Petition for Writ of Certiorari — Wayne Volk, et ux., Petitioners v. A. P. Franz, Jr., et al.

Supreme Court briefJan 23, 2018

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No. ______

In the Supreme Court of the United States

WAYNE VOLK AND KAREN VOLK,

Petitioners

VERSUS

A.J. FRANZ, JR., Trustee, as Owner and

BUCHANAN MARINE, L.P., as Bareboat Charterer

of the Barge B-252,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Steven M. Melley

Richard Nardone

STEVEN M. MELLEY,

P.L.L.C.

24 Closs Drive

Rhinebeck, New York

12572

Louis R. Koerner, Jr.

KOERNER LAW FIRM

1204 Jackson Avenue

New Orleans,

Louisiana 70130

Counsel for Petitioners, Wayne Volk and Karen Volk

QUESTIONS PRESENTED

This case poses important questions regarding

“seaman” status under the Jones Act as applied to a

vessel repair employee working exclusively on a fleet of

vessels, while afloat, under the ownership and control

of his employer.

Question I. Whether a long-term employee

engaged exclusively in maintenance and repair work on

a fleet of 150-200 deck barges afloat in the Hudson

River is a “seaman” under the Jones Act (46 U.S.C.

§30104)

when

the

barges

are

under

common

ownership/operation of his employer, and he is injured

while working on one of the vessels.

Question II: Whether the Second Circuit Court

of Appeals misapplied the “Chandris test”1 and other

authority from the Court by holding, as a matter of law,

1 Chandris v Latsis, 515 U.S. 347 (1995)

that Petitioner, Wayne Volk, was not a “seaman” under

the Jones Act, 46 U.S.C. § 30104, thereby creating a

conflict among the circuits.2

A United States court of appeals has entered a

decision in conflict with the decision of another United

States court of appeals on the same important matter;

has decided an important federal question in a way

that conflicts with a decision by a state court of last

resort; or has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned such

a departure by a lower court, as to call for an exercise of

this Court's supervisory power.

iii

RULE 14.1 STATEMENT - LIST OF PARTIES

Petitioners

(claimants-appellants

below)

are

Wayne Volk and Karen Volk.

Respondents

(petitioners-counter-defendants-

appellees below) are A.J. Franz, Jr., Trustee, as owner

and Buchanan Marine, L.P., as Bareboat Charterer of

the Barge B-252.

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................i

RULE 14.1 STATEMENT - LIST OF PARTIES ..... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 2

STATUTE INVOLVED .............................................. 2

STATEMENT OF THE CASE ................................... 3

THE FACTS AS STATED BY THE COURT OF

APPEAL ................................................................ 4

THE APPLICATION OF THE JONES ACT BY THE

COURT OF APPEALS .......................................... 7

THE CIRCUIT CONFLICTS ................................... 12

THE CONFLICT WITH THIS COURT’S

PRECEDENT ...................................................... 14

PROCEEDINGS BELOW ........................................ 15

REASONS FOR GRANTING THE PETITION ...... 19

I. THE LONG-CONFLICTED HISTORY OF THE

“SEAMAN” DEFINITION .................................. 21

II. TEST FOR SEAMAN STATUS UNDER THE

JONES ACT ........................................................ 21

III. THE CONFLICTING CIRCUIT DECISIONS .. 23

IV. THE SECOND CIRCUIT’S OPINION IS

INCONSISTENT WITH RULINGS OF THIS

COURT ................................................................ 39

V. THE MOST AUTHORITATIVE

COMMENTATORS HAVE EITHER REJECTED

“PERILS OF THE SEA” AS A DEFINING

CATEGORY OR HAVE URGED THIS COURT TO

PROVIDE CLARITY TO THIS TROUBLED AND

UNCERTAIN AREA OF MARITIME LAW ....... 45

CONCLUSION ......................................................... 46

APPENDIX A – OPINION OF THE UNITED

STATES COURT OF APPEAL FOR THE

SECOND CIRCUIT DATED OCTOBER 27, 20171

APPENDIX B – OPINION OF THE DISTRICT

COURT DATED MARCH 10, 2016 .................... 40

APPENDIX C ........................................................... 86

A CAREFUL RECITATION OF THE FACTS TAKEN

FROM THE RECORD ON APPEAL .................. 86

A. Introduction .................................................... 86

B. Job Title: Barge Maintainer........................... 86

C. Daily Duties .................................................... 88

D. Aboard Vessels on Open Water ..................... 90

E. Perils of the Hudson River ............................. 95

F. Barge Repair and Pumping ............................ 97

G. More Navigation Duties ............................... 100

H. Dangerous Conditions.................................. 100

I. Final Barge Inspection Procedure ................ 102

J. The Accident .................................................. 106

APPENDIX D – CAPSIZED BARGES .................. 111

APPENDIX E – CAPSIZED BARGES .................. 112

TABLE OF AUTHORITIES

CASES

PAGE

Braniff v. Jackson Ave.-Gretna Ferry, Inc., 280

F.2d 523 (5th Cir. 1960)

18, 33

Bunch v. Canton Marine Towing Co., 419 F.3d

868 (8th Cir. 2005)

13, 35,

Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)

passim

Delange v. Dutra Const. Co., 183 F.3d 916 (9th

Cir. 1999)

13, 37

Denson v. Ingram Barge Co., 2009 WL 1033817

(W.D. Ky. 4/16/2009)

Duet v. Am. Commercial Lines LLC, No. CIV.A.

12-3025, 2013 WL 1682988 (E.D. La. Apr. 17,

2013), reversed sua sponte, in the unreported

remand to state court, Doc. 58, filed 04/02/14

Frederick v. Harvey's Iowa Mgmt. Co., 177 F.

Supp.2d 933 (S.D. Iowa 2001).

Grab v. Boh Bros. Const. Co., 506 F. App'x 271, passim

276 (5th Cir. 2013).

Gulasky v. Ingram Barge Co., 2006 WL 119381

(W.D. Ky. 1/10/2006)

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

(1997)

In re Endeavor Marine Inc., 234 F.3d 287 (5th Cir. passim

2000)

Lara v. Harveys Iowa Mgmt. Co., 109 F. Supp.2d

vii

1031 (S.D. Iowa 2000)

Luckett v. Cont'l Eng'g Co., 649 F.2d 441 (6th Cir.

