Petition — American Commercial Barge Lines v. Berry

o 3 om 1 1 fH) 3 wees 4% U.S.

JAN 3 1084

N ALEXANDER L. STBVAS,

0. CLERK

IN THE

Supreme Court of the United States

OcToOBER TERM, 1983

Patrick H. Berry,

Plaintiff-Respondent,

VS.

AMERICAN COMMERCIAL BARGE

LINES, a corporation,

Jerr Boat, INc. and LouIsiANA

Dock Boat ComPANy, INC

Defendants-Petitioners.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT FOR THE

FIFTH JUDICIAL DISTRICT OF ILLINOIS

Eric C. YOUNG

520 First Illinois Bank Building

East St. Louis, Illinois 62201

(618) 271-0535

Attorney for Defendants-

Petitioners

a EES

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED FOR REVIEW

Whether The Plaintiff, Patrick Berry, Was By

Statutory Definition A Longshoreman As A Mat-

ter Of Law, And Hence Not A Seaman Or Master

Or Member Of A Crew As A Matter Of Law.

Whether The Trial Court Erred In Giving

Plaintiff's Instruction No. 21 Which Defined A

Master Or Member Of A Crew.

PARENT COMPANIES, SUBSIDIARIES AND AFFILIATES

PARENT COMPANIES: American Commercial Lines, Inc.

is the parent company of the petitioners. Until July, 1983 Texas

Gas Corporation was the parent corporation. However, in July,

1983 American Commercial Lines, Inc. was put in an indepen-

dent trust with subsidiaries.

SUBSIDIARIES AND AFFILIATES: American Commer-

cial Barge Lines Company, Jeffboat Incorporated and Loui-

siana Dock Company, Inc. are affiliates of the following:

Amcom, Inc., Commercial Barge Line Company, Inland

Tugs Company, Mac Towing, Inc., Waterway Communications

Systems, Inc., Mineral Properties, Inc., Combarco Industrial

Limitada, American Commercial Terminals, Inc., Inland Ter-

minals, Inc., American Freight Systems, Inc., All-American

Redevelopments Corporation, Midwest Coast Transport, Inc.,

Atlantic Transport Service, Inc., Transport Brokerage, Inc.,

M.C.T. Services, Inc., Sioux Falls Service Center, Inc., Bauer

Dredging Company, Inc., American Commercial Credit Cor-

poration and American Commercial Leasing Company, Inc.

TABLE OF CONTENTS

Questions Presented For Review . Se) erry eng

Parent Corporations, Subsidiaries And Affiliates ......

Table Of Contents

Table Of Authorities . ; ene amenewee

Citation Of Case Below Py re

Jurisdictional Statement Ba rr rey oer

Statutes Involved .. PATE TE Pe ee Pee

ND ET EEO 6g vcs acccccodesarecesedecs

Reasons For Granting The Writ.................

1. Whether The Plaintiff, Patrick Berry, Was By

Statutory Definition A Longshoreman As A Mat-

ter Of Law, And Hence Not A Seaman Or Master

Or Member Of A Crew As A Matter Of Law......

11. Whether The Trial Court Erred In Giving Plain-

tiff’s Instruction No. 21 Which Defined A Master

a Se en ee ee ae»

I tol ei it eS ort See re) es

OU cid awed sa eke kek oss acbkadeca cease Deus

Illinois Supreme Court Order

ee eo oie eae le do ie DR pes ie ee

Appellate Court Opinion

EE eT Or er ney eye

Photo Of Shipyard

Page

A-l

A-2

A-35

TABLE OF AUTHORITIES

Page

Berry v. American Commercial Barge Lines, 114 Ill.

App.3d 354, 71 Ill. Dec. 1, 450 N.E. 2d 436 (Ill.

App. Sth Dist. 1983) .......... Sobbesvebacks 1,6

Bloomer v. Liberty Mutual, 445 U.S. 74, 100 S.Ct. 925,

i cn. occdncctnducsneevnuneta 7

Buna v. Pacific Far East Line, Inc., 441 F. Supp. 1360

UR” BR. SR eer re 11,15

Cox v. Otis Engineering Corp., 474 F.2d 613 (Sth Cir.

DU CSc rah Guat Kuces cies cate su wbtowebeacen 11,15

Davis v. Hill Engineering, Inc., 549 F.2d 314 (Sth Cir.

Dt sah one tah ae takne dao eae dip athn eer eeuw 1]

Director v. Perini, 103 S.Ct. 634 (1983). .............. 7,9

Guidry v. South Louisiana Contractors, Inc., 614 F.2d

PINS ca bhic sage es sesh 60 00eeEeebodbbe's ka 10

Northeast Marine Terminal Co. v. Caputo, 432 U.S.

249, 97 S.Ct. 2348, 53 L.Ed. 2d 320(1977) ....... 7

Norton v. Warner Company, 321 U.S. 565, 64 S.Ct.

Py bes OE CEs Ws wensceedvddwevecdevn 9,10

Pfeiffer Company, Inc. v. Ford, 444 U.S. 69, 100 S.Ct.

RE Recs OP AEP CONTE co cvincccncvecneucse 7,8,12

Richardson v. Norfolk Shipbuilding and Drydock

Corp. 479 F.Supp. 259 (E.D. Va., 1979) ......... 11

Salgado v. M. J. Rudolph Corp., 514 F.2d 750 (2nd

Se TEs cw wines end vs eds sabes cansewecebnas 11,15

South Chicago Dock Company v. Bassett, 309 U.S. 251,

GO S.Ct. 374, 87 L.Ed. $35 (1940) ..... 2... cece ees

Sun Ship, Inc. v. Commonwealth of Pennsylvania, 447

U.S. 715, 100 S.Ct. 2432, 65 L.Ed. 2d 458 (1980)

Whittington v. Sewer Construction Co., 541 F.2d 427

(4th Cir. 1976)

(1972) U.S. Code Cong. and Admin. News 4703-04

H.R.Rep. No. 1441, 92nd Congress, 2d Sess. 6

No.

IN THI

Supreme Court of the United States

OcTOBER TERM, 1983

PaTRICK H. BERRY,

Plaintiff-Respondent,

Vs.

AMERICAN COMMERCIAL BARGE

LINES, a corporation,

Jerr Boat. Inc. and LOUISIANA

Dock Boat CoMPANY, INC

Defendants-Petitioners.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT FOR THE

FIFTH JUDICIAL DISTRICT OF ILLINOIS

CITATION OF CASE BELOW

Patrick H. Berry v. American Commercial Barge Lines, A,

Corporation, Jeffboat, Inc. and Louisiana Dock Company,

Inc., 114 Ill.App.3d 354, 71 Ill. Dec. 1, 450 N-E. 2d 436 (Ill.

App. Sth Dist. 1983).

