Booten v. Argosy Gaming Co.

NOTICE CONS. NO. 5-04-0423

Decision filed 04/18/06. The text of

this decision may be changed or IN THE

corrected prior to the filing of a

Petition for Rehearing or the APPELLATE COURT OF ILLINOIS

disposition of the same.

FIFTH DISTRICT

________________________________________________________________________

ANGELA L. BOOTEN and CRAIG L. ) Appeal from the

WILLEFORD, ) Circuit Court of

) Madison County.

Plaintiffs-Appellants, )

)

v. ) Nos. 02-L-677 & 03-L-689

)

ARGOSY GAMING COMPANY, d/b/a )

ALTON BELLE CASINO, ) Honorable

) Phillip J. Kardis,

Defendant-Appellee. ) Judge, presiding.

________________________________________________________________________

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiffs, Angela L. Booten and Craig L. Willeford, employees of defendant, Argosy

Gaming Company, doing business as the Alton Belle Casino, appeal from orders of the

circuit court of Madison County granting a summary judgment in favor of defendant. Booten

was employed as a housekeeper on board defendant's gambling boat, the M/V Alton Belle II

(Alton Belle). Willeford was employed as a slot attendant on the Alton Belle. They were

injured in separate accidents while performing their respective jobs for defendant. Plaintiffs

filed separate cases under the Jones Act (46 U.S.C. App. '688 (2000)) and the maritime

doctrine of unseaworthiness. Defendant moved for a summary judgment in both cases on the

issue of seaman status under the Jones Act. The summary judgment motions were heard by

the same judge on the same day. The trial court granted a summary judgment in favor of

defendant in both cases. The cases were consolidated on appeal.

The facts surrounding each particular accident and the issues of liability and damages

are not relevant here. Rather, our focus is on whether the Alton Belle is a "vessel in

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navigation" pursuant to the Jones Act. Plaintiffs contend the trial court erred in granting

summary judgments in favor of defendant because there was a genuine issue of material fact

regarding whether the Alton Belle was a "vessel in navigation" pursuant to the Jones Act.

We reverse and remand.

FACTS

Initially, the Alton Belle operated as a gambling boat that took excursions on the

Mississippi River pursuant to the Riverboat Gambling Act (Act) (Ill. Rev. Stat. 1991, ch.

120, par. 2402 et seq.). Under the original Act, gambling could only be conducted on

licensed "self-propelled excursion boats" during a "gambling excursion." Ill. Rev. Stat. 1991,

ch. 120, pars. 2404(d), (e). The Act required excursion boats to leave their docks and cruise

on "navigable streams" in order for gambling to be allowed. Ill. Rev. Stat. 1991, ch. 120,

pars. 2403(c), 2411(a)(1).

The Act was amended, effective June 25, 1999, to allow gambling on a "permanently

moored barge", as well as a "self-propelled excursion boat." 230 ILCS 10/4(d) (West Supp.

1999). Accordingly, riverboat gambling in Illinois can now be conducted on a boat,

regardless of whether or not the boat takes an excursion. 230 ILCS 10/3(c) (West Supp.

1999). On June 26, 1999, the 1,500-passenger Alton Belle discontinued cruising. According

to Dennis Crank, defendant's facility manager, there are no plans for the Alton Belle to

resume cruising.

In addition to the 1,500-passenger boat known as the Alton Belle, the present

gambling complex consists of a fun barge, the Spirit of America barge, the employee barge,

and the patio barge. All five components of the complex float and rise and fall with the level

of the river. The boat itself is moored to a dock and is connected to land-based utilities,

including electric, telephone, water, and sewer. Before the boat can leave the dock, the

utility lines must be disconnected, five boarding ramps must be raised, and cables that hold

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the boat to the dock must be disconnected. These procedures take approximately 15 minutes;

however, Dennis Crank testified that in the case of an emergency, it would only take the crew

approximately 5 to 7 minutes to disconnect the mooring cables.

Since June 1999, the Alton Belle has left its mooring for dedrifting approximately

five times per year. During this process the boat is spun two or three times to dislodge any

accumulated drift materials. The boat then returns to its mooring. Despite no longer

cruising, the vessel always has fuel on board and remains fully capable of navigating the

river. Defendant has never applied for permanent mooring status.