1981)

Matter of Buchanan Marine, L.P., 874 F.3d 356 passim

(2d Cir. 2017)

Matter of Franz, 2016 WL 922793 (N.D.N.Y.

3/10/16)

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337

(1991)

14, 39

Naquin v. Elevating Boats, LLC, 744 F.3d 927 passim

(5th Cir. 2014), cert. denied ––– U.S. ––––, 135

S.Ct. 1397, 191 L.Ed.2d 359 (2015)

Northeast Marine Terminal Co. v. Caputo, 432

U.S. 249 (1977).

Scheuring v. Traylor Bros., 476 F.3d 781 (9th Cir.

2007)

13, 37

Slatton v. Martin K. Eby Const. Co., 506 F.2d 505

(8th Cir. 1974)

13, 35

Stewart v. Dutra Construction Co., 543 U.S. 481

(2005)

4, 36,

Sw. Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)

14, 42,

STATUTES

28 U.S.C. § 1254(1)

46 U.S.C. § 30104

i, ii, 2,

viii

OTHER AUTHORITY

Coley, The "Perils of the Sea" -Man Status

Question: The Fifth Circuit Falls Behind FELA's

Advancements in Remedies in Favor of the

Continued Confusion Surrounding the Seaman

Definition, 39 Tul. Mar. L.J. 371, 372–81 (2014)

Force and Norris, The Law of Seamen § 2:8 (5th

ed.), Jones Act seaman—Seamen—Perils of the

sea

Force and Norris, The Law of Maritime Personal

Injuries § 4:10, “Members of a crew” distinguished

from longshoremen, harborworkers—Seamen:

Perils of the sea

Gennaro, Jones Act Status: How the Naquin and

Dize Decisions Perpetuate Status Confusion and

Prove Need for Clarification, 15 Loy. Mar. L.J.

345, 346–74 (2016)

Hayes, Naquin on the Door of a Circuit Split?

Second Circuit Suggests Emerging Split from the

Fifth Circuit Regarding Jones Act Seaman Status

for Essentially Land-Based Employees, Retrieved

from

https://www.stridingthequarterdeck.com/naquindoor-circuit-split-second-circuit-suggestsemerging-split-fifth-circuit-regarding-jones-actseaman-status-essentially-land-basedemployees/#more-305

McCormack, How Congress & Scotus Have Failed

the American Seaman: A Modern Analysis of

Obtaining "Seaman" Status Under the Jones Act

& the United States Supreme Court's 2014 Denial

of William S. Dize, 29 U.S.F. Mar. L.J. 1, 2–27

45(2017)

Schoenbaum, 1 Admiralty & Mar. Law § 6-9 (5th

ed.), § 6-9. Seaman status

PETITION FOR A WRIT OF CERTIORARI

Petitioners Wayne Volk and Karen Volk

respectfully petition for a writ of certiorari to review

the judgment of the Second Circuit in Matter of

Buchanan Marine, L.P., 874 F.3d 356 (2d Cir. 2017)

[App. A].

OPINIONS BELOW

The opinion of the court of appeals was

rendered on October 27, 2017, Matter of Buchanan

Marine, L.P., Docket No. 16-1092-cv, 874 F.3d 356

(2d Cir. 2017) [App. A].

The opinion of the district court granting the

summary dismissal of Volk’s seaman claims was

rendered on March 10, 2016, Matter of Franz, 2016

WL 922793 (N.D.N.Y. 3/10/16) [App. B].

JURISDICTION

The judgment of the court of appeal was

entered on October 27, 2017. There was no

application for rehearing. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

46 U.S.C. § 30104 reads as follows:

Personal injury to or death of seamen

A seaman injured in the course of

employment or, if the seaman dies from

the injury, the personal representative

of the seaman may elect to bring a civil

action at law, with the right of trial by

jury, against the employer. Laws of the

United States regulating recovery for

personal injury to, or death of, a railway

employee apply to an action under this

section.

STATEMENT OF THE CASE

This case raises important issues of federal

law:

Question

Was

long-term

employee

engaged exclusively in maintenance and repair work

on a fleet of 150-200 deck barges afloat in the

Hudson River a “seaman” under the Jones Act (46

U.S.C. §30104) when the barges were under common

ownership/operation of his employer and he was

injured while working on a vessel in this fleet?

Question II. Did the Second Circuit Court of

Appeals misapply the “Chandris test”3 and other

authority from the Court by holding, as a matter of

law, that Petitioner, Wayne Volk, was not a

“seaman” under the Jones Act, 46 U.S.C. § 30104,

and thereby create a conflict among the circuits?

3 Chandris, 515 U.S. 347.

THE FACTS AS STATED BY

THE COURT OF APPEAL

According to the Second Circuit:4

The facts are largely undisputed

and are summarized in the light most

favorable to Volk, against whom

summary judgment was granted.

Volk worked for petitionercounter-defendant-appellee Buchanan

Marine, L.P. (“Buchanan”) at the

Clinton Point quarried rock processing

facility on the Hudson River, in

Dutchess County, New York, as a

“barge maintainer” from 1999 until his

accident on May 19, 2011.1 At the

Clinton Point facility, claimant-counterclaimant-appellee Tilcon New York, Inc.

4 Matter of Buchanan Marine, 874 F.3d 356, 361 (2d

Cir. 2017), App. A, A-3-7. Although, as detailed in

Appendix C, this factual statement is incomplete in

important respects and sometimes misleading, it

forms a sufficient basis upon which to make the legal

determination that Mr. Volk was a seaman as a

matter of law and to defeat summary judgment.

(“Tilcon”) processes quarried rock for

use in, e.g., construction work, and

loads the rock onto barges supplied by

Buchanan. Buchanan then transports

the loaded barges, using its tugboats,

down the Hudson River to Tilcon's

customers.2

The court of appeals explained the three-step

loading process:

The loading process has three

steps. First, before an empty barge is

loaded, and while it is tied to the dock,

it is inspected by a Buchanan barge

maintainer. The barge maintainer

checks the barge for damage and excess

water and repairs any damage so that

the barge is in acceptable condition for

loading. Second, the barge is moved to

the loading facility by Tilcon, where it is

loaded with quarried rock. Third, after

the barge is loaded, it is moved back to

the dock by Tilcon, where a Buchanan

barge maintainer conducts a final

inspection. During the first and third

steps of the loading process, the barge is

in the water and secured to the dock,

either tied directly to the dock or to

barges already tied to the dock. Moored

barges may be three or four barges

deep, with the closest barge tied to the

dock and the outward barges tied to one

another. When a barge was tied to other

barges—rather than tied directly to the

dock—barge maintainers would climb

over the barges to get to the one they

needed to inspect.