JURISDICTION

Judgment in the amount of $250,000 was entered on August

4, 1981 in the Circuit Court for the Third Judicial Circuit for Il-

linois. An appeal was taken to the Appellate Court of Illinois

for the Fifth District and the judgment was affirmed on May 27,

1983. A Petition for Leave to Appeal to the Illinois Supreme

Court was filed. On October 4, 1983 the Illinois Supreme Court

tw

denied the petition for Leave to Appeal and it is from that final

order that the petitioners seek relief in this Court.

Jurisdiction to review the judgment is conferred by 28 U.S.C.

$1257 because the primary issues involved in this appeal involve

the State Court’s interpretation of 46 U.S.C. 688, commonly

referred to as the Jones Act and 33 U.S.C. 901, et seq., known

as the Longshoremen’s and Harbor Workers’ Compensation

Act.

STATUTES INVOLVED

Longshoremen’s and Harbor Workers’ Compensation Act, 33

U.S.C., §901 et seq.

33 U.S.C. $902

(3) The term ‘‘employee’’ means any person engaged in

maritime employment, including any longshoreman or other

person engaged in longshoring operations, and any harbor-

worker including a ship repairman, shipbuilder, and ship-

breaker, but such term does not include a master or member of

a crew of any vessel, or any person engaged Uy the master to

load or unload or repair any small vessel under eighteen tons

net.

(4) The term ‘‘employer’’ means an employer any of whose

employees are employed in maritime employment, in whole or

in part, upon the navigable waters of the United States (in-

cluding any adjoining pier, wharf, drydock, terminal, building

way, marine railway, or other adjoining area customarily used

by an employer in loading, unloading, repairing, or building a

vessel).

33 U.S.C. §903 Coverage

(a) Compensation shall be payable under the Act in respect of

disability or death of an employee, but only if the disability or

death results from an injury occurring upon the navigable

a

waters of the United States (including any adjoining pier,

wharf, drydock, terminal, building way, marine railway, or

other adjoining area customarily used by an employee in

loading, unloading, repairing, or building a vessel). No compen-

sation shall be payable in respect of the disability or death of -

(1) A master or member of a crew of any vessel, or any per-

son engaged by the master to load or unload or repair any

small vessel under eighteen tons net; or

(2) An officer or employee of the United States or any

agency thereof or of any State or foreign government, or

of any political subdivision thereof.

33 U.S.C. §905 Exclusiveness of liability

(a) The liability of an employer prescribed in section 4 [33 USCS

§904] shall be exclusive and in place of all other liability of such

employer to the employee, his legal representative, husband or

wife, parents, dependents, next of kin, and anyone otherwise

entitled to recover damages from such employer at law or in ad-

miralty on account of such injury or death, except that if an

employer fails to secure payment of compensation as required

by this Act, an injured employee, or his legal representative in

case death results from the injury, may elect to claim compensa-

tion under the Act, or to maintain an action at law or in ad-

miralty for damages on account of such injury or death. In such

action the defendant may not plead as a defense that the injury

was caused by the negligence of a fellow servant, or that the

employee assumed the risk of his employment, or that the injury

was due to the contributory negligence of the employee.

Jones Act .

46 U.S.C. §688 Recovery for injury to or death of seaman.

Any seaman who shall suffer personal injury in the course of his

employment may, at his election, maintain an action for

— os

damages at law, with the right of trial by jury, and in such ac-

tion all statutes of the United States modifying or extending the

commonlaw right or remedy in cases of personal injury to

railway employees shall apply; and in case of the death of any

seaman as a result of any such personal injury the personal

representative of such seaman may maintain an action for

damages at law with the right of trial by jury, and in such action

all statutes of the United States conferring or regulating the

right of action for death in the case of railway employees shall

be applicable. Jurisdiction in such actions shall be under the

court of the district in which the defendant employer resides or

in which his principal office is located.

STATEMENT OF THE CASE

Plaintiff Patrick Berry was employed by Louisiana Dock

Boat Company, Inc. and affiliate of America Commercial

Barge Lines, (R. 309-310) as a first class fitter (R. 335) at a

shipyard repair facility located on the Mississippi River at the

foot of Plum Street ia Alton, Illinois. The facility consisted of

an office, machine and mechanical barges, as well as two

drydocks. The employees got to work from the shore through

the use of a walkway over water. Many of the barges, including

the office barges, were permanently affixed to the shore (R.

21-22). None of the drydock barges had any motive power. The

drydocks were attached to shore with large steel arms and cables

(R. 41-42). An aerial photograph of the facility is attached in the

appendix.

The drydock, on which the plaintiff performed repair work

on vessels, including the R. W. Naye, would lift the vessels out

of the water enabling the shipyard workers to work beneath the

ship (R.22-23, 89-90). At the facility there could be a maximum

of 25 vessels in the drydock area in need of repair as well as 10 to

20 vessels nearby awaiting repair (R. 70, Volume 3). These in-

cluded vessels which were not owned by the defendant,

American Commerical Barge Lines (R. 124).

=

On November 29, 1973 the plaintiff twisted his leg while at-

tempting to replace a steel patch on a barge being repaired on a

daughter dock at the shipyard facility (R. 336, 338). On

December 10, 1973 he reinjured his knee while repairing a shaft

on the R.W. Naye, a vessel being repaired while it was up on the

daughter dock (R. 340, 57).

The plaintiff alleged that he was a seaman which would entitle

him to recover under the Jones Act, 46 U.S.C. § 688, et seq.

At trial the defendants moved for a directed verdict at the end

of all the evidence on the grounds that the plaintiff was not a

member of the crew under the Jones Act, and, further, that the

plaintiff’s exclusive remedy was under the Longshoremen’s and

Harbor Workers’ Act 33 USC §905(a) (R. 415-427). The Court

denied the motion for directed verdict (R. 426). A post trial mo-

tion was filed on September 9, 1981, and again the defendants

raised the issue that the plaintiff was not a Jones Act seaman

and that his exclusive remedy was under the Longshoremen’s

and Harbor Workers’ Compensation Act, 33 U.S.C. 90S(a) (C.

453). On December 1, 1981 the Court denied the post trial mo-

tion. (C-481).

The appellant’s brief raised the issue that the trial court erred

in failing to direct a verdict for the defendants on the issue of

the plaintiff's status as a seaman, and the appellant’s brief

argued that the plaintiff was not a seaman or member of the

crew, but was a longshoreman whose exclusive remedy was

under the Longshoremen’s and Harbor Workers’ Act, 33

U.S.C. 901, et seq.

_ Pp

REASONS FOR GRANTING THE WRIT

|. Whether The Plaintiff, Patrick Berry, Was By Statutory

Definition A Longshoreman As A Matter Of Law, And

Hence Not A Seaman Or Master Or Member Of A Crew

As A Matter Of Law.