The Alton Belle is required to comply with all Coast Guard regulations for a

passenger vessel. For example, the Coast Guard requires lifesaving equipment to be on

board, so that even today the Alton Belle is equipped with 1,500 life jackets, 6 ring buoys,

and 6 inflatable rafts. The Alton Belle is inspected every 90 days by the Coast Guard to

ensure compliance with regulations. When customers are on board, a full marine crew must

also be on board. The Alton Belle employs a senior captain, 3 captains, 4 engineers, 4 mates,

and 21 deck hands. The Alton Belle remains a licensed passenger vessel.

Plaintiffs' complaints were premised on the Jones Act. Defendant filed motions for a

summary judgment on the basis that the Alton Belle was not a "vessel in navigation" and

that, therefore, neither plaintiff was a seaman, thus barring plaintiffs' claims under the Act.

The trial court agreed and entered summary judgments in defendant's favor. Each plaintiff

filed a timely notice of appeal, and the cases have been consolidated in this appeal. We

reverse and remand.

ANALYSIS

Plaintiffs first argue the trial court erred in granting summary judgments in favor of

defendant because a genuine issue of material fact exists regarding whether the Alton Belle

was a "vessel in navigation" for purposes of the Jones Act. According to plaintiffs,

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defendant's subjective intent not to navigate the Alton Belle in the future is a factor but,

without more, merely creates a genuine issue of material fact regarding whether the boat is,

in fact, permanently moored, thereby precluding the entry of a summary judgment. In a

supplemental brief, plaintiffs argue that recent decisions indicate that the Alton Belle is a

"vessel in navigation" as a matter of law. Defendant replies that the trial court did not err in

granting summary judgments in its favor because an indefinitely moored casino such as the

Alton Belle is not a vessel in navigation for purposes of the Jones Act.

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" under

the Federal Employers' Liability Act (45 U.S.C. '51 et seq. (2000)). 46 U.S.C. App. '688(a)

(2000). In order for the Jones Act to apply, the structure on which the worker is working

must qualify as a "vessel in navigation." Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 88,

116 L. Ed. 2d 405, 415, 112 S. Ct. 486, 492 (1991). Given the highly fact-intensive inquiry

necessary to determine a structure's status, the question of whether a structure constitutes a

vessel in navigation for purposes of the Jones Act is normally reserved for the jury. It is only

appropriate to remove the issue from the jury if there is no genuine issue of material fact and

the law supports only one conclusion. Chandris, Inc. v. Latsis, 515 U.S. 347, 373, 132 L. Ed.

2d 314, 340, 115 S. Ct. 2172, 2192 (1995).

The Jones Act does not define the word "vessel," but numerous cases have considered

the question of what constitutes a vessel. Defendant relies on Howard v. Southern Illinois

Riverboat Casino Cruises, Inc., 364 F.3d 854 (7th Cir. 2004), which held that the

permanently and indefinitely moored dockside casino in issue was not a vessel in navigation

for purposes of the Jones Act because it had no transportation function or purpose. In that

case, the district court determined the casino was, in fact, permanently moored based upon

statements made by defendant's agent that it intended to permanently moor the casino. The

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Seventh Circuit accepted the district court's finding that the vessel was permanently moored,

and the court applied federal summary judgment standards to conclude that despite the

vessel's residual capacity for transportation, the vessel was no longer "in navigation" as a

matter of law. Howard, 364 F.3d at 858. Other courts have also found that floating riverboat

casinos are not "vessels" under maritime law. See, e.g., Martin v. Boyd Gaming Corp., 374

F.3d 375, 377 (5th Cir. 2004); Hertz v. Treasure Chest Casino, L.L.C., 274 F. Supp. 2d 795,

807 (E.D. La. 2003); Grobe v. Hollywood CasinoBAurora, Inc., 325 Ill. App. 3d 710, 759

N.E.2d 154 (2001).

We point out, however, that in reaching its conclusion, the Howard court discounted

the weight of the actions by the defendant which were contrary to its determination. For

example, the defendant in Howard never relinquished its certificate of inspection from the

Coast Guard, nor did it ever apply for permanent mooring status. The Seventh Circuit relied

on the self-serving statement by the defendant's agent that it did not intend to cruise the

vessel. Moreover, cases decided after Howard and the other cases cited above lead us to

question whether the Seventh Circuit's holding in Howard remains valid.