The court of appeals continued:

When Volk was inspecting a

barge, he would walk along the

perimeter of the barge on the “margin

decks,” which ran the length of the

barge. App'x at 185. The margin decks

were “so narrow [that] they were

difficult to walk on or stand on,” id.,

lacked guard or hand rails, and were

often wet and soiled with excess gravel

that spilt over from the loading process.

When a barge required repairs, Volk

would sometimes stand on a pontoon

work boat—a flat floatable device

water side to do the work.

Volk was not assigned to any

specific barge; rather, he worked on all

Buchanan barges that arrived for

loading at the Tilcon facility. Volk was

not a crewmember of any of Buchanan's

tugboats that transported the barges

down the Hudson River. He worked an

hourly shift, went home at the end of

each work day, and did not take meals

or sleep on any barge. He was a member

of the International Union of Operating

Engineers, which represents equipment

operators. He did not belong to a

maritime union or hold a maritime

license.

On May 19, 2011, Volk was

walking along the margin decks of

Barge B-252 (the “Barge”), which had

been loaded with stone, when he slipped

on excess wet stone and injured his

right arm and shoulder on the side of

the Barge.

THE APPLICATION OF THE JONES ACT

BY THE COURT OF APPEALS

The Second Circuit applied the seaman status

test under the Jones Act, as follows: 5

weighing

“the

total

circumstances” of Volk's employment,

we conclude as a matter of law that

Volk does not qualify as a seaman

under the Jones Act. See id. As a

reasonable

factfinder

could

only

conclude, his work on the barges did not

regularly expose him to the special

hazards and disadvantages of the sea.

See id. at 369-70, 115 S.Ct. 2172.

Volk did not “derive[ ] his

livelihood from sea-based activities.”

O'Hara, 294 F.3d at 64 (internal

5 Buchanan., 874 F.3d at 366-368, App. A, A-22-28.

quotation marks omitted). Volk never

operated a barge and only worked

aboard the barges when they were

secured to the dock. See Harbor Tug &

Barge Co., 520 U.S. at 555, 117 S.Ct.

1535 (“For the substantial connection

requirement to serve its purpose, the

inquiry into the nature of the

employee's connection to the vessel

must concentrate on whether the

employee's duties take him to sea.”).

The barges Volk worked on were moved

to the loading dock by Tilcon workboats

and Tilcon employees, and transported

down the Hudson River by Buchanan

tugboats. Volk was not a crew member

of and did not serve on the Buchanan

tugboats.9 Indeed, Volk reported to the

dock foreman, not a ship's officer, and it

was the dock foreman who brought him

to the medical clinic after his accident.

Volk belonged to a union that

represents equipment operators. He did

not belong to a maritime union and did

not hold a maritime license or other

“seaman's papers.” O'Hara, 294 F.3d at

64. Finally, Volk never spent the night

aboard a barge; he worked an hourly

shift and went home every night after

his shift ended. In contrast, a

traditional Jones Act seaman normally

serves for voyages or tours of duty. See,

e.g., Aguilar v. Standard Oil Co., 318

U.S. 724, 731-32, 63 S.Ct. 930, 87 L.Ed.

1107 (1943) (voyages); Sellers v. Dixilyn

Corp., 433 F.2d 446, 447-48 (5th Cir.

1970) (tours of duty).

In O'Hara, we concluded that a

dock worker who was injured while

repairing the Staten Island pier aboard

a barge was not a “seaman” as a matter

of law because he had, at most, “a

transitory or sporadic connection” to the

barges “in their capacity as vessels in

navigation.” 294 F.3d at 64 (emphasis

omitted). Key to our holding was that

the dock worker (1) belonged to a dock

workers union rather than a maritime

union, (2) lacked a maritime license, (3)

never spent the night aboard a barge,

and (4) never operated a barge or

assisted in its navigation and only

worked aboard the barges when they

were fully secured to the pier that the

dock worker was employed to repair. Id.

We emphasized that, although the

worker “spent more than half his

working hours ... aboard the barges, ...

he spent all of that time performing

tasks related to the repair of the Staten

Island pier while the barges were

secured to the pier.” Id. This case is not

substantially different from O'Hara.

Volk seeks to rely on the Fifth

Circuit's decision in Naquin v. Elevating

Boats, LLC, 744 F.3d 927 (5th Cir.

2014), cert. denied ––– U.S. ––––, 135

S.Ct. 1397, 191 L.Ed.2d 359 (2015).

There, a shipyard worker “spent

approximately 70 percent of his total

time working aboard” so-called “liftboats” that “were moored, jacked up or

docked in [the] shipyard canal.” Id. at

930. His duties included “inspecting

[the lift-boats] for repairs, cleaning

them,

painting

them,

replacing

defective or damaged parts, performing

engine repairs, going on test runs,

securing equipment, and operating the

vessels' marine cranes and jack-up

legs.” Id. The worker was occasionally

“dispatched ... to repair a vessel or fill in

as a vessel crane operator while the

vessel was operating in open water.” Id.

at 931. The Fifth Circuit affirmed the

jury verdict in favor of the shipyard

worker awarding Jones Act damages,

finding that the shipyard worker was

exposed to the perils of a maritime work

environment such that he was a

seaman. Id. at 935.

The Fifth Circuit's decision is not

controlling on us, and it is in any event

distinguishable. The shipyard worker

there clearly had a more substantial

connection to seafaring vessels than

Volk does. For example, the shipyard

worker operated “the vessels' marine

cranes and jack-up legs” and worked

aboard the vessels in open water, even

if only “occasionally.” Id. at 930. Volk

did none of these things; Volk worked

on barges that were moored, directly or

indirectly, to the Tilcon dock and did

not operate the Tilcon workboats or

Buchanan tugboats that transported

the barges. See Schultz v. Louisiana

Dock Co., 94 F.Supp.2d 746, 750 (E.D.

