding that "lack of long-continued[durational]

attachment to a vessel cannot, as a matter of law, serve to

deny [Jones Act] seaman status to an employee who is

injured while assigned to and performing normal crew

service." Reeves v. Mobile Dredging & Pumping Co. Inc., 26

F.3d 1247, 1252 (3d Cir. 1994) citing with approval Latsis

v. Chandris, Inc., 20 F.3d 45 (2d Cir. 1994) aff'd 115 S.Ct.

2172. Although pre-Chandris, this court in Reeves was

cognizant of the "permanence" requirement that required a

worker's assignment to be substantial in duration, the

holding eventually reached by the Supreme Court in

Chandris. Our holding in Reeves that the lack of long

attachment to a vessel cannot deny seaman status as a

matter of law remains effective post-Chandris. Here, Foulk

was clearly performing the "normal crew service" of the

Farrell 256 -- installation of the artificial reef. The fact that

he was only going to do it for 10 days does not, by itself,

mandate summary judgment. Ten days is not a "clearly

inadequate temporal connection to vessels in navigation,

sufficient to take the question from the jury by granting

summary judgment." See, e.g. Palmer v. Fayard Moving and

Transportation Corp., 930 F.2d 437 (5th Cir. 1991). A jury

could reasonably find that an employee's connections to a

vessel are substantial in both duration and nature even if

the duration contemplated is 10 days. The analysis of

seaman status, and ultimately of whether an employee's

connections are substantial in duration and nature, may

include a multiplicity of factors. See, e.g., Betrand v.

International Mooring & Marine, Inc., 700 F.3d 240 (5th Cir.

13

1983) cert. denied, 464 U.S. 1069 (1984). The contemplated

number of days of employment is only one of these factors.

Consequently, we will reverse the trial court's grant of

summary judgment on seaman status and remand the case

to the district court for further proceedings consistent with

this opinion.7

_________________________________________________________________

7. The dissent comments on the implications of this opinion vis-a-vis

plaintiffs' demand for a jury trial. Dissent at 23. We do not pass on this

question as it is not presently before us at this interlocutory appeal of

a

grant of partial summary judgment. If this question were to come up at

a later date, it would of course be governed by relevant legal precedent

including Fitzgerald v. United States Line Co. , 83 S.Ct. 1646 (1963) and

Haskins v. Point Towing Co., 395 F.2d 737 (3d Cir. 1968).

14

GREENBERG, Circuit Judge, dissenting:

I respectfully dissent from my colleagues' determination

that this court has jurisdiction to hear this interlocutory

appeal. Because I dissent on jurisdictional grounds, I do

not reach the substantive issue raised on the appeal.

An interlocutory appeal under 28 U.S.C. 1292(a)(3) is

appropriate only in a case based on admiralty jurisdiction.

When a complaint sets forth allegations potentially

cognizable under both the admiralty and non-admiralty

jurisdiction of the district court, it must contain a

statement identifying the claim as one in admiralty in order

to invoke the district court's admiralty jurisdiction under

28 U.S.C. 1333. See Fed. R. Civ. P. 9(h). This designation

is significant, because claims arising under admiralty

jurisdiction to some degree involve different procedures

from claims at law, not the least of which is the denial of

a jury trial. See Fed. R. Civ. P. 38(e); In re Consolidation

Coal Co., 123 F.3d 126, 132 (3d Cir. 1997). In determining

whether the plaintiff made the admiralty jurisdiction

election, courts must look to the face of the complaint to

see if it contains the appropriate jurisdictional allegations.

See Heilman v. United States, 731 F.2d 1104, 1111 (3d Cir.

1984).

In the present case, the initial complaint states that "[t]he

jurisdiction of this Court arises under the Admiralty law as

modified by the Jones Act, 46 USC 688, and the diversity

jurisdiction of the Court, 28 USC 1332 . . . ." Complaint

at 2. The language in the first amended complaint parallels

this allegation, but omits the reference to the Jones Act,

instead stating that the court's jurisdiction "arises under

the Admiralty law and the diversity jurisdiction of the

Court, 28 USC 1332 . . . ." First Amended Complaint at 1.

The reason for this omission of the Jones Act allegation is

that the Foulks dropped their Jones Act claim against

Breakwaters, Layne B. Foulk's employer. The initial

complaint and the first amended complaint also contain a

demand for a jury trial, a right which the Foulks preserved

in the final pretrial order. See Complaint at 7; First

Amended Complaint at 4; Joint Final Pretrial Order at 1.