In Berry v. American Commercial Barge Lines, 114

Ill.App.3d 354, 71 Ill. Dec. 1, 450 N.E. 2d 436 (Ill. App. Sth

Dist. 1983), the Appellate Court for the Fifth District of Illinois

expanded the status of member of a crew to include

longshoremen and more particularly longshoremen engaged in

ship repair. The Longshoremen’s and Harbor Workers’ Act, 33

U.S.C. §901, et seq., defines an employee as any person in-

cluding any longshoreman engaged in ship repair but an

employee does not include a master or member of a crew of any

vessel. 33 U.S.C. §902 (3). The Appellate Court of Illinois has

decided an important question of federal law in a way in conflict

with applicable decision of this Court and in conflict with the

Statutory scheme for protecting those engaged in maritime

empioyment. As such this Court should settle this important

question of federal law.

The Illinois court has allowed a longshoreman to sue his

employer under 46 U.S.C. §688, known as the Jones Act,

despite the mutually exclusive nature of the two acts. As a result

of the Appellate Court opinion in this case, the petitioners’ at-

torney has been contacted by a workers’ compensation attorney

who represents what has, until now, been considered an

employer under the Longshoremen’s and Harbor Workers’

Compensation Act. The workers’ compensation attorney ad-

vises that in the event that the opinion of the Illinois court is to

be the law of Illinois, the attorney will advise his clients that

they should deny benefits under the Longshoremen’s and Har-

bor Workers’ Compensation Act to all employees in respondent

Patrick Berry’s situation. The rationale, of course, is that if

such employees are going to claim to be members of a crew of a

vessel, then they are to be excluded from benefits under 33

U.S.C. 903.

——

This Court has addressed the 1972 Amendments to the

Longshoremen’s and Harbor Workers’ Compensation Act and

has defined the status and situs requirements under the Act.

One of the reasons for the expanded definition of longshoreman

is to enable both workers and employers to predict with

reasonable assurance who is protected by the 1972 Act. Pfeiffer

Company, Inc. v. Ford, 444 U.S. 69, 100 S. Ct. 328, 62 L. Ed.

2d 225 (1979). Another reason for consistent definitions is to

avoid fortuitous results. Director v. Perini, 103 S.Ct. 634 (1983)

n. 29. A third reason for defining those within the scope of the

Act is to avoid the preamendment results of having employees

walk in and out of coverage. Director v. Perini, supra.

The Appellate Court decision in this case serves none of the

purposes enumerated by this Court’s decisions and will create

uncertainty and fortuitous results.

One of the purposes of the 1972 Amendments was to improve

the benefits schedule which was deemed inadequate by all par-

ties. In exchange for an increase in benefits the employer was

guaranteed that a payment under the Longshoremen’s and har-

bor Workers’ Act was the employees exclusive remedy and the

employer would not be subject to additional! lawsuits because of

the injury. In addition, the elimination of the lawsuits increased

the fund available for compensation. Northeast Marine Ter-

minal Co. v. Caputo, 432 U.S. 249, 97S. Ct. 2348, 53 L. Ed. 2d

320 (1977). As an indication of the importance of preserving

and increasing the fund this Court has even denied attorneys’

fees and expenses and has required full reimbursement to the

stevedore for amounts paid under the Act. Bloomer v. Liberty

Mutual, 445 U.S.74, 100 S. Ct. 925, 63 L. Ed. 2d 215 (1980).

As a result of the 1972 Amendments this Court has expanded

the protection of the Act. In Northeast Marine Terminal Co. v.

Caputo, Supra., this Court stated: ‘‘the language of the 1972

Amendments is broad and suggests that we should take an ex-

pansive view of the extended coverage’’. 432 US 249 at 268. As

additional indications of the expansion of coverage see also

~ 8 .

Director v. Perini, Supra., and Sun Ship, inc. v. Com-

monwealth of Pennsyivania, 447 U.S. 715, 100 S. Ct. 2432, 65

L.Ed. 2d 458 (1980) and Pfeiffer Company, Inc. v. Ford,

Supra.

The Illinois court’s expansion of the class of workers entitled

to claim that they are ‘‘masters or member of any vessel’’ is in

conflict with this Court’s expansion of the mutually exclusive

class of longshoremen.

Why Respondent Is A Longshoreman.

The sections of the Longshoremen’s and Harbor Workers’

Act relevant to this case are the following. The italics indicates

the material added in 1972.

§ 903 ‘Coverage

*‘Compensation shall be payable under the Act in

respect of disability or death of an employee, but only if

the disability or death results from an injury occurring

upon the navigable waters of the United States (including

any adjoining pier, wharf, drydock, terminal, building

way, marine railway, or other adjoining area customarily

used by an employer in loading, unloading, repairing, or

building a vessel) ...”” 33 U.S.C. § 903(a).

§902 Definitions

(3) ‘‘The term ‘employee’’ means any person engaged in

maritime employment including any longshoreman or

other person engaged in longshoring operations, and any

harborworker including a ship repairman, shipbuilder, and

Shipbreaker, but such term does not include a master or

member of a crew of any vessel, or any person engaged by

the master to load or unload or repair any small vessel

under eighteen tons net.’’ 33 U.S.C. §902(3).

(4) ‘‘The term ‘employer’ means an employer any of whose

employees are employed in maritime employment, in

—

whole or in part, upon the navigable waters of the United

States (including any adjoining pier, wharf, drydock, ter-

minal, building way, marine railway, or other adjoining

area customarily used by an employer in loading,

unloading, repairing, or building a vessel). 33 U.S.C. §

902(4).

Prior to the 1972 Amendments, the Act contemplated that

those engaged in repairing ships would be covered under the

Act. In Norton v. Warner Company, 321 U.S. 565, 64 S.Ct. 747,

88 L.Ed. 931 (1944) this Court stated ‘‘and we are told by the

Senate report, as already noted, that the purpose of the legisla-

tion was to provide compensation for those who ‘are mainly

employed in loading, unloading, refitting, and repairing ships.’ ”’

at 572. However, the 1972 Amendments specifically enumerated

the categories of longshoremen, including repairmen, covered

by the Act. In Director v. Perini, supra., this Court discussed

the legislative history concerning the enumerations of categories

and concluded:

‘‘although the legislative history surrounding the addition

of the status requirement is not as clear as that concerning

the reasons for the extended situs, it is clear that with the

definition of ‘navigable waters’ expanded by the 1972

Amendments to include such a large geographical area, it

became necessary to describe affirmatively the class of

workers Congress desired to compensate.’’ At 647-648.

In a footnote the Court continued ...

‘*we note that our cases to date have focused on these ex-

plicit categories because the legislative history indicates

that Congress intended to extend landward coverage to

those specifically included occupations.’’ n. 27.

The respondent, Patrick Berry, was ship repairman working

for an employer on a drydock used for repairing a vessel and

was injured on said drydock which was customarily used by him

= es

for repairing vessels. The respondent clearly fits into the defini-

tions under the Longshoremen’s and Harbor Workers’ Com-

pensation Act. However, he is claiming to fall within the excep-

tion of being a member of a crew of any vessel. The reason for

the exception is clear. Members of a crew ‘‘preferred, however,

to remain outside the compensation provisions and, thus, to re-

tain the advantages of their election under the Jones Act....”’