La. 2000)6 (“Plaintiff's duties were

limited to inspecting and repairing

barges moored at the facility. He did not

go to sea or face the perils of the sea in

the manner associated with seaman

status. Plaintiff ate meals ashore and

went home every night. He admitted

that with respect to the vessels used to

transport him around the facility he did

not serve as a deckhand.”).

In sum, none of Volk's work was

of a seagoing nature. Volk's duties were

limited to inspecting and repairing

barges that were secured to the dock at

the Clinton Point facility. Volk did not

go to sea and he was not exposed to the

6 This case may not be good law after Naquin. See

Duet v. Am. Commercial Lines LLC, No. CIV.A. 123025, 2013 WL 1682988 (E.D. La. Apr. 17, 2013),

reversed sua sponte in the unreported remand to

state court, Doc. 58, filed 04/02/14.

“perils of the sea” in the manner

associated with seaman status. See

Denson v. Ingram Barge Co., 5:07-cv00084-R, 2009 WL 1033817, at *3 (W.D.

Ky. Apr. 16, 2009) (“The hazards

Denson states he faced do not rise to the

level of the special hazards and

disadvantages faced by seamen; they

are

hazards

that

longshoremen

commonly encounter. Therefore, Denson

was an intended beneficiary of the

LHWCA.”). Accordingly, considering the

total

circumstances

Volk's

employment, we conclude as a matter of

law that Volk does not qualify as a

“seaman” within the meaning of the

Jones Act, and we affirm the dismissal

of his Jones Act claims.

THE CIRCUIT CONFLICTS

The decision of the court below admittedly

conflicts with Naquin, 744 F.3d 927, which, on

substantially the same relevant facts, was decided by

the Fifth Circuit, thereby creating an irreconcilable

conflict on the issue of “seaman” status under the

Jones Act, 46 U.S.C. § 30104 and exposure to “perils

of the sea.” The opinion of the court below represents

a clear, significant and unwarranted departure from

controlling precedent from this Court, including

Chandris, and establishes an irreconcilable conflict

on the test for “seaman” status under the Jones Act,

between the Fifth Circuit and the Second Circuit

courts of appeal.

In addition, the decision below also conflicts

with the following circuit authority: Fifth Circuit:

In re Endeavor Marine Inc., 234 F.3d 287, 291 (5th

Cir. 2000), Grab v. Boh Bros. Const. Co., 506 F. App'x

271 (5th Cir. 2013); Eighth Circuit: Slatton v.

Martin K. Eby Const. Co., 506 F.2d 505 (8th Cir.

1974) Bunch v. Canton Marine Towing Co., 419 F.3d

868 (8th Cir. 2005); Ninth Circuit: Delange v. Dutra

Const. Co., 183 F.3d 916, 920 (9th Cir. 1999)

Scheuring v. Traylor Bros., 476 F.3d 781, 786–87

(9th Cir. 2007).

THE CONFLICT WITH THIS

COURT’S PRECEDENT

The decision of the court below is also

inconsistent with this Court’s precedents. With

respect to the interpretation of “perils of the sea,”

this Court rejected the narrow interpretation of

“perils of the sea” in McDermott Int'l, Inc. v.

Wilander, 498 U.S. 337 (1991). The decision of the

Second Circuit also deviates from this Court’s

decisions in Sw. Marine, Inc. v. Gizoni, 502 U.S. 81

(1991), Stewart v. Dutra Construction Co., 543 U.S.

481 (2005) as quoted by the Fifth Circuit in Naquin,

744 F.3d at 934, infra; and Harbor Tug & Barge Co.

v. Papai, 520 U.S. 548 (1997).

Without an appropriate clarification of the

seaman test, the circuit split may intensify. At least

one interested and knowledgeable practitioner has

written a comprehensive blog post in which the

author suggests that this Court should resolve the

conflict between the opinion of the court below and

the opinion of the Fifth Circuit in, inter alia,

Naquin.7

The Court should resolve these conflicts and

reject the Second Circuit’s interpretation of the

seaman test.

PROCEEDINGS BELOW

The following is taken from the opinion of the

court of appeal:8

On October 16, 2012, Volk and

his wife Karen Volk commenced a

https://www.stridingthequarterdeck.com/naquin-

door-circuit-split-second-circuit-suggests-emergingsplit-fifth-circuit-regarding-jones-act-seaman-statusessentially-land-based-employees/#more-305

8 Matter of Buchanan Marine, 874 F.3d at 362-363,

App. A, A-7-9.

personal

injury

action

against

Buchanan and Tilcon in New York State

Supreme Court, Ulster County. On

April 15, 2013, A.P. Franz, Jr., the

owner of the Barge, and Buchanan, as

bareboat charterer of the Barge,

commenced this action in the district

court pursuant to the Limitation of

Liability Act of 1851, 46 U.S.C. §§

30501-30512, seeking exoneration from

or limitation of liability. In accordance

with Rule F of the Supplemental Rules

for Admiralty or Maritime Claims and

Asset Forfeiture Actions of the Federal

Rules of Civil Procedure, the court

approved a $47,420.77 security bond,

representing Franz and Buchanan’s

interest in the Barge, directed issuance

of notice to all persons asserting claims

affected by the limitation proceeding,

ordered that any claim related to the

incident be filed with the court within a

specified time period, and enjoined the

filing or prosecution of any suits related

to the incident.

Tilcon and the Volks answered

the

complaint

and

asserted

counterclaims. Tilcon asserted claims

against Franz and Buchanan for

indemnification or contribution. The

Volks asserted claims against Franz,

Buchanan, and Tilcon under the Jones

Act, the LHWCA, general maritime law,

and New York state law.

The Volks filed a motion to

dismiss on August 16, 2013. The district

court denied the motion on March 28,

2014. The parties thereafter crossmoved for summary judgment. On

March 10, 2016, the district court

granted

the

motions

Franz,

Buchanan, and Tilcon, denied the Volks’

cross-motion, and granted Franz and

Buchanan’s complaint for exoneration

from liability. The court exonerated

Franz, Buchanan, and Tilcon from

liability for Volk’s injury, except for

Buchanan's

liability

for

workers'

compensation. The court concluded that

Volk's Jones Act claims fail because he

is not a “seaman” under the Jones Act.