In asserting an action under the Jones Act, a plaintiff can

elect to sue either under admiralty jurisdiction or at law

15

invoking federal question jurisdiction. See Yates v. Dann,

223 F.2d 64, 66 (3d Cir. 1955); 14 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure 3677 at

492 (Supp. 1997). Accordingly, because the Foulks' original

complaint alleged jurisdiction under the Jones Act, it stated

a claim potentially cognizable under either admiralty or

non-admiralty jurisdiction. However, the complaint did not

mention specifically Rule 9(h) or 28 U.S.C. 1333;

therefore, while the Foulks plainly invoked the court's

diversity jurisdiction, it is unclear whether in addition they

intended to invoke the court's admiralty jurisdiction or

whether they chose to rely on the court's federal question

jurisdiction. When the Foulks amended their complaint to

eliminate the Jones Act claim, this action also eliminated

any potential federal question jurisdiction; but the

jurisdictional question remained unclear, because they still

could rely on two possible bases for jurisdiction, i.e.,

admiralty and diversity jurisdiction.

In discussing the language in a complaint necessary to

invoke admiralty jurisdiction in cases with multiple possible

bases for jurisdiction, we have held that "[t]o invoke

admiralty jurisdiction . . . a plaintiff must affirmatively

insert a statement in the pleadings identifying the claim as

an `admiralty or maritime claim.' " Fedorczyk v. Caribbean

Cruise Lines, LTD, 82 F.3d 69, 73 (3d Cir. 1996); see also

Bryan v. Associated Container Transp., 837 F. Supp. 633,

641-42 (D.N.J. 1993) (holding that the claim was based on

diversity jurisdiction and not maritime jurisdiction in part

because the party did not specifically invoke maritime

jurisdiction under Rule 9(h)). However, beyond this

statement, we did not provide any guidance in Fedorczyk

instructive here; thus, it is appropriate to examine

decisions of other courts that have confronted this problem

to determine what our rule should be.

The Court of Appeals for the Fifth Circuit has crafted a

liberal rule regarding the language necessary to elect

admiralty jurisdiction under Rule 9(h). See T.N.T. Marine

Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d

585, 587-88 (5th Cir. 1983) (holding that an allegation that

"[t]his is also a suit for breach of a maritime contract and

for maritime tort" was sufficient to invoke admiralty

16

jurisdiction). Under this rule, the complaint does not have

to mention Rule 9(h) specifically, see Bodden v. Osgood,

879 F.2d 184, 186 (5th Cir. 1989); instead, the complaint

only need contain "a simple statement asserting admiralty

or maritime claims." Teal v. Eagle Fleet, Inc., 933 F.2d 341,

345 (5th Cir. 1991) (quoting T.N.T. Marine, 702 F.2d at

588). However, not every complaint that contains

allegations relating to admiralty should be considered to

have invoked admiralty jurisdiction. Instead, courts must

look to the "totality of the circumstances" of the case.

Bodden, 879 F.2d at 186.

The Court of Appeals for the First Circuit also has held

that the mention of Rule 9(h) is not required. In Concordia

Co. v. Panek, 115 F.3d 67, 72 (1st Cir. 1997), the court

held that to invoke admiralty jurisdiction, "the preferred

technique is to invoke expressly Rule 9(h)," but the court

did not require litigants to do so. Instead, the court

examined the pleadings, which stated that the claim was

"In Admiralty," and concluded that this language was

sufficient to invoke admiralty jurisdiction in light of the fact

that the litigant did not demand a jury trial. Id.

The Court of Appeals for the Ninth Circuit has not

adopted such a liberal rule, but it also has not required the

specific mention of Rule 9(h). In Trentacosta v. Frontier Pac.

Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987),

the amended complaint contained a claim seeking relief

under the "Jones Act and General Maritime Law." The

amended complaint did not invoke admiralty jurisdiction;

instead, the plaintiff "was careful to invoke federal

jurisdiction only under 28 U.S.C. 1331." Id. The court

held that such language was insufficient to invoke

admiralty jurisdiction, because the plaintiff elected only to

invoke jurisdiction under the "law" side rather than on the

"admiralty side." Id.; see generally Owens-Illinois, Inc. v.

United States Dist. Court for the W. Dist. of Wash., 698 F.2d

967, 972 n.2 (9th Cir. 1983) (reasoning that requiring a

statement specifically mentioning Rule 9(h) to invoke

admiralty jurisdiction seems to be the correct rule, but

holding that the court did not need to reach the question).