South Chicago Dock Company v. Bassett, 309 U.S. 251, 60

S.Ct. 374, 87 L.Ed. 535 (1940) at 257. In Norton v. Warner

Company, supra., the Court again discussed the exception as

follows: ‘‘the effort to bring a master and member of a crew of

a vessel under the Act was successfully opposed by the represen-

tatives of maritime employees (cites omitted) and the maritime

unions which appeared as a Amici Curiae in the present case em-

phasized the importance of that exception. The liability of an

employer under the Act is exclusive.’” At page 570.

The important question is does a longshoreman transmute in-

to a seaman or member of a crew or are they two distinct

categories or status from the beginning. Since the concepts are

mutually exclusive it is assumed that they are different ab initio.

The member of a crew who comes landward and performs the

types of employment described in the Longshoremen’s and Har-

borworkers’ Compensation Act does not lose his status as a

seaman or member of a crew. The Jones Act, ‘“‘however, says

nothing about the place where the injury occurs. Therefore,

once it is established that a worker is a seaman, the Jones Act

permits him to recover from his employer even for injuries

received while he is on shore.’’ Guidry v. South Louisiana Con-

tractors, Inc., 614 F.2d 447 (1980) at 453. A member of a crew

does not become a longshoreman and for this reason the

Longshoremen’s and Harbor Workers’ Compensation Act ex-

cluded from its definition members of a crew to avoid any con-

fusion regarding their status.

It is something quite different to allow a longshoreman to

claim member of a crew status in every instance especially where

the employee clearly falls within the definition of longshoreman

at all times for both the situs and status tests enumerated by this

Court. An employee cannot be a longshoreman and claim he is

not a longshoreman because he is a member of a crew unless he

was a member of a crew initially.

Why Respondent Is Not A Member Of A Crew

The respondent did not have a more or less permanent con-

nection to a fleet of vessels which is one of the requirements for

seamanship status under the generally accepted definition.

Salgado v. M. J. Rudolph Corp., 514 F.2d 750 (2nd Cir. 1975),

Whittington v. Sewer Construction Co., 541 F.2d 427 (4th Cir.

1976), Cox v. Otis Engineering Corp., 474 F.2d 613 (Sth Cir.

1973), Buna v. Pacific Far East Line, Inc., 441 F.Supp. 1360

(N.D. Cal., 1977), Richardson v. Norfolk Shipbuilding and

Drydock Corp., 479 F.Supp. 259 (E.D. Va., 1979). The primary

reason that the respondent fails the permanency test is the fact

that he was a landbased worker. In Davis v. Hill Engineering,

Inc., 549 F.2d 314 (Sth Cir. 1977) the Court discussed this defi-

ciency in respondent’s claim of seaman’s status:

In contrast, the cases in which this Court has found the

permanency requirement a fatal stumbling block have

largely involved land based workers providing shore ser-

vices to docked vessels. In Thibodeaux v. J. Ray McDer-

mott & Co., 5 Cir. 1960, 276 F.2d 42, the Court reasoned

that the decedent has a transitory relation to the barge on

which he was injured where he was a regular shore worker

who ate, slept, and lived at home, was not assigned to any

particular vessel, and had worked only four days loading

and securing deck cargo on unmanned barges. Similarly,

this Court sustained a directed verdict for the defendant on

the seaman issue in Burns v. Anchor-Wate Co., 5 Cir.

1972, 469 F.2d 730, because the Plaintiff, a talleyman at a

pipe-coating yard, who never worked more than two or

three hours aboard any particular barge and never slept or

ee ee

ate aboard the barges or towing vessels, was not per-

manently assigned to the barge on which he was injured.

(Cites omitted) At page 327-328.

We have already seen that this Court is concerned with the

fact that before the 1972 Amendments to the Longshoremen’s

and Harbor Workers’ Compensation Act employees would

often walk in and out of coverage in a single day. If the respon-

dent in this case was truly a seaman and assigned to a vessel or

fleet of vessels, neither respondent nor his co-workers would be

expected to walk in and out of seamanship status every day. As

the photograph in the appendix shows there are many areas at

the repair facility for employees to work where they are not on

vessels in the drydock for repairs. These employees do welding

work in the shop, and, although they do substantially similar

work as that done by respondent, they could not claim seaman

status because they are not assigned to work on any of the

vessels.

Many of the vessels repaired at the facility were not in the

petitioners’ fleet of vessels. If the respondent is randomly

assigned to spend a significant amount of his time working on

petitioners’ fleet he would claim to be a member of the crew

under the Appellate Court’s holding. If a co-worker was ran-

domly assigned to repair vessels not owned by petitioners and

not part of petitioners’ fleet, but rather owned by others and

repaired by petitioners he could not claim to be a member of a

crew even though he did identical work to that done by respon-

dent. This is but one difficulty with the Appellate Court’s opi-

nion which extends the worker’s right to claim member of a

crew status as far as has been found in any case.

In Pfeiffer v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed. 2d

225 (1979), this Court traced the type of work that an employee

engaged to unload a vessel would do from the time the cargo

was in the hold of the vessel until it was in a warehouse. For pur-

poses of the status requirement of the Longshoremen’s and

Harbor Workers’ Compensation Act this Court held that it

a,

made no difference whether the employee was in the hold of the

vessel or in the warehouse so long as the employee’s job was an

integral part of the unloading process. By analogy in the instant

case we should look at whether the respondent was an integral

part of the repair process. In Pfeiffer this Court was going from

seaward tu landward to include the landward employee under

the Longshoremen’s and Harbor Workers’ Compensation Act.

In this case the petitioner asks the Court to look seaward. Other

workers at the repair facility in this case would not be able to

claim to be a member of the crew unless they were assigned to

work on the vessels in drydock. The respondent may have been

assigned to work one step seaward of the other employees.

However, the respondent was still an integral part of the repair

process and so was afforded the protection of the

Longshoremen’s and Harbor Workers’ Compensation Act.

The respondent in this case was a land based worker repairing

vessels in drydock. The 1972 Amendments eliminated the

unseaworthiness remedy for longshoremen and replaced it with

negligence concepts. The committee rationale for doing so sheds

light on why the respondent is not a member of a crew in this in-

stance.

‘*In reaching this conclusion the committee has noted that

the seaworthiness concept was developed by the courts to

protect seaman from the extreme hazards incident to their

employment which frequently requires long sea voyages

and duties of obedience to orders not generally required of

other workers. The rationale which justified holding the

vessel absolutely liable to seaman if the vessel is unseawor-

thy does not apply with equal force to longshoreman and

other non-seaman working on-board a vessel while it is in

port.’ (1972) U.S. Code Cong. and Admin News 4703-04

H.R.Rep.No. 1441, 92nd Congress, 2d Sess. 6.