The court also concluded that all of

Volks' remaining claims under the

LHWCA, general maritime law, and

state law fail.

The Second Circuit affirmed the district

court’s dismissal of Volk's Jones Act claim but held

that “the district court erred in dismissing certain of

Volk's remaining claims against the owner of the

barge and the operator of the rock processing

facility.”9

Although the facts as recited in the opinion of

the Second Circuit are incomplete, as discussed in

detail at Appendix C and hereinafter, and led to

unsupported, erroneous conclusions,10 Volk, a vessel

repairer working exclusively on one employer’s fleet

of vessels, engaged in traditional seaman’s work on

9 Buchanan, 874 F.3d at 361, App. A, A-3.

10 As stated in Braniff v. Jackson Ave.-Gretna Ferry,

Inc., 280 F.2d 523, 527 (5th Cir. 1960): “Even where

the facts are largely undisputed, the question at

issue is not solely a question of law when, because of

conflicting inferences that may lead to different

conclusions among reasonable men, a trial judge

cannot state an unvarying rule of law that fits the

facts.”

the river, working aboard/from a motor-powered

“little work barge,” was a seaman as a matter of law

at the time that he was injured on the B-252, a

vessel in Buchanan’s fleet. Alternatively, the motion

for summary judgment should have been denied.

REASONS FOR GRANTING THE PETITION

This Court’s review is required to resolve the

question of whether a “lunch box” maritime worker

can qualify as a Jones Act Seaman when that

maritime worker is exclusively employed to maintain

and repair a fleet of employer-owned/operated

unmanned vessels in inland waters and his duties do

not literally take him out to sea but involve other

navigable bodies of water, service on the entire fleet

of vessels, and injury aboard one of those vessels.

The decision of the Second Circuit on this important

federal question establishes a conflict among the

federal circuits courts of appeal with respect to the

legal standard for determining Jones Act seaman

status for land-based maritime workers who perform

all, or almost all, of their work on or over navigable

waters in connection with a fleet of vessels under

common ownership and control. Since Chandris,11

there has been limited predictability as to the

seaman status of such maritime workers. Perversely,

an employer who exposes its employees to significant

“perils of the sea” can escape Jones Act liability

because of the gap in the current Chandris test as

interpreted by the court below. This leaves hardworking men, who face “perils of the sea” daily,

stranded and without the Jones Act protection

intended by Congress.

11 Chandris, supra.

I. THE LONG-CONFLICTED HISTORY

OF THE “SEAMAN” DEFINITION

As stated by this Court in Chandris,12

Congress did not include a definition of the term

“seaman” in the Jones Act, meaning that it intended

to leave this task to the courts. As may be seen from

the volume of Jones Act litigation and varying

results in the courts of appeal and in district courts,

this has produced differing results in cases involving

land-based maritime worker exposed to “perils of the

sea.”

II. TEST FOR SEAMAN STATUS

UNDER THE JONES ACT

This Court established a test to determine if a

maritime worker is a seaman in Chandris:13

First, as we emphasized in

Wilander, “an employee's duties must

12 Chandris, 515 U.S. at 355.

13 Chandris, 515 U.S. at 368.

‘contribut[e] to the function of the vessel

or to the accomplishment of its

mission.’” 498 U.S., at 355, 111 S.Ct., at

817 (quoting Robison, 266 F.2d, at 779).

***

Second, and most important for

our purposes here, 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 its nature.

Explaining the second prong of the test, this

Court held:14

We agree with the Court of

Appeals that seaman status is not

merely a temporal concept, but we also

believe that it necessarily includes a

temporal element. A maritime worker

who spends only a small fraction of his

working time on board a vessel is

fundamentally

land

based

and

therefore, not a member of the vessel's

crew, regardless of what his duties are.

Naturally, substantiality in this context

is determined by reference to the period

covered by the Jones Act plaintiff's

maritime employment, rather than by

14 Chandris, 515 U.S. at 371.

some absolute measure. Generally, the

Fifth Circuit seems to have identified

an appropriate rule of thumb for the

ordinary case: A worker who spends less

than 30 percent of his time in the

service of a vessel in navigation should

not qualify as a seaman under the Jones

Act.

III. THE CONFLICTING CIRCUIT DECISIONS

The Fifth Circuit. In Naquin, 744 F.3d 927,

that court affirmed a jury verdict that Naquin, a

vessel repair supervisor, was a seaman. Naquin’s

responsibilities

were

maintain

and

repair

Elevating Boats, LLC [“EBI’]’s fleet of lift-boat

vessels while he was aboard moored, jacked-up, or

docked lift-boats in EBI’s shipyard canal, and spent

“70 percent of his total time working aboard these

vessels.” Id. at 930. In addition, two to three times a

week, Naquin most often worked on vessels while

they were being moved in a canal. Id. at 930-931.

The Fifth Circuit had no doubt “that Naquin

did the ship's work and contributed to the function of

EBI's vessels,” and held that “an individual can still

qualify for seaman status even if he divides his time

among multiple vessels under common ownership or

control.” Id. at 934.

As opposed to Naquin’s lesser percentage, Volk

spent almost 100 percent of his total working time

aboard Buchanan’s unmanned fleet of barges/scows

and the “little work barge,” trying to keep the

Buchanan barge fleet as seaworthy as possible so

these vessels could be loaded with quarried crushed

stone or gravel and make the trip south from Clinton

Point.15 Like Naquin’s duties as a vessel repair

supervisor, Volk’s duties as a barge maintainerrepairer contributed to the mission and function of

15 App. C, A-86-87.

the vessels, as “vessel repair is classic seaman's

work.”16 As was true with Naquin, Volk’s job as a

barge maintainer-repairer was essential to the

Buchanan barge fleet’s performance of its intended

mission.

In Naquin, EBI’s argument that, because

Naquin’s duties did not “regularly expose [him] to

the perils of the sea,” he did not qualify as a seaman,

is almost exactly the same argument used by the

Second Circuit in its attempt to distinguish Naquin.