Thus, even though the court did not require the specific

mention of Rule 9(h), the Court of Appeals for the Ninth

17

Circuit seems to have adopted a stricter pleading standard

than the Courts of Appeals for the Fifth and First Circuits.

Although the Court of Appeals for the Fourth Circuit has

not ruled on this issue, a number of district courts within

that circuit have required the specific mention of Rule 9(h)

in order to invoke admiralty jurisdiction in cases with

multiple bases for jurisdiction. See Lewis v. United States,

812 F. Supp. 620, 628 (E.D. Va. 1993) (requiring a specific

mention of Rule 9(h)); see also Banks v. Hanover Steamship

Corp., 43 F.R.D. 374, 376-77 (D. Md. 1967) (requiring a

specific statement of admiralty jurisdiction). Thus, these

rulings have established the strictest standard among the

federal courts that have addressed this issue.

After reviewing these cases and the specific facts of this

case, I would hold that we should be somewhat exacting in

our view of the pleadings with regards to invoking admiralty

jurisdiction in cases involving more than one potential

jurisdictional base. While under the Federal Rules of Civil

Procedure "[n]o technical forms of pleading or motions are

required," Fed. R. Civ. P. 8(e)(1), it is important for a

plaintiff to alert the district court that he or she intends to

invoke the court's admiralty jurisdiction. If the plaintiff

wishes to invoke admiralty jurisdiction and its

accompanying procedures in a case involving more than

one potential jurisdictional base, the plaintiff should be

required to state specifically that the claim is "an admiralty

or maritime claim within in the meaning of Rule 9(h)."5

Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure 1313 at 719 (2d ed. 1990). As Professor

Thomas J. Schoenbaum has stated:

If, however, the claim is cognizable not only in

admiralty but also on some other ground of federal

jurisdiction (such as diversity), the pleader is put to an

election whether to invoke the special admiralty

procedures and remedies. To plead an admiralty or

maritime claim in such a case, the pleading must, in

addition to the admiralty jurisdictional allegations,

contain an identifying statement (or its equivalent) as

follows: This is an admiralty or maritime claim within

the meaning of Rule 9(h). If this identifying statement is

18

not made, the claim may be treated as a non-maritime

civil action.

Thomas J. Schoenbaum, Admiralty and Maritime Law

21-1 at 467 (2d ed. 1994) (emphasis in original) (footnotes

omitted).

This case, of course, involves the precise situation which

Schoenbaum describes. Application of the rule as set forth

by Schoenbaum would place the court and the other

litigants on notice that the plaintiff intends to invoke the

admiralty jurisdiction of the district court. Such a rule

requiring the complaint to mention Rule 9(h) is not unduly

harsh, as the plaintiff can control the situation completely

with his or her pleadings. Because the Foulks failed to

mention Rule 9(h), I would hold that they did not make the

required election under that rule and therefore would

dismiss this appeal for lack of jurisdiction.

In holding that no such statement is required, the

majority relies on the language of Rule 9(h) (emphasis

added) which provides:

A pleading or count setting forth a claim for relief

within the admiralty and maritime jurisdiction that is

also within the jurisdiction of the district court on

some other ground may contain a statement identifying

the claim as an admiralty or maritime claim for the

purposes of Rules 14(c), 38(e), 82, and the

Supplemental Rules for Certain Admiralty and

Maritime Claims. . . .

The majority contends that the use of the word "may"

demonstrates that specific invocation of Rule 9(h) is not

necessary; however, in my view this argument is

unfounded. This aspect of Rule 9(h) describes a case where,

as here, a party may invoke multiple potential bases for

jurisdiction--admiralty jurisdiction and one or more other

jurisdictional bases, i.e., federal question or diversity

jurisdiction. Specifically, after the filing of the first amended

complaint, the Foulks could rely on diversity jurisdiction as

an alternative to admiralty jurisdiction. In this dual or

multiple jurisdictional setting, Rule 9(h) does not require

plaintiffs to invoke admiralty jurisdiction; instead, it

provides them with a choice--they can rely either on

19

admiralty jurisdiction or another jurisdictional ground. The

use of the word "may" in Rule 9(h) refers to this choice.