Congress considered the type of work being done by Patrick

Berry and did not consider it to be the hazardous work done by

seaman. It is a further indication that Berry is not a seaman.

a: po

The Appellate Court opinion transmutes a longshoreman into

a seaman and if the Appellate Court decision is followed most,

if not all, workers who were previously thought to be covered

only under the Longshoremen’s and Harbor Workers’ Compen-

sation Act will file suit under the Jones Act. The Appellate

Court decision defies Congressional intent in enacting these two

Statutes and is the most liberal decision found by petitioners on

the issue of seaman status.

Il. Whether The Trial Court Erred In Giving Plaintiff’s In-

struction No. 21 Which Defined A Master Or Member Of

A Crew.

Over the defendant’s objection, Instruction No. 21 was sub-

mitted to the jury, as follows:

The proposition of whether the plaintiff was a member of

a crew of a vessel at the time of the accident is a question of

fact which you must determine, just as you determine all

questions of fact in the case.

You may find that the plaintiff was a member of a crew of

a vessel if you find:

(a). that the plaintiff's employment related to a

vessel having specific function (or mission); and,

(b). that the plaintiff had a part in the operations of

the vessel, whether it be related to the vessel’s

transportation or to the performance of its func-

tion (or mission).

It is not essential that the plaintiff be assigned to any par-

ticular vessel. He may have duties which require him to

serve On numerous vessels, and you may still find that he is

a member of the crew of the particular vessel involved in

this case.

One whose employment takes him onto a vessel may be

found to be a member of the crew, even though his stay

—

aboard is expected to last only for a very short period. You

may find that the defendant is a member of the crew of a

vessel even though the vessel has not moved on the water at

any time during the plaintiff's employment, and even

though there are no plans to move it at any time in the

foreseeable future.

There must, however, be more than an irregular connec-

tion between the plaintiff and some vessel in order that he

may be found to be a member of the crew. If the plaintiff

were a mere passenger being transported to a place of work

which is not connected with a vessel he is not a member of

the crew of the vessel in which he is being transported, even

though his employer owned that vessel and was transpor-

ting the plaintiff for its-own purposes.’’ (C 167-168).

This instruction was totally inaccurate, argumentative and

misleading. As stated in Section I, supra, the courts have

developed a three-part test to determine whether an individual is

a seaman (or a member of a crew), for the purposes of the Jones

Act. This test was stated in Cox v. Otis Engineering Corp., 472

F.2d 999 (Sth Cir. 1973), as follows:

1) The vessel on which the claimant is employed must be

in navigation.

2) There must be a more or less permanent connection

with the vessel.

3) The claimant must be aboard primarily in aid in

navigation.

See also Salgado v. M.J. Rudolph Corp., 514 F.2d 750 (2nd

Cir. 1975), Whittington v. Sewer Construction Co., 541 F.2d

427 (4th Cir. 1976), Buna v. Pacific Far East Line, Inc., 441

F.Supp. 1360 (N.D. Cal., 1977), The defendant offered this test

of seaman’s status as Instruction No. 12, but it was refused by

the trial court.

—

The second paragraph of the plaintiff's instruction purports

to be the applicable guidelines for the jury to determine whether

the plaintiff was a seaman (member of a crew). But, this

paragraph was nothing more than an attempt to restate prong

three of the above test. Nowhere are the first two prongs of the

test even remotely referred to in the instruction.

Yet, the question whether the plaintiff was ‘‘more or less per-

manently assigned to the vessel’’ in this case was crucial and at

best a close question of fact. In fact, the third and fourth

paragraphs of the instruction mislead the jury into thinking that

the plaintiff need not be permanently connected with a vessel.

While the first sentence of the fifth paragraph attempts to

qualify the earlier paragraphs, the second sentence of that

paragraph totally destroys its impact by implying that only

passengers will be deemed not to be a member of a crew. This

reference to a passenger heightened the prejudice of the instruc-

tion, for there was no evidence on the record, nor was it ever im-

plied by the defendants that the plaintiff was a passenger.

This instruction is clearly argumentative, for it has the effect

of directing a verdict on the issue of whether the plaintiff was a

member of a crew in favor of the plaintiff. The jury was totally

mislead to believe the plaintiff, to obtain seaman’s status, need

only be associated with some vessel, for some period of time, as

opposed to having a permanent connection with a vessel, unless

they found him to be a passenger, which was totally unlikely

since there was not a shred of testimony indicating that he was a

passenger. As such, the court erred in giving Instruction No. 21

for it had not basis in the law and because it was misleading and

argumentative.

an £0 ns

CONCLUSION

The petitioners contend that the plaintiff/respondent and all

other workers similarly employed are covered under the

Longshoremen and Harbor Workers’ Compensation Act and

are not a seamen as a matter of law and, hence the Trial Court

and Appellate Court and Illinois Supreme Court erred in not so

holding. We petition for certiorari to seek a reversal of the judg-

ment or a new trial with proper instructions on the definition of

member of a crew.

Respectfully submitted,

ERIC C. YOUNG

520 First Illinois Bank Bldg.

East St. Louis, Illinois 62201

(618) 271-0535

Attorney for the Defendants-

Petitioners

APPENDIX

my ee

APPENDIX A

Illinois Supreme Court

Juleann Hornyak, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 4, 1983

Mr. Eric C. Young

Dunham, Boman & Leskera

520 First Illinois Bank Bldg.

East St. Louis, IL 58319

No. 58319 - Patrick H. Berry, respondent, vs. American Com-

mercial Barge Lines, etc., et al., etc., petitioners.

Leave to appeal, Appellate Court, Fifth District.

The Supreme Court today DENIED the petition for leave to

appeal in the above entitled cause.

Very truly yours,

s/ Juleann Hornyak

Clerk of the Supreme Court

P.S. The Mandate of this Court will issue to the Appellate Court

on October 26, 1983.

tA

APPENDIX B

Berry v. American Commercial Barge Lines

Cite as 71 Ill.Dec. 1, 450 N.E.2d 436 (Ill.App. 5 Dist. 1983)

450 N.E.2d 436

114 Ill.App.3d 354

450 N.E.2d 436

Patrick H. Berry, Plaintiff-Appellee,

Cross-Appellant,

Vv.

American Commercial Barge

Lines, a corporation, Jeff Boat, Inc.,

and Louisiana Dock Company, Inc.,

Defendants-Appellants, Cross-Appellees.

No. 82-4.

Appellate Court of Illinois,

Fifth District.

May 27, 1983.

Shipfitter employed by subsidiary corporation brought action

under the Jones Act against the subsidiary and its parent cor-

poration for injuries sustained while repairing a vessel and barge

moored to a floating drydock. The Circuit Court, Madison

County, Horace Calvo, J., entered judgment on verdict for

shipfitter, and subsidiary and parent corporation appealed. The

Appellate Court, Welch, J., held that whether shipfitter

employed by subsidiary corporation was a ‘‘seaman’’ for pur-

poses of the Jones Act at time he sustained injuries while repair-

ing a vessel and barge moored to a floating drydock because

vessel and barge were in navigation when shipfitter was injured,

because shipfitter was a repair or maintenance worker who was

directly connected with keeping vessels in navigation or prepar-

— en

ing them to retain navigational capacity, and because shipfitter

had a more or less permanent connection with vessel or with a

specific group or fleet of vessels which contained them was

question for jury in resolving liability of subsidiary and its

parent corporation.

