John Papai, Joanna Papai v. Harbor Tug and Barge Company

POOLE, Circuit Judge,

dissenting:

Because I cannot agree with my colleagues’ construction of Chandris, Inc. v. Latsis, — U.S. -, 115 S.Ct. 2172 , 132 L.Ed.2d 314 (1995), as it applies to this case, I respectfully dissent.

This case hinges on the construction of the “connection to a vessel” requirement for defining seamen under the Jones Act. We are blessed to have as an aid a recent Delphic pronouncement, the Supreme Court’s decision in Chandris. As the majority reads Chandris, “[t]he proper inquiry is whether plaintiffs relationship with a vessel (or group of vessels) was substantial in terms of duration and nature, which requires consideration of the total circumstances of his employment.” See supra at 206. So far, so good. We agree over what relationship a seaman must have — a relationship substantial in both duration and nature.

But with what must a seaman have that relationship? It is here I believe my colleagues have sailed off course. Relying on Chandris, the majority concludes that “it may be necessary to examine the work performed by the employee while employed by different employers during the relevant time period.” See supra at 206. In one stroke, perhaps without even fully realizing it, the majority vitiates the “connection to a vessel” requirement.

I

The line between LHWCA coverage and Jones Act coverage recognizes “the fundamental distinction between land-based and sea-based maritime employees.” Chandris, — U.S. at -, 115 S.Ct. at 2185 . “The latter, who owe their allegiance to a vessel and not solely to a land-based employer, are seamen.” McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347 , 111 S.Ct. 807, 813 , 112 L.Ed.2d 866 (1991). While all those who do the ship’s work are eligible for seaman’s status, the vessel connection requirement serves the critical function of “separat[ing] 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, and therefore whose employment does not regularly expose them to the perils of the *209 — U.S. at -, 115 S.Ct. sea.” Chandris, at 2190.

It is not necessary that a seaman have allegiance only to a single vessel. Thirty-five years ago, the Fifth Circuit, the leading circuit on admiralty law, recognized that the Jones Act could still apply to a maritime worker who was “ ‘assigned permanently to’ several specific vessels ‘or perform(s) a substantial part of his work on the’ several specified “vessel(s).’” Braniff v. Jackson Ave-Gretna Ferry, Inc., 280 F.2d 523, 528 (5th Cir.1960) (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959)). “Under the fleet doctrine, one can acquire ‘seaman’ status through permanent assignment to a group of vessels under common ownership or control.” Gizoni v. Southwest Marine, Inc., 56 F.3d 1138, 1141 (9th Cir.1995). The Fifth Circuit’s “fleet doctrine” is now the law of this circuit; we recently expressly adopted it in Gizoni. Id.

In my view, Chandris approves of and adopts the fleet doctrine as well. After canvassing the circuit courts’ law and discussing the fleet doctrine with approval, — U.S. at -, 115 S.Ct. at 2189 , Chandris requires that “a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) ...” — U.S. -, 115 S.Ct. at 2190 (emphasis added). This is exactly how the Fifth Circuit has phrased the doctrine: “The key is that there must be a relationship between the claimant and a specific vessel or identifiable group of vessels.” Guidry v. Continental Oil Co., 640 F.2d 523, 529 (5th Cir.1981). Thus, according to the Supreme Court, a seaman need not owe allegiance to a single vessel; it is enough that he is substantially connected to “an identifiable group.” Although Gizoni did not use the precise “identifiable group” language in adopting the Fifth Circuit’s fleet doctrine, it presumably incorporated the same concepts. See Gizoni 56 F.3d at 1141 (interpreting fleet doctrine as requiring permanent assignment to a group of vessels under common ownership or control, and citing several Fifth Circuit cases with approval).

In the majority’s view, however, that group may be identified simply as those vessels on which a sailor sails, not just those of a particular employer or controlling entity. See supra at 206 (“[A]ll the circumstances surrounding the work performed by plaintiff for defendant ... as well as work performed for other employers during the relevant time should be considered in making the [seaman] determination.”). This renders the “identifiable group” or “fleet” requirement a nullity. The majority’s position has been expressly rejected by each of the other circuits which have adopted the fleet doctrine:

By fleet- we mean an identifiable group of vessels acting together or under one control. We reject the notion that fleet of vessels in this context means any group of vessels an employee happens to work aboard. Unless fleet is given its ordinary meaning, the fundamental distinction between members of a crew and transitory maritime workers such as longshoremen is totally obliterated.

Barrett v. Chevron, U.S.A, Inc., 781 F.2d 1067 (5th Cir.1986) (en banc) (footnote omitted); accord Bach v. Trident Steamship Co., 920 F.2d 322, 324 (5th Cir.), vacated and remanded, 500 U.S. 949 , 111 S.Ct. 2253 , 114 L.Ed.2d 706 reaff'd on remand, 947 F.2d 1290 (5th Cir.1991).

