The opinion
GOODWIN, Circuit Judge,
dissenting:
I dissent because I do not believe Congress intended by the Jones Act to create access to insurance for catastrophic injuries suffered by hobby sailors who, from time to time, venture onto navigable waters without pay, for their own benefit, or, for the benefit of others they choose as objects of their bounty and good will.
The statute provides that “[a]ny seaman who shall suffer personal injury in the course *1050 of his employment may ... maintain an action for damages at law ...” 46 U.S.C.App. § 688. The injured party must prove three facts: 1) personal injury; 2) seaman status; and 3) that the injury arose in the course of employment.
The majority discusses two discrete status requirements together: course of employment, and the occupational category of seaman, as if there were a single inquiry the jury could answer with a single yes or no. The experienced district judge looked at the statute, the more or less undisputed facts of the case, and the few appellate decisions available on the definition of “seaman” and granted summary judgment, thereby keeping the policy question in this case from going to the jury at all.
A jury is too blunt an instrument to answer a complex question of legal policy (mixed law and fact) with a simple yes or no, although it has become more or less traditional to allow jurors to do so in worker compensation and product liability cases. In such cases, appellate review tends to be reduced to an audit of the judge’s instructions, and if they pass muster, almost any award the jury sees fit to make will stand immune from further review. U.S. Const, amend. VII, and cases too numerous to rehearse in a dissent. But the aura that surrounds jury verdicts which make public policy in personal injury cases is a good reason for the careful and sensitive use of summary judgment where there are no real facts for a jury to decide. This case is a perfect example, because of the horrifying injury suffered by the plaintiff, of the adage that if the case goes to the jury, the only question it will actually decide will be the number of digits to place after the dollar sign.
I do not believe that a reasonable jury can make Graham a seaman, by saying in a verdict that he was one. Nor do I believe a jury can, by saying he was working as an employee of the ship when he was injured, make him an employee. He took instructions from the master of the vessel, just as amateur team athletes take orders from a coach. These relationships are not called employment relationships, they are called sports, or hobbies, or recreation.
The term “seaman” is a term of art and is not defined by the Jones Act. The Supreme Court has said that “a seaman is a mariner of any'degree, one who lives his life upon the sea.” Warner v. Goltra, 293 U.S. 155, 157 , 55 S.Ct. 46, 47 , 79 L.Ed. 254 (1934). The Supreme Court has also held that Congress intended its language to mean what it meant at the time the Jones Act was passed in 1920. McDermott International, Inc. v. Wilander, 498 U.S. 337, 342 , 111 S.Ct. 807, 810-11 , 112 L.Ed.2d 866 (1991) quoting Morissette v. U.S., 342 U.S. 246, 263 , 72 S.Ct. 240, 249-50 , 96 L.Ed. 288 (1952).
Seaman status is a mixed question of law and fact and may be determined by summary judgment in appropriate circumstances. McDermott International, Inc. v. Wilander, 498 U.S. 337, 356 , 111 S.Ct. 807, 818 , 112 L.Ed.2d 866 (1991); Papai v. Harbor Tug and Barge Co., 67 F.3d 203, 205 (9th Cir.1995). Judges prefer to send this land of question to the jury when they can, because they are difficult questions, and appellate courts have encouraged them to be sent to juries. But lines do have to be drawn, or all serious injury cases would go to juries, and that is not the law.
The test for seaman status was recently reformulated by the Supreme Court and is correctly cited by the majority opinion. Chandris, Inc. v. Latsis, — U.S.-, 115 S.Ct. 2172 , 132 L.Ed.2d 314 (1995). The first part of the test, that to be a seaman, an employee must contribute to the function of the vessel or to the accomplishment of its mission, is not a material question in this case. The plaintiff clearly contributed to the function of the vessel.
The second part of the test requires that a seaman have a “connection to a vessel in navigation ... that is substantial in terms of both its duration and nature.” Id. at -, 115 S.Ct. at 2190 . The purpose of this part of the test is to separate sea-based maritime employees from “workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.” Id.
*1051 We have interpreted the Chandris test to require a fact-specific examination encompassing the totality of the injured person’s employment circumstances. Papai v. Harbor Tug and Barge Company, 67 F.3d 203, 206 (9th Cir.1995). Papai is not particularly helpful in today’s case because Papai does not involve a recreational-volunteer fact pattern, but rather seeks to explain how to apply Chandris to union workers, like welders and machinists who may come aboard and work for vailing amounts of time on different vessels, whether they are at anchor, dockside, or under way.