Affirmed.

Kasserman, J., dissented and filed opinion.

1. Seamen key 2%5.16)

Question whether an individual is a seamen for purposes of

the Jones Act depends upon the facts of the particular case and

the activity in which he was engaged at the time of the injury

and should be decided as a matter of law only when the underly-

ing facts are undisputed and the record reveals no evidence from

which reasonable persons might draw conflicting inferences.

Jones Act, 46 U.S.C.A. § 688.

2. Seamen key 29(5.16)

An individual’s status as a seaman for purposes of the Jones

Act presents a jury question if the individual was injured upon a

vessel in navigation, the individual was aboard that vessel

primarily to aid in navigation, and the individual had a more or

less permanent connection with the vessel or with a specific

group or fleet of vessels. Jones Act, 46 U.S.C.A. § 688.

3. Seamen key 295.3)

Fact that shipfitter employed by subsidiary corporation

repaired vessel and barge while they were moored to a floating

drydock did not bar recovery against subsidiary and its parent

corporation under the Jones Act if shipfitter met requirements

of being a crew member of vessel and barge or a fleet which con-

tained them. Jones Act, 46 U.S.C.A. § 688.

4. Seamen key 2

Presence of vessel and barge in floating drydock for repairs

did not mean that they were not in navigation at time of shipfit-

ter’s injuries so as to preclude him from being a seaman under

the Jones Act absent evidence that vessel and barge were remov-

ed from service for a season or other substantial period of time

or were undergoing repairs of such a major character as to

amount to a withdrawal from navigation. Jones Act, 46

U.S.C.A. § 688.

5. Seaman key 2

’

The phrase ‘‘primarily in aid of navigation,’’ within rule for

determining whether an individual is a seaman under the Jones

Act, means that the duties of the individual must have con-

tributed to the vessel’s function or to the accomplishment of its

mission. Jones Act, 46 U.S.C.A. § 688.

See publication Words and Phrases for other judicial

constructions and definitions.

6. Seamen key 2

Although the throwing and securing of lines is normally a

seamen’s chore, one who occasionally engages in that task is not

necessarily a seaman. Jones Act, 46 U.S.C.A. § 688.

7. Seamen key 2

A maintenance worker need not be assigned to work on

operational vessels in order to satisfy permanency requirement

of **seamen’”’ test that an individual have a more or less perma-

nent connection with vessels or with a specific group or fleet of

vessels which contain them. Jones Act, 46 U.S.C.A. § 688.

8. Seamen key 295.16)

Whether shipfitter employed by subsidiary corporation was a

**seamen’’ for purposes of the Jones Act at time he sustained in-

— < oo

juries while repairing a vessel and barge moored to a floating

drydock because vessel and barge were in navigation when ship-

fitter was injured, because shipfitter was a repair or

maintenance worker who was directly connected with keeping

vessels in navigation or preparing them to retain navigational

capacity, and because shipfitter had a more or less permanent

connection with vessels or with a specific group or fleet of

vessels which contained them was question for jury in resolving

liability of subsidiary and its parent corporation to shipfitter

under the Jones Act. Jones Act, 46 U.S.C.A. § 688.

9. Appeal and Error key 216(1)

To save an objection to an instruction, it is incumbent upon a

party to tender a proper instruction, otherwise that objection is

waived.

10. Appeal and Error key 216(3)

Objection which was made by defendants to definition of

term ‘‘vessel’’ in instruction tendered by plaintiff in action

under the Jones Act tor injuries sustained while repairing a

vessel and barge moored to a floating drydock was waived

where defedants did not offer their own definition of a vessel

and did not offer a definitional instruction in their own brief.

Jones Act, 46 U.S.C.A. § 688.

11. Seamen key 29(5.17)

Instruction which was offered by plaintiff in action under the

Jones Act for injuries sustained while repairing a vessel and

barge moored to a floating drydock and which authorized jury

to find that plaintiff was a member of a crew of a vessel if his

employment was related to a vessel having a specific function or

mission and if plaintiff had a part in operation of vessel whether

it was related to vessel’s transportation or to performance of its

function was not erroneous as failing to require jury to find that

vessel upon which plaintiff was employed was in navigation and

— A-6 —

that plaintiff had a more or less permanent connection with

vessel. Jones Act, 46 U.S.C.A. § 688.

12. Seamen key 29(5.17)

An instruction containing the phrase ‘‘primarily in aid of

navigation’’ without defining the phrase as requiring that the

duties of a seaman for purposes of the Jones Act must have con-

tributed to the vessel’s function or to the accomplishment of its

mission would be unduly restrictive. Jones Act, 46 U.S.C.A. §

688.

13. Seamen key 29(5.17)

While it would be more preferable to require a jury to find

that a seaman for purposes of the Jones Act is more or less per-

manently attached to a vessel or group of vessels, the phrase

**more than an irregular connection with some vessel’’ is not im-

proper language in a Jones Act instruction. Jones Act, 46

U.S.C.A. § 688.

14. Seamen key 29(5.17)

Reference in instruction to a plaintiff as being a passenger be-

ing transported to a place of work did not dilute the require-

ment in a Jones Act case of the plaintiff’s connection with a

vessel and was mere surplusage. Jones Act, 46 U.S.C.A. § 688.

15. Appeal and Error key 232(3)

Defendants in Jones Act case, having failed to object to

plaintiff's instruction on ground that it did not use word

‘‘employer,’’ and having referred to themselves as ‘‘vessel

owners,’” could not be heard to complain that plaintiff’s in-

structions erroneously referred to defendants as vessel owners

or operators rather than as employers and that liability could

only attach to the employer-employee relationship under the

Jones Act. Jones Act, 46 U.S.C.A. § 688.

—

16. Appeal and Error key 231(9)

A claim that plaintiff’s instruction in Jones Act case was

defective in failing to specify vessel to which plaintiff claimed

permanent attachment was waived by failure of defendants to

object to instruction in trial court on that ground. Jones Act, 46

U.S.C.A. § 688.

17. Appeal and Error key 1067

Seamen key 29(5.17)

Failure to give an otherwise applicable pattern instruction in

Jones Act case on responsiblity of a corporation for the

negligent act or omission of an officer, employee, or other agent

of corporation was error, but since given instruction was neither

partial, misleading, or argumentative and, in fact, presented

identical proposition of law, error was not of a reversible

nature. S.H.A. ch. LIOA, €239(a); IPI 2d 50.11.

18. Seamen key 295.17)

Instructions On liability of third parties in Jones Act case was

not, given relatively ambiguous status of ownership of vessels

involved, erroneous on groud that there was no evidence that

applied when a third party was to blame for injury in case. IPI

2d 3.01, 12.04, 15.01, 50.11.