However, in Naquin, the Fifth Circuit disagreed:17

EBI emphasizes that Naquin was

rarely required to spend the night

aboard a vessel, that the vessels he

worked upon were ordinarily docked,

and that he almost never ventured

16 Naquin, 744 F.3d at 927.

17 Id. [Emphasis added].

beyond the immediate canal area18

or onto the open sea. However, courts

have

consistently

rejected

the

categorical assertion that workers who

spend their time aboard vessels near

the shore do not face maritime perils.

While these near-shore workers may

face fewer risks, they still remain

exposed to the perils of a maritime work

environment.28 As the Supreme Court

explained in Stewart v. Dutra:

[I]t seems 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; but

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 operatives

and new conditions which are

brought into existence in the

progress of the world.29

18 This canal, a quiet body of water, is a man-made slip, an

extension of the Houma Navigational Canal located in an

industrial area of Houma, Louisiana, miles from the Gulf of

Mexico or any other open body of water.

Volk worked on barges (scows) and aboard the

“little work barge” on the Hudson River, a busy

navigable river traversed by big ships—certainly

more dangerous than the navigational canal on

which Naquin worked.

The decision below also conflicts with In re

Endeavor Marine Inc., 234 F.3d 287 (5th Cir. 2000),

a case cited by Volk but not discussed by the court

below. In Endeavor, the Fifth Circuit held that even

though “his duties [did] not literally carry him to

sea,” a crane operator, injured on a crane barge used

to unload a cargo vessel on the brown waters of the

Mississippi River, satisfied the nature test and he

was a Jones Act seaman.19

The Second Circuit’s interpretation of the

“going to sea” test, citing Harbor Tug 520 U.S. 548,

19 Endeavor, 234 F.3d at 292.

conflicts with the Fifth Circuit’s interpretation. The

Second Circuit held:20

Volk never operated a barge and

only worked aboard the barges when

they were secured to the dock.21 See

Harbor Tug & Barge Co., 520 U.S. at

555, 117 S.Ct. 1535 (“For the

substantial connection requirement to

serve its purpose, the inquiry into the

nature of the employee's connection to

the vessel must concentrate on whether

the employee's duties take him to sea.”).

However, in Endeavor, the Fifth Circuit

reversed the district court’s decision “that found that

Baye's connection to the FRANK L was not

substantial in nature because ‘it did not take him to

20 Buchanan, 874 F.3d at 366, App. A, A-23.

This statement appears inconsistent with that

court’s statement that, “When a barge was tied to

other barges—rather than tied directly to the dock—

barge maintainers would climb over the barges to get

to the one they needed to inspect.”

sea. His work brought him aboard the barge only

after the vessel was moored or in the process of

mooring,’” and held that the crane operator was

regularly exposed to the “perils of the sea.”22

The Fifth Circuit also explained the duration

and nature of the connection requirement:23

The duration of the worker's

connection to a vessel and the nature of

the worker's activities taken together,

determine

whether

maritime

employee is a seaman because 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. Chandris, 515

U.S. at 370, 115 S.Ct. 2172 (citations

omitted).

In Endeavor, although Baye normally worked

while the barge was moored to the shore, his duties

did “place him on the brown waters of the

22 Endeavor, 234 F.3d at 291-292.

23 Endeavor, 234 F.3d at 290-291.

Mississippi River.”24 Similarly, Volk’s duties placed

him on the Hudson River, as the barges he worked

on were tied to one another, to the pier, and moved

from unloaded to loaded racks through the open

waters of the Hudson.25 Volk was daily required to

leave the dock to perform his work directly afloat on

the Hudson River,26 as he loaded his repair tools and

equipment onto the “little work barge” to navigate it

to the barges. Volk and the other barge maintainers

would “man the pumps” while riding aboard each

empty barge when pushed from the “unloaded” rack

of barges out into open water in the Hudson River.27

24 Endeavor Marine, 234 F.3d at 287, n. 3.

25 App. C, A-92-93.

26 App. C, A-88; A-96.

27 App. C, A-95-96.

Volk was not an “employee who happen[ed] to

be working on the vessel at a given time.”28 Rather,

Volk had worked 100% of his time as a barge

maintainer-repairer on the open waters of the

Hudson for 12 years.

The Second Circuit’s decision also conflicts

with the Fifth Circuit’s decision in Grab, 506 F.

App'x 271. In Grab, the Fifth Circuit affirmed the

district court’s determination that two ironworkers

who “performed part of their work from a derrick

barge, the BIG MAC, and part of their work from the

bridge structure,” were seamen.29 In Grab, the court

rejected the employer’s argument “that Kinchen

cannot satisfy the second Chandris prong because

Kinchen is a land-based worker whose job does not

28 Endeavor, 234 F.3d at 291.

29 Grab, 506 F. App'x at 273.

regularly expose him to the ‘perils of the sea,’ ”30 and

held that:31

[T]he fact that Kinchen returned home

daily did not remove him from his

exposure to cognizable dangers of the

sea.1 Nor does the classification of

Kinchen as a bridge ironworker, a

traditionally land-based occupation,

serve to negate the seaman status to

which Kinchen would otherwise be

entitled by virtue of his connection to

the BIG MAC. See Sw. Marine, Inc. v.

Gizoni, 502 U.S. 81, 89, 112 S.Ct. 486,

116 L.Ed.2d 405 (1991).2

As was true with the ironworkers in Grab, the

fact that Volk returned home nightly did not mean

that he was not exposed to “perils of the sea.”

Similarly, what Volk’s occupation might have been

called cannot supersede the “seaman status to which

[Volk] would otherwise be entitled by virtue of his

30 Id. at 275.

31 Id. at 276.

connection to the [Buchanan fleet of vessels].”32

During Volk’s employment, he and the other barge

maintainers knew and experienced the constant

daily perils of operating and navigating the “little

work barge” on the river in open water in all types of

weather to access and repair Buchanan’s loaded and

unloaded barges. They kept a constant lookout over

the waters of the Hudson River so “they didn’t get

crushed.”33

In Braniff, 280 F.2d at 528, the court held:

The usual thing, of course, is for a

person to have a Jones Act seaman

status in relation to a particular vessel.