Here, Graham had only a temporary, sporadic connection to The Ambrose. Without even addressing whether Graham was an employee within the meaning of the phrase “employment related connection to a vessel in navigation” under the statute, he does not appear to meet the “duration and nature” part of the seaman test. No part of his livelihood was earned at sea, although there are a few cases holding that fact not controlling.
Nothing in Wilander or Chandris or the 9th Circuit case law promotes extending to jurors the power to define recreational boaters as seaman. The earning of wages is not always necessary to be a seaman, but there is a difference between a workaway (one who works for passage), or a “shares” fisherman (who labors for a percentage of the catch), and a volunteer recreational boater. If vocational status is the key, and if the definition of seamen is further limited by the duration of one’s connection to the vessel, it is unclear how the benediction of a jury can qualify this unfortunate accident victim as a seaman.
Chandris cites with approval the 5th Circuit rule that approximately 30% of the worker’s time should be spent in connection with the vessel to trigger the protection of seaman status. Chandris, — U.S. at -, 115 S.Ct. at 2191 . This figure is to serve as no more than a “guideline” Id, but guidelines should guide somewhere. The plaintiffs waterborne activities were more like those of a weekend yachtsman than those of a mariner earning his bread, maintenance and cure, and health insurance by his toil aboard ship.
One reported district court case that has come down since Chandris declined to extend seaman status to recreational boaters. Hardesty v. Rossi, 1995 WL 688416 (D.Md.). Plaintiff, aboard her friend’s boat for a weekend sailing trip, failed both prongs of the Chandris test, having neither the employment-related connection to the vessel, nor the durational requirement. The court specifically found that she was a full-time employee of a land-based clinic, and her expected stay aboard the vessel was less than two days.
Another post-Chandris district court case failed to extend seaman status to a worker who did not spend 30% of his time aboard the vessel. Nix v. Sub Sea International, Inc., 1995 WL 569245 (E.D.La.) (crane operator injured when walking between a lift barge and a drilling platform did not spend 30 percent of his time aboard a vessel and was not a seaman); See also Dietrich v. U.S., 1995 WL 617577 (E.D.La.) (electrician’s helper, aboard for a temporary, ten-day assignment did not have the necessary duration or type of activity required to be a seaman).
One of the few cases that has extended seaman status to recreational boaters, and relied on by the majority, is Petition of Read, 224 F.Supp. 241 (S.D.Fla.1963). The district court in this case distinguished Read by noting that the plaintiff in Read was found to have been a full crew member and subject to the control of the defendant ship owners. In re Boy Scouts of America, 875 F.Supp. 1391 , 1396 citing Heath v. American Sail Training Ass’n, 644 F.Supp. 1459 (D.R.I.1986). However, both trial judges ruled in Read and in today’s case without the benefit of the language of Chandris. Read is inconsistent with Chandris. “Lack of long continued attachment to the vessel does not serve to deny [Read] the status of a seaman when he is injured while assigned to and performing normal crew service.” Read, 224 F.Supp. at 246 .
While Chandris does not require “continued attachment” to a vessel it does require an attachment that is substantial both in its duration and nature. Read simply does not provide support for the conclusion that Graham’s seaman status is a jury question. Furthermore, the district court relied on the language of Heath to distinguish Read. However, in Heath , the court presumed seaman status of the volunteer sailors and was *1052 analyzing only the “in the course of employment” requirement of the Jones Act. Heath, 644 F.Supp. at 1468 .
The history of maintenance and cure, afforded by Admiralty law long before Congress enacted the Jones Act incorporating it, is inconsistent with the extension of Jones Act benefits to essentially recreational boaters. The obligation of maintenance and cure has its source in the employment relationship and the wardship of Admiralty. Cortes v. Baltimore Insular Line, 287 U.S. 367, 371 , 53 S.Ct. 173, 174 , 77 L.Ed. 368 (1932); Gardiner v. Sear-Land Service, Inc., 786 F.2d 943 (9th Cir.1986), cert. denied 479 U.S. 924 , 107 S.Ct. 331 , 93 L.Ed.2d 303 (1986). Traditionally, maintenance and cure served three purposes: (1) to protect the poor and improvident seaman while ill in foreign ports, (2) to encourage ship owners to protect the seaman’s safety and health while in service, and (3) to induce employment in the merchant marine. Gardiner, 786 F.2d at 946 paraphrasing Vella Ford Motor Co., 421 U.S. 1, 3-4 , 95 S.Ct. 1381, 1382-83 , 43 L.Ed.2d 682 (1975). For all of the above reasons, I believe the district court correctly held that Graham was not a seaman, and was not injured in the course of employment, two critical qualifications for Jones Act coverage. I would affirm.