For example, in the recent case of Stewart v. Dutra Construction Co., 543 U.S. 481,

160 L. Ed. 2d 932, 125 S. Ct. 1118 (2005), the Supreme Court considered whether a harbor

dredge is a vessel and concluded that it is. Stewart, 543 U.S. at 484, 160 L. Ed. 2d at 939,

125 S. Ct. at 1121. The Stewart Court stated that in order to qualify as a vessel, a ship must

be " 'used, or capable of being used, as a means of transportation on water.' 18 Stat., pt. 1, p.

1." Stewart, 543 U.S. at 489, 160 L. Ed. 2d at 942, 125 S. Ct. at 1124. The Stewart Court

recognized that "structures may lose their character as vessels if they have been withdrawn

from the water for extended periods of time" (Stewart, 543 U.S. at 496, 160 L. Ed. 2d at 947,

125 S. Ct. at 1128) and that "a watercraft is not 'capable of being used' for maritime transport

in any meaningful sense if it has been permanently moored or otherwise rendered practically

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incapable of transportation or movement" (Stewart, 543 U.S. at 494, 160 L. Ed. 2d at 945,

125 S. Ct. at 1127), but the Court also stated that a ship does not move in and out of "vessel"

status because it is temporarily "at anchor, docked ***, or berthed for minor repairs."

Stewart, 543 U.S. at 494, 160 L. Ed. 2d at 945, 125 S. Ct. at 1127. Thus, the Supreme Court

specifically declined to adopt any test for vessel status that focuses on either a craft's

"primary purpose" or whether the craft is in "actual transit" at the time of an accident.

Stewart, 543 U.S. at 495, 160 L. Ed. 2d at 946, 125 S. Ct. at 1127-28. Instead, under

Stewart, if at the time of the accident a watercraft's use as a means of transportation remains a

"practical possibility," rather than "merely a theoretical one," it is a "vessel in navigation."

Stewart, 543 U.S. at 496, 160 L. Ed. 2d at 947, 125 S. Ct. at 1128.

The dredge at issue in Stewart was described as "a massive floating platform from

which a clamshell bucket is suspended beneath the water" to remove silt from the ocean

floor. Stewart, 543 U.S. at 484, 160 L. Ed. 2d at 939, 125 S. Ct. at 1121. The Supreme

Court stated: "[The dredge] was not only 'capable of being used' to transport equipment and

workers over waterBit was used to transport those things. Indeed, it could not have dug the

Ted Williams Tunnel had it been unable to traverse the Boston Harbor ***." (Emphasis in

original.) Stewart, 543 U.S. at 495, 160 L. Ed. 2d at 946, 125 S. Ct. at 1128. The Stewart

Court pointed out "the seeming incongruity of grouping dredges alongside more traditional

seafaring vessels under the maritime statutes." Stewart, 543 U.S. at 497, 160 L. Ed. 2d at

948, 125 S. Ct. at 1129. Nevertheless, quoting from a Fourth Circuit case more than 100

years old, the Supreme Court observed that although it might be a " 'stretch of the

imagination to class the deck hands of a mud dredge in the quiet waters of a Potomac creek

with the bold and skillful mariners who breast the angry waves of the Atlantic[,] *** such

and so far-reaching are the principles which underlie the jurisdiction of the courts of

admiralty that they adapt themselves to all the new kinds of property and new sets of

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operatives and new conditions which are brought into existence in the progress of the

world.' " Stewart, 543 U.S. at 497, 160 L. Ed. 2d at 948, 125 S. Ct. at 1129 (quoting Saylor

v. Taylor, 77 F. 476, 479 (4th Cir. 1896)). Stewart is broad and holds that if a ship meets the

requirements of jurisdiction, it is a "vessel in navigation" for purposes of the Jones Act.

Relying on Stewart, the Eighth Circuit recently determined that a cleaning barge

which was originally built for navigation but was later moored to the bed of the Missouri

River by spud poles, which are long steel or wood posts placed vertically through the hull of

a vessel and embedded into the bed of a waterway to anchor the vessel, was a "vessel" within

the meaning of the Jones Act. Bunch v. Canton Marine Towing Co., 419 F.3d 868 (8th Cir.

2005). The Bunch court reasoned that "[a]lthough the cleaning barge was secured in

position, strong currents would shift the barge, belying the permanency of its mooring," and

that the evidence failed to establish that "the barge had been taken out of service or rendered

practically incapable of maritime transportation." Bunch, 419 F.3d at 873.