But there is nothing about this

expanding

concept

limit

mechanically to a single ship. If the

other factors summarized above and set

out in such detail in Offshore Company

v. Robison, supra, are otherwise

present, we see no insurmountable

32 Id.

33 App. C, A-96.

difficulty with respect to element (1) in

the fact that such person is ‘assigned

permanently to’ several specific vessels

‘or perform(s) a substantial part of his

work on the’ several specified ‘vessel(s).’

Offshore Company v. Robison, supra,

266 F.2d 769, 779.

The Second Circuit also held that: “Here,

Franz had bareboat chartered the Barge along with

his fleet of other barges and tugboats to Buchanan.

Pursuant to the bareboat charter, Franz transferred

exclusive control to Buchanan to use, operate,

command, and navigate his fleet of barges and

tugboats.”34

Volk serviced every Buchanan-owned/operated

barge that came to the Tilcon facility (12-16 per day)

and not just one. Volk had a substantive connection

to an “identifiable fleet” of vessels, all under common

control of Buchanan, his employer.

34 Buchanan, 874 F.3d at 370, n. 3, App. A, A-37.

The Eighth Circuit. In Slatton, 506 F.2d at

510:

Here the barge was in navigable

waters and the men were working on a

maritime installation. Part of plaintiff's

work was on the barge itself in

connection with his other duties

constructing the dolphin. There appears

to be a sufficient nexus between the

plaintiff's work on the floating barge

and the installation of the maritime

dolphin structure to merit submitting

the issue to the jury. In light of the

record, we cannot say as a matter of law

that the jury's verdict was legally

erroneous. The jury can approve Jones

Act coverage if there is evidence that (1)

the injured workman performed at least

a substantial part of his work on the

vessel (virtually any floating structure

used for transport in navigable waters)

and (2) the capacity in which he was

employed and duties which he

performed contributed to the function of

the vessel or to the accomplishment of

its mission. Offshore Company v.

Robison, supra at 779.6

In Bunch, 419 F.3d 868, the court reversed

summary judgment adverse to a barge cleaner.

Bunch worked on a cleaning barge which could not

move by itself, “originally [] built for navigation,” and

which “was later moored to the bed of the Missouri

River by spud poles” Id. at 870, citing this Court’s

decision in Stewart, 543 U.S. 481.

As in Bunch, barge B-252 was a vessel in

navigation, as that barge was moved from the

southern nesting or fleeting area to be loaded with

quarried crushed stone or gravel and then made its

river voyage from Clinton Point to New York Harbor

or nearby Long Island Sound.35

There are conflicting district court summary

judgment determinations concerning floating casino

boats in the Southern District of Iowa. Please see

Lara v. Harveys Iowa Mgmt. Co., 109 F. Supp.2d

1031 (S.D. Iowa 2000) and Frederick v. Harvey's

35 App. C, A-87, 98, 99.

Iowa Mgmt. Co., 177 F. Supp.2d 933 (S.D. Iowa

2001).

The Ninth Circuit. In Delange, 183 F.3d at

920, the court reversed a determination that

Delange, who was hired as a carpenter but who

actually did “mechanical work, welding, carpentry,

supply runs, and occasionally pile driving” work, was

a land-based worker and not a member of the crew of

a barge or tug used in Dutra’s construction projects.

The result was the same in Scheuring, 476

F.3d at 786–87. The Ninth Circuit reversed the

determination

that

crane

operator

construction barge was not a seaman. That court

examined “whether the plaintiff has presented

evidence that would allow a jury to find a substantial

connection to the vessel both in terms of duration

and nature” and assessed the perils of the sea he

faced while performing his duties:

Here, Scheuring alleges that the

boat was subject to sea swells, wind

waves, vessel wakes and tidal currents.

He further alleges that the barge fleeted

on her anchor lines on a daily basis.

And, most importantly, on at least three

occasions, the plaintiff was aboard the

barge as it was unmoored and moved by

a tugboat.

Volk’s duties exposed him to the “perils of the

sea” as the “lower Hudson River is a tidal estuary,

subject to tidal variations, weather conditions, wind

conditions and strong currents.”36

In citing Denson v. Ingram Barge Co., 2009

WL 1033817 (W.D. Ky. 4/16/09) as authoritative, the

Second Circuit was apparently unaware of Gulasky

v. Ingram Barge Co., 2006 WL 119381 (W.D. Ky.

1/10/06) (denying summary judgment to the same

employer but at a different location). See also,

36 App C, A-96.

Luckett v. Cont'l Eng'g Co., 649 F.2d 441, 442–45

(6th Cir. 1981) (reversing summary judgment).

IV. THE SECOND CIRCUIT’S OPINION

IS INCONSISTENT WITH RULINGS

OF THIS COURT

Neither

the

court

below

nor

Buchanan

adverted to or discussed three cases from this Court

cited by Volk that establish seaman-status tests

conflicting with the Second Circuit’s opinion. The

Second Circuit also misapplied Harbor Tug & Barge

Co. v. Papai, 520 U.S. 548 (1997).

In Wilander, 498 U.S. 337, 355, this Court

held that “[i]t 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.”

This Court rejected the narrow interpretation of

“perils of the sea” embraced by Second Circuit and

stated:37

We believe the better rule is to

define “master or member of a crew”

under the LHWCA, and therefore

“seaman” under the Jones Act, solely in

terms of the employee's connection to a

vessel in navigation. This rule best

explains our case law and is consistent

with the pre-Jones Act interpretation of

“seaman” and Congress' land-based/seabased distinction. All who work at sea

in the service of a ship face those

particular perils to which the

protection

maritime

law,

statutory as well as decisional, is

directed. See generally Robertson, A

New Approach to Determining Seaman

Status, 64 Texas L.Rev. 79 (1985). It is

not the employee's particular job that is

determinative, but the employee's

connection to a vessel.