19. Appeal and Error key 302(1), 758.3(7)

That plaintiff's counsel in Jones Act case allegedly exhibited a

hostile tone toward a witness for defendants, made improper

remarks directed toward defense counsel, and engaged in im-

proper questioning and improper courtroom behavior was not a

basis for granting a mistrial in case where defendants did not

specify the remarks and questions they characterized as im-

proper, but merely listed several pages of record, and were even

less specific in their posttrial motion.

~ AB <x

Dunham, Boman & Leskera, East St. Louis, for defendants-

appellatns, cross-appellees; Howard Boman and Eric C. Young,

East St. Louis, of counsel.

William E. Brandt, William E. Brandt & Associates, Granite

City, and Goerge J. Moran, Sr., Callahan & Moran, Trenton,

for plaintiff-appellee, cross-appellant.

WELCH, Justice:

Plaintiff Patrick Berry was employed as a first class shipfitter

at facilities operated by subsidiaries of American Commercial

Barge Lines (ACBL) on the Mississippi River at Alton Illinois.

On November 29, 1973, he was working on an inclined metal

surface known as a slope sheet on barge vessel S-127 which had

been brought to ACBL’s floating drydock for repairs. While

assisting a welder in replacing a metal patch on tha tsurface, the

plaintiff was temporarily blinded by the flash from the arc of

the welder’s rod when the welder accidently struck an arc in

front of the plaintiff. He then lost his balance and attepted to

descend the slope sheet so that he would not fall, but his foot

became caught on a piece of metal called a scab, which is welded

temporarily onto metal surfaces to give repair workers more

secure footing. The plaintiff fell, injuring his left knee.

On December 10, 1973, the plaintiff again sustained injuries

to that knee. He was assigned to do repair work in the port side

shaft alley of the motor vessel R.W. Naye, which had also been

brought to the floating drydock. As he was heating shaft coupl-

ings with a rosebud torch, he slipped on grease which had ac-

cumulated on the floor of the shaft alley compartment.

The plaintiff brought suit in the circuit court of Madison

County against ACBL and two of its subsidiaries, Jeff Boat,

Inc. and Louisiana Dock Boat Co., Inc. (La. Dock) to recover

for his injuries. This action was based, inter alia, on general

principles of negligence and maritime law and on the Jones Act

(46 U.S.C. sec. 688) The case was submitted to the jury against

-— At —

ACBL and La. Dock under the Jones Act counts, and the jury

awarded the plaintiff $250,000 in damages against both defen-

dants. Judgment was entered upon that verdict. Defendants

ACBL and La. Dock appeal from that judgment against them,

and the plaintiff has brought a cross appeal in which he requests

that, if it is determined that he is not covered by the Jones Act

as a matter of law, then the court’s order dismissing his

maritime and negligence counts should be reversed.

The defendants present three assignments of error: (1) The

trial court should have directed verdicts in their favor because

the evidence introduced at trial fails to show that the plaintiff

was a ‘‘seaman.”’ (2) The court erred in giving certain instruc-

tions proffered by the plaintiff, and (3) the court should have

granted defendants’ motion for a mistrial, based upon the con-

duct of plaintiff’s counsel in examining a witness called by him

under Section 60 of the Civil Practice Act (Ill.Rev.Stat.1979, ch.

110, par. 60, now par. 2-1102, Code of Civil Procedure).

The first argument made by the defendants presents another

variation on the Jones Act ‘‘riddle,’’ as characterized by the

Fifth Circuit (Ardoin v. J. Ray McDermott and Co. (Sth

Cir.1981), 641 F.2d 277, reh. den., 646 F.2d 566, app. after re-

mand (1982), 684 F.2d 335; Offshore Co. v. Robison (Sth Cir.

1959), 266 F.2d 769), namely, ‘‘When is a maritime worker a

seaman?’’ More accurately, this case asks, ‘‘When is a jury

question presented concerning whether a shipfitter injured while

working on vessels on a floating drydock is a seaman?’’ The

solution to this ‘‘riddle’’ requires more ‘‘clues,’’ in the form of

the facts of this case.

The facilities at which the plaintiff was employed were

located on the Mississippi River at the foot of Plum Street in

Alton, Illinois. They consisted of office, machine and

mechanical barges, as well as two floating drydocks. The barges

were permanently secured to pylons by cables, and one would

obtain access to the barges through a walkway from shore. The

record indicates that none of the facilities at Alton were located

ashore.

— A-10 —

Although both floating drydocks could be moved from place

to place, neither had any motive power, and they would have to

be transported by a motor vessel. The drydocks were attached

to large steel arms by cables. A vessel needing repair would

move close to a drydock, or, if it were not self-propelled, it

would be brought to the drydock, generally by the ACBL motor

vessel Little Giant. The drydock would then be partially

submerged, allowing the vessel to enter, and raised again, the

vessel along with it.

The plaintiff was first hired by ACBL as a laborer and

deckhand on the Little Giant. In that capacity, he was required

to use lines and wires to attach the Little Giant to other vessels.

Eventually, the plaintiff was promoted to second class fitter,

and then again to first class fitter. As a fitter, he worked with

torches and sledge hammers to fit steel into place on vessels in

need of repair. However, he also continued to handle lines and

wires, even when he worked on the drydock, because the vessels

brought to che drydock had to be secured. The plaintiff recalled

that he usually operated lines adn wires about twice a day. Gary

Bidwell, who was with the plaintiff on the R.W. Naye on

December 10, 1973, and who had been employed by ACBL,

always as a first class welder, testified that when he was assigned

to work on a drydock, he would work with lines as the drydock

was raised or lowered.

The plaintiff did not sleep on board any vessel or other facili-

ty. He lived ashore, reported for work as scheduled and received

assignments to repair whatever motor vessels or barge vessels

were in need of repair. These assignments could require him to

work on a vessel in the drydock or on a vessel afloat in the

Mississippi. He could perform repairs on a vessel belonging to

ACBL or one of its subsidiaries, or on a vessel belonging to a

concern unconnected with ACBL. The La. Dock and Jeff Boat

Companies ‘‘provide the bulk of service’’ for ACBL and its

barge companies, according to ACBL’s vice-president and

general counsel, but their facilities are operated independently

— A-ll —

and thus do repair and fabrication work on non-ACBL vessels.

The R.W. Naye and the barge vessel S-127, on both of which

the plaintiff was injured, were owned and operated by ACBL or

subsidiaries. At the time of his injuries, the plaintiff was

employed by La. Dock, being the ACBL subsidiary concerned

with ship repair, and is paychecks reflected that ACBL acted as

the paying agent for La. Dock.

[1] Recovery under the 1920 amendment to the Merchant

Marine Act, commonly known as the Jones Act, is limited to

‘‘any seaman’’ suffering personal injury in the course of his

employment or to the personal representative of any seaman

who dies as a result of such injury. (46 U.S.C. sec. 688). The

provisions of the Act itself do not define the term ‘‘seaman,”’

although there are many decisions which purport to do so.