The key to the Fleet Seaman Doctrine is that the seaman maintain the employment relationship with the same employer. The term ‘fleet’ refers to the fleet of vessels owned by the employer, not the fleet of vessels on which the employee has worked.

Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247, 1256 (3d Cir.1994). 1

What inspires this departure? The following language from Chandris, which elsewhere clearly endorses the fleet doctrine: “On the other hand, we see no reason to limit the seaman status inquiry, as petitioners eon- *210 tend, exclusively to an examination of the overall course of a worker’s service with a particular employer.” — U.S. at -, 115 S.Ct. at 2191 . But as that opinion’s subsequent discussion makes clear, the emphasis in this statement is on the words “overall course,” not “particular employer.” Chan-iris goes on to discuss the fact that it may sometimes be necessary to judge connection based not on the overall course of an employee’s work with an. employer, but based only on her latest or current assignment with that employer. Id. at - - -, 115 S.Ct. at 2191-92 .

In short, nothing in Chandris’ language permits us to abandon the requirement that a Jones Act seaman be substantially connected to, at the least, “an identifiable group” of vessels. Id. at -, 115 S.Ct. at 2190 . By so doing, we “totally obliterate[ ]” “the fundamental distinction between members of a crew and transitory maritime workers.” Barrett, 781 F.2d at 1074 .

II

Applying the proper fleet requirement, I cannot agree that the district court erred in granting summary judgment on Papai’s Jones Act claim. The district court did not explain its reasoning, but in my view, the ALJ who decided Papai’s LHWCA claim had it right:

Although some of the work performed by the claimant is the type of work that might be performed by a member of a ship’s crew, the evidence also clearly indicates that at the time of the claimant’s injury he was a “land-based” worker and therefore is entitled to seek a remedy for his injury under the Longshore Act [and prohibited from seeking a remedy under the Jones Act]. For example, the claimant’s testimony indicates that all of his jobs were obtained by going to a union hiring hall on a daily basis and waiting to be assigned work according to seniority. Tr. at 33. The claimant’s testimony also indicates that none of his jobs lasted more than two or three days at a time, and that, as a result, he had a variety of different employers and worked on a variety of different ships. Tr. at 32, 33 and CX 16-18. Since the claimant was not assigned to work on any particular ship, he lived on the shore, not on a ship. Tr. at 33. Although the claimant had worked aboard the P.T. Barrow before the date on which he was injured, the job the claimant was performing at the time of his injury was of only one day’s duration. Tr. at 31, 66. It is obvious from these facts that the claimant’s assignment to any particular vessel or fleet of vessels was random, sporadic and transitory. Given this lack of any permanent connection to any vessel or fleet of vessels, it necessarily follows that the claimant cannot be considered as a member of the crew of any ship or fleet of ships [and thus, not a seaman].

ALJ 8/27/92 Order at 5. Seaman’s status is a mixed question of law and fact, but “summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion.” Wilander, 498 U.S. at 356 , 111 S.Ct. at 818 . This is such a ease. Because Papai’s contact with any vessel or vessels could only be described as “transitory or sporadic,” Chandris, — U.S. at -, 115 S.Ct. at 2190 , the district court correctly determined that Papai was not a seaman as a matter of law.

As the Supreme Court has explained, “Traditional seaman’s remedies ... have been ‘universally recognized as ... growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to the sea in ships are subjected.’_ It is this distinction that Congress recognized in the LHWCA and the Jones Act.” Wilander, 498 U.S. at 354 , 111 S.Ct. at 817 (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 , 66 S.Ct. 872, 882 , 90 L.Ed. 1099 (1946) (Stone, C.J., dissenting)). John Papai, who woke up in his own bed, arrived at the hiring hall to learn he was to paint the Point Barrow for a day, and was back in his own bed by night, cannot seriously be described as having that “peculiar relationship” with the Point Barrow or Harbor Tug’s fleet so as to be entitled to Jones Act protection. Because the majori *211 ty believes that peculiar relationship to be no longer required, I respectfully dissent.

. Moreover, our recent decision in Gizoni cites with approval the Fifth Circuit's description of its fleet doctrine in Campo v. Electro-Coal Transfer Corp., 970 F.2d 51, 52 (5th Cir.1992). Gizoni, 56 F.3d at 1141 . In explaining the fleet doctrine, Campo expressly rejects the approach the majority takes today. Campo, 970 F.2d at 52 (" ‘We reject the notion that [a] fleet of vessels in this context means any group of vessels an employee happens to work aboard.' ” (quoting Barrett, 781 F.2d at 1074 )).