As is discussed in detail in Appendix C, Volk’s

working conditions were perilous. He worked every

day of the work week (when the Hudson River was

not frozen over) from 5:30 A.M. to as late as 9:00

37 Wilander, 498 U.S. at 354 [Emphasis added].

P.M. pumping out and patching up the Buchanan

barges so that they would not capsize as happened

just a few weeks before his accident.38 Not only was

the seaman work that Volk performed for 12 years

dangerous, but, after the capsizing, Tilcon insisted

that the Buchanan barge maintainers board the

barges after they were loaded.39 Many of these

barges, such as the B252, on which Volk was so

badly hurt, had margin decks no more than eighteen

inches wide (and normally much less) cluttered with

wet stone that were so dangerous that Tilcon forbad

its own employees from boarding them. Older barges,

such as the B-252 which was subsequently scrapped,

were not only worn out with weepers and scuppers

38 Appendices D and E are dramatic photographs of

these two barges.

39 App. C, A-106.

that leaked stone onto the margin decks but had

gunwales that were razor sharp from unloading the

stone.40

When Volk slipped on the stone on the margin

deck, he just barely avoided being impaled on the

gunwale and crushed or drowned between the B252

and the barge tied next to it.41

In Gizoni, 502 U.S. 81, 92, this Court held

that:

Because a ship repairman may

spend all of his working hours aboard a

vessel in furtherance of its mission—

even one used exclusively in ship repair

work—that worker may qualify as a

Jones Act seaman. By ruling as a

matter of law on the basis of job title or

occupation alone, the District Court

foreclosed Gizoni's ability to make this

showing.

40 App C, A-107-109.

41 App C, A-106-109.

The

several-employer-owned

vessels

from

which Gizoni worked included a pontoon barge

similar to the “little work barge”42 from which Volk

made repairs to the fleet of Buchanan-owned

unmanned barges (scows) when he was not actually

aboard each barge for inspection and repair.

The holding in Gizoni43 was characterized in

Chandris, as “Thus, we concluded, the Jones Act

remedy may be available to maritime workers who

are employed by a shipyard and who spend a portion

of their time working on shore but spend the rest of

their time at sea.” Of course, “at sea” while working

for Southwestern Marine, meant San Diego Bay.

Volk spent no time working on shore and all of his

time on barges and other vessels afloat on the

42 App. C, A88, 90.

43 Chandris, 515 U.S. at 364, 368.

dangerous Hudson River. Volk did not spend just a

fraction of his time on the barges and the “little work

barge.” His work aboard these vessels was neither

transitory nor sporadic. Volk was therefore not “land

based,” even though he went home every night and

had a non-seaman union affiliation.44

In Naquin, as quoted supra, Stewart v. Dutra

was properly relied on by the Fifth Circuit.

Unlike in the present case where all 150-200

barges and other vessels were owned/operated by

Buchanan, there was no fleet of vessels under

common control in Harbor Tug, 520 U.S. at 555-556.

According to Justice Stevens in dissent, “If all of that

deckhand work had been performed for petitioner

44 Chandris, 515 U.S. at 371; Harbor Tug, 520 U.S.

at 558-559, citing Northeast Marine Terminal Co. v.

Caputo, 432 U.S. 249, 268, n. 30 (1977).

[the employer], there would be no doubt about

Papai's status as a seaman.”45

V. THE MOST AUTHORITATIVE

COMMENTATORS HAVE EITHER REJECTED

“PERILS OF THE SEA” AS A DEFINING

CATEGORY OR HAVE URGED THIS COURT

TO PROVIDE CLARITY TO THIS TROUBLED

AND UNCERTAIN AREA OF MARITIME LAW

Please see the careful discussion in § 2:8.

Jones Act seaman—Seamen—Perils of the sea, 1,

Force and Norris, The Law of Seamen § 2:8 (5th ed.)

and in their “Members of a crew” distinguished from

longshoremen, harborworkers—Seamen: Perils of the

sea, The Law of Maritime Personal Injuries § 4:10.

In Admiralty & Mar. Law § 6-9 (5th ed.), § 6-9.

Seaman

status,

Schoenbaum

characterizes

the

present law as flawed and fundamentally unfair.

Other

commentators

have

addressed

the

conflicts among the circuits in determining “seaman”

45 Harbor Tug, 520 U.S. at 561.

status under the Jones Act and the appropriateness

of this Court’s clarification of the “seaman” test.”46

CONCLUSION

46 Please

see McCormack, How Congress & Scotus

Have Failed the American Seaman: A Modern

Analysis of Obtaining "Seaman" Status Under the

Jones Act & the United States Supreme Court's 2014

Denial of William S. Dize, 29 U.S.F. Mar. L.J. 1, 2–

27 (2017); Coley, The "Perils of the Sea" -Man Status

Question: The Fifth Circuit Falls Behind FELA's

Advancements

Continued

Remedies

Confusion

Surrounding

Favor

the

Seaman

Definition, 39 Tul. Mar. L.J. 371, 372–81 (2014);

Gennaro, Jones Act Status: How the Naquin and

Dize Decisions Perpetuate Status Confusion and

Prove Need for Clarification, 15 Loy. Mar. L.J. 345,

346–74 (2016).

Considering the conflict between the courts of

appeal, this Court should grant review to provide

guidance on the proper standards when applying the

seaman test to ship maintainers, ship repairers, and

all other maritime workers who are truly exposed to

the “perils of the sea” on a daily basis while

maintaining and repairing a vessel or fleet of vessels

under the common ownership of their employers.

Above all, it is important that Volk, on the face of the

facts found by the court below, meets every test

established by this Court. Importantly, Volk was

injured on the B-252, a Buchanan vessel that he

maintained.

This case presents an appropriate opportunity

to clarify the law and, by so doing, to remove some of

the arbitrariness and unfairness apparent in the

jurisprudence

and

bemoaned

least

one

distinguished commentator and universally criticized

by others. The petition should be granted.

Respectfully submitted,

KOERNER LAW FIRM

/s/ Louis R. Koerner, Jr.

Louis R. Koerner, Jr.

A member of the Louisiana Bar

1204 Jackson Avenue

New Orleans: 504-581-9569

Telecopier: 504-324-1798

(Cellular) 504-405-1411

e-mail: koerner@koerner-law.com

URL: http:/www.koerner-law.com

Steven M. Melley

/s/ Steven M. Melley

Richard Nardone

/s/ Richard Nardone

Members of the New York Bar

STEVEN M. MELLEY, P.L.L.C.

24 Closs Drive

Rhinebeck, New York 12572

845-876-4057

Counsel for Petitioners,

Wayne Volk and Karen Volk

January 16, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.