We are aware that the Stewart Court cited with approval Pavone v. Mississippi

Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995) (Stewart, 543 U.S. at 494, 160 L.

Ed. 2d at 945-46, 125 S. Ct. at 1127), which held that a floating casino was not a vessel

within the meaning of the Jones Act because it was moored to the shore in a semipermanent

or indefinite manner. The casino in Pavone, however, is in no way similar to the casino in

the instant case. In Pavone, the floating casino, the Biloxi Belle, was never used as a

seagoing vessel to transport passengers, cargo, or equipment. It lacked a motor and had to be

towed to its mooring position, where it was originally used as a restaurant and bar until its

conversion to a casino. It was not a vessel because it had "no engine, no captain, no

navigational aids, no crewquarters[,] and no lifesaving equipment." Pavone, 52 F.3d at 564.

Here, the Alton Belle's ability to cruise is more than a theoretical possibility. It

remains a practical possibility, and the Alton Belle actually navigates the river. First, the

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Alton Belle is required to comply with all Coast Guard regulations pertaining to a passenger

vessel and is inspected every 90 days to ensure compliance. Second, the Alton Belle

maintains a full maritime crew and is equipped with a motor, fuel, and everything necessary

to navigate the Mississippi River on which it is moored. Third, it can be disconnected from

its mooring cables within 7 to 15 minutes, depending upon whether there is an urgent need to

free the Alton Belle from its mooring. Dennis Crank testified that defendant maintains the

quick-disconnect policy in order to be able to get out of harm's way in case of an emergency.

Finally, the Alton Belle actually navigates the Mississippi River approximately five times

per year when it is released from its mooring and spun around to remove accumulated drift

materials.

According to Stewart, the term "vessel" refers to "any watercraft practically capable of

maritime transportation, regardless of its primary purpose or state of transit at a particular

moment." Stewart, 543 U.S. at 497, 160 L. Ed. 2d at 947, 125 S. Ct. at 1129. Under the

Supreme Court's analysis set forth in Stewart, we fail to see how reasonable minds could

disagree on whether the Alton Belle is a vessel in navigation for purposes of the Jones Act.

The record before us shows that the Alton Belle remains fully capable of maritime

transportation. The fact that Dennis Crank testified that the Alton Belle stopped cruising on

June 26, 1999, the day after the law changed to allow gambling to occur on either

permanently moored barges or self-propelled excursion boats, and has no plans to resume

cruising does not alter our finding.

The Alton Belle is clearly capable of maritime transportation as evidenced by its

dedrifting expeditions and Dennis Crank's testimony that the Alton Belle can be ready to

cruise in approximately five to seven minutes if an emergency situation should arise.

Relying on Stewart, we find that the Alton Belle is a "vessel in navigation" for purposes of

the Jones Act, thereby making plaintiffs seamen. Accordingly, the trial court erred in ruling

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as a matter of law that the Alton Belle was not a vessel in navigation and in entering

summary judgments in favor of defendant.

CONCLUSION

For the foregoing reasons, the judgments of the circuit court of Madison County are

hereby reversed, and the causes are remanded for further proceedings consistent with this

opinion.

Reversed; causes remanded.

SPOMER, P.J., and CHAPMAN, J., concur.

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NO. 5-04-0423

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

ANGELA L. BOOTEN and CRAIG L. ) Appeal from the

WILLEFORD, ) Circuit Court of

) Madison County.

Plaintiffs-Appellants, )

)

v. ) Nos. 02-L-677 & 03-L-689

)

ARGOSY GAMING COMPANY, d/b/a )

ALTON BELLE CASINO, ) Honorable

) Phillip J. Kardis,

Defendant-Appellee. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: April 18, 2006

___________________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.,

Honorable Stephen L. Spomer, P.J., and

Honorable Melissa A. Chapman, J.,

Concur

___________________________________________________________________________________

Attorneys Gail G. Renshaw, Craig J. Jensen, Roy C. Dripps, The Lakin Law Firm, P.C.,

for 300 Evans Avenue, P. O. Box 229, Wood River, IL 62905

Appellants

___________________________________________________________________________________

Attorneys Gordon R. Broom, Gregg A. Kinney, Jarrod P. Beasley, Burroughs, Hepler, Broom,

for MacDonald, Hebrank & True, LLP, 103 West Vandalia Street, Suite 300, P.O. Box

Appellee 510, Edwardsville, IL 62025

___________________________________________________________________________________