Plaintiffs "may" invoke admiralty jurisdiction or in an

appropriate case they may chose to rely on federal question

or diversity jurisdiction. To do the latter, they merely do not

invoke Rule 9(h). Thus, contrary to the majority's reasoning,

the specific wording in Rule 9(h), particularly the use of

"may," leads to the conclusion that a plaintiff specifically

must invoke the court's admiralty jurisdiction for the case

to be in admiralty if it is otherwise within the jurisdiction

of the district court. "May" simply means that when both

admiralty and other jurisdictional bases are available, the

plaintiff has the option to select admiralty jurisdiction. See

Fed. R. Civ. P. 9 advisory committee's note (1966

Amendment) (noting that after the unification of the rules of

procedure, "the pleader must be afforded some means of

designating his claim as the counterpart of the present suit

in admiralty, where its character as such is not clear.").

"May" surely does not mean that a plaintiff can select

admiralty jurisdiction either expressly or covertly and leave

the court and the other parties guessing as to the plaintiff's

intentions.

Even using the more liberal standard of the majority, I

would not hold that the Foulks, in fact, did invoke

admiralty jurisdiction in view of the totality of the

circumstances involved in this case. Here, as was true of

the plaintiff in Trentacosta, the Foulks were careful not to

invoke admiralty jurisdiction under Rule 9(h). Instead, the

original complaint referred to the Jones Act and federal

diversity jurisdiction, and specifically did not mention

admiralty jurisdiction. After all, to say, as did the Foulks,

that the "jurisdiction of this Court arises under Admiralty

law as modified by the Jones Act" is not to invoke admiralty

jurisdiction because, as I set forth above, a Jones Act case

can be brought in the district court without invoking

admiralty jurisdiction. What the Foulks did not say is that

they are bringing the case invoking the admiralty

jurisdiction of the district court. The Foulks' first amended

complaint did not clarify the situation for while they did

allege that the court's jurisdiction "arises under the

Admiralty law," they also invoked the court's diversity

20

jurisdiction; and cases under admiralty law can be brought

in a district court under its diversity jurisdiction. See, e.g.,

Continental Cas. Co. v. Canadian Universal Ins. Co., 605

F.2d 1340, 1344 (5th Cir. 1979) ("A maritime issue may be

raised in a diversity suit; this is one significance of the

savings-to-suitors clause, 28 U.S.C. 1333, which permits

a litigant to obtain federal jurisdiction over, and jury

resolution of, an admiralty question by invoking federal

jurisdiction on an independent basis."). Thus, this language

in the first amended complaint could be interpreted as

relying solely on diversity jurisdiction and not intending to

rely on admiralty jurisdiction at all. I emphasize that the

Foulks did not specify that they were bringing the case

under the court's admiralty jurisdiction; and therefore, the

majority is wrong when it indicates that the "Foulks alleged

both diversity and admiralty jurisdiction." Slip Opinion at

3.

Furthermore, the Foulks requested a jury trial on the

issues contained in the complaint. Such a request is

inconsistent with admiralty jurisdiction, and it lends

credence to the conclusion that the plaintiff conceived of

the claim as being at law rather than under the district

court's admiralty jurisdiction. See Concordia, 115 F.3d at

72 ("One important factor in determining whether a

claimant has elected to proceed in admiralty is whether he

demanded a jury trial."); Sanders v. Seal Fleet, Inc., 1998

WL 136097, *4-5 (E.D. Tex. Mar. 23, 1998) (holding that

the action was under the court's federal question rather

than admiralty jurisdiction, because the plaintiff demanded

a jury trial and his complaint invoked the court's

jurisdiction under the Jones Act and general maritime law

rather than specifically pleading Rule 9(h)); see also In re

Consolidation Coal, 123 F.3d at 132 (noting that " `[t]here is

no right to a jury in actions instituted in admiralty' "

(citation omitted)). Are we to believe that insofar as the

Foulks invoked diversity jurisdiction they are entitled to a

jury trial while at the same time for the same claim they are

entitled to a bench trial in admiralty? As far as I am

concerned, the Foulks did not invoke admiralty jurisdiction,

and I therefore would dismiss the appeal for lack of

jurisdiction.

21

To support its determination, the majority cites the

pretrial order and Donjon's Rule 14(c) motion as evidence of

the Foulks' selection of admiralty jurisdiction. However, this

evidence is unpersuasive. First, the pretrial order did not

restrict the court's jurisdiction only to admiralty, as the

majority suggests. The order stated that the court's

jurisdiction arose under "Admiralty Law as modified by the

Jones Act 46 USC 688." In spite of the majority's

assertion, this language does not demonstrate that the

parties wished to invoke admiralty jurisdiction because as

I noted previously, a plaintiff can bring claims under the

Jones Act either in admiralty or at law. Moreover, as I

explain below, the pretrial order discloses nothing about

the Foulks' choice of jurisdiction. Therefore, although the

statement in the pretrial order mentions admiralty law as

modified by the Jones Act, in my view this reference

demonstrates nothing useful for the issue at hand. I

reiterate that there is no reason to assume that a case

under "Admiralty Law as modified by the Jones Act" is

under the admiralty jurisdiction.

Second, with regard to the Rule 14(c) motion, actions by

a defendant should not control the question of whether a

plaintiff meant to invoke admiralty jurisdiction. It was, after

all, Donjon and not the Foulks who brought the Jones Act

claim to which the pretrial order refers, as the Foulks

abandoned their Jones Act claim when they filed their first

amended complaint. The question of what jurisdiction the

plaintiff has invoked more properly is resolved by

examining the pleadings and actions of the plaintiff, not the

defendant. See generally Bryan, 837 F. Supp. at 641 ("[T]he

application of maritime law to a plaintiff's claims is a

matter about which a plaintiff exercises a degree of

control."). A defendant, by filing a third party complaint

cannot change the jurisdictional basis for a plaintiff's

complaint. Considering all of the circumstances of the case

and giving more weight to the pleadings and actions of the

Foulks, this evidence regarding the Rule 14(c) motion is not

sufficient to establish that they meant to invoke the

admiralty jurisdiction of the district court.

In a case involving both admiralty and non-admiralty

bases of jurisdiction, if a plaintiff wishes to invoke

22

admiralty jurisdiction, he or she should be required to

make that election in a clear statement specifically invoking

Rule 9(h) in order to avoid procedural problems that

otherwise could arise later, such as a dispute over whether

there should be a jury trial or, as here, over whether a

court of appeals has jurisdiction over an interlocutory

appeal. Is it too much to ask that a plaintiff be clear on this

fundamental point? The adoption of my position would

mean that disputes of the procedural and jurisdictional

kind involved on this appeal will become of historical

interest only. Moreover, in view of the rather limited size of

the admiralty bar, I am confident that a rule requiring

specific reference to Rule 9(h) would become widely known

to interested parties and would not become a trap for the

unwary plaintiff, particularly because a plaintiff's failure to

invoke Rule 9(h) is likely to preserve his or her right to a

jury trial. I repeat, however, that even applying the liberal

rule utilized by the majority in this case, I would hold that

the Foulks have not invoked the admiralty jurisdiction of

the district court.

As a result of the majority's opinion, the Foulks face a

problem that they may not recognize they have. Both of the

complaints and the final pretrial order preserved their

demand for a jury trial, and presumably the parties were

ready to proceed on that basis. However, prior to trial,

Donjon filed this appeal, in which the Foulks joined, in

response to the district court's partial grant of summary

judgment. In assuming jurisdiction over this interlocutory

appeal, the majority finds that this case rests on the

admiralty jurisdiction of the court. As a result, presumably

the Foulks have lost any right to a jury trial. 1 Based on

_________________________________________________________________

1. The majority specifically does not reach this question, instead stating

that this issue will have to be decided "at a later date" in reliance on

the

"relevant legal precedent including Fitzgerald v. United States Line Co.,

83 S.Ct. 1646 (1963) and Haskins v. Point Towing Co., 395 F.2d 737 (3d

Cir. 1968)." Slip Opinion at 14 n.7. While I agree that such a

determination will have to be made in the future, the result is

preordained and neither Fitzgerald nor Haskins will help the Foulks to

preserve their jury trial demand. Both Fitzgerald and Haskins involved

Jones Act claims brought at law that had been coupled with other

admiralty claims. See Haskins, 395 F.2d at 739-41. Because the Jones

23

their consistent demands for a jury trial, I cannot believe

that the Foulks intended to abandon that request. In the

circumstances, the Foulks by joining in this appeal may

have brought about a classic operation of the doctrine of

unintended consequences.

For the foregoing reasons, the interlocutory appeal

should be dismissed for lack of jurisdiction. Therefore, I

respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

Act claim had been brought at law, and not in admiralty, the plaintiffs

were entitled to receive a jury trial as to all issues, including the

pendent

maritime claims. However, this case is fundamentally different, because

the majority has determined that the Foulks' claims arose under the

admiralty jurisdiction of the court. As we pointed out in Haskins "the

Jones Act has been construed to permit a Jones Act claim for negligence

to be maintained as an independent admiralty action." Id. at 741. Since

this case is governed solely by the court's admiralty jurisdiction rather

than an alternative non-admiralty basis for jurisdiction such as existed

in Fitzgerald and Haskins, the Foulks cannot rely on that precedent to

demand a jury trial.

24