Because the question of whether an individual is a seaman for

purposes of the Jones Act depends upon the facts of the par-

ticular case and the activity in which he was engaged at the time

of the injury (Desper v. Starved Rock Ferry Co. (1952), 342

U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205, reh. den., 342 U.S. 934,

72 S.Ct. 374, 96 L.Ed. 695), it is only when the underlying facts

are undisputed and the record reveals no evidence from which

reasonable persons might draw conflicting inferences, that this

question should be decided as a matter of law. (Ardoin v. J. Ray

McDermott and Co.; Burns v. Anchor-Wate Co. (Sth Cir.

1972), 469 F.2d 730).

[2] In deciding whether a plaintiff’s status as a seaman

presented a jury question, the authorities under the Jones Act

have been virtually unanimous in applying the following three-

part test to various sets of facts: (1) that the plaintiff was injured

upon a vessel in navigation, (2) that the plaintiff was aboard

that vessel primarily to aid in navigation, and (3) that the plain-

tiff had a more or less permanent connection with that vessel or

with a specific group or fleet of vessels. (Abshire v. Seacoast

Products, Inc. (Sth Cir. 1982), 668 F.2d 832; Baker v. Pacific

Far East Lines, Inc. (N.D.Cal. 1978), 451 F.Supp. 84; Griffith

— A-12 —

v. Wheeling Pittsburgh Steel Corp. (3rd Cir. 1975), 521 F.2d 31,

cert. den. (1976), 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643;

Offshore Co. v. Robison). This test rests upon several unex-

plained definitions such as the terms ‘‘navigation’’ and ‘‘aid to

navigation.’’ But, in this case, it is the term ‘‘vessel’’ which the

defendants claim presents a threshold issue, resolution of which

in their favor as a matter of law would obviate applying the

three part test.

The plaintiff contends that the defendants presented their

case in the trial court under the theory that the R.W. Naye, the

barge S-127 and the floating drydock could be considered

‘*vessels’’ by the jury and thus they should be prevented from

denying their status as vessels to this court. However, in moving

for a directed verdict, the defendants raised the issue of whether

the plaintiff was not a seaman as a matter of law, and the defen-

dants are correct that the status of the drydock as a vessel is an

integral part of that question. Moreover, the defendants’ writ-

ten post-trial motion specifically argued that there was no

evidence to prove the existence of any vessel in navigation.

Thus, the theory that the floating drydock is not a vessel as a

matter of law is not a contention which was never presented to

the trial court.

Essentially, the defendants insist that the floating drydock

upon which the plaintiff worked was not a vessel as a matter of

law, and therefore, the plaintiff could not be a seaman. The

defendants accurately note that the Federal courts have

developed the rule that a floating drydock is not a vessel as a

matter of law when it is moored and in use as a drydock. (Nevel

v. Todd Shipyards Corp. (N.D.Cal.) 1978 Am. Maritime Cases

2230; Keller v. Dravo Corp. (Sth Cir. 1971), 441 F.2d 1239, cert.

den. (1972), 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665;

Chahoc v. Hunt Shipyard (Sth Cir. 1970), 431 F.2d 576, cert.

den. (1971), 401 U.S. 982, 91 S.Ct. 1198, 28 L.Ed.2d 333;

Atkins v. Greenville Shipbuilding Corp. (Sth Cir. 1969), 411

F.2d 279, cert. den. 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96;

— A-13 —

compare U.S. v. Moran Towing and Transportation Co. (4th

Cir. 1967), 374 F.2d 656, vacated on other grounds sub nom

U.S. v. Bethlehem Steel Co. (1968), 389 U.S. 575, 88 S.Ct. 689,

19 L.Ed.2d 775 (floating drydock under tow in navigable waters

held to be a vessel); Bernardo v. Bethlehem Steel Co. (2nd Cir.

1963), 314 F.2d 604 (Judgment entered on jury verdict in favor

of defendant and affirmed on appeal, thus status of floating

drydock as not a vessel as a matter of law, not presented); con-

tra, Rogosich v. Union Dry Dock and Repair Co. (3rd Cir.

1933), 67 F.2d 377). But this proposition is fatal to the

plaintiff’s claim only if the plaintiff does not contend to have

been attached to any other vessel or fleet of vessels. For exam-

ple, in Nevel, Chahoc and Arkins, it does not appear that the

drydock workers maintained that they were members of the

crew of the vessels they were repairing or of a fleet contining

those vessels. In Keller, the court held that the disabled vessel

upon which the plaintiff worked had been removed from

navigation, and thus could not support a claim of unseawor-

thiness. Similarly, in Cook v. Belden Concrete Products, Inc.

(Sth Cir. 1973), 472 F.2d 999, reh. den. 472 F.2d 1405, cert. den.

414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116, the stationary con-

struction platform on which the plaintiff was injured was held

to be indistinguishable from a floating drydock, and there was

no other vessel to which the plaintiff could be attached as a

seaman, because the plaintiff was working on an uncompleted

barge when he was injured. (See also Buna v. Pacific Far East

Line, Inc. (N.D.Cal. 1977), 441 F.Supp. 1360 (paint float upon

which plaintiff worked not a vessel, plaintiff had no more or

less permanent connection with vessel being painted)). Other

cases in which the plaintiff worked on a permanently attached

floating platform, but did not work on a vessel temporarily on

that platform, are of no assistance to the defendants. (Warkins

v. Pentizien, Inc. (Sth Cir. 1981), 660 F.2d 604, cert. den.

(1982), 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 467; Leonard

v. Exxon Corp. (Sth Cir. 1978), 581 F.2d 522, reh. den. 586 F.2d

842, cert. den. (1979), 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2a

— A-14 —

397; Blanchard v. Engine and Gas Compressor Services, Inc.

(Sth Cir. 1978), 575 F.2d 1140; Powers v. Bethlehem Steel Corp.

(Ist Cir. 1973), 477 F.2d 643, reh. den. 483 F.2d 963, cert. den.

414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106).

[3] More analogous to the facts at bar is Mietla v. Warner

Co. (E.D.Pa.1975), 387 F.Supp. 937. In that case, the plaintiff

was employed as a barge attendant, whose duties included keep-

ing loaded barges free of water, checking the towing gear and

looking for safety violations. He was assigned to maintain the

barges which tied up to Pier 55 or to a permanent floating dock

known as barge No. 4, both of which facilities the plaintiff con-

ceded were not vessels. Nonetheless, the district court held that

the plaintiff’s status as a seaman was for the jury to decide,

because the plaintiff could be considered to be a member of the

crew of the barges which he tended. Miet/a stands for the princi-

ple that a plaintiff who frequently works on a structure which is

not a vessel is not precluded from being a seaman, if, in his

employment he is assigned to vessels in navigation. In the pre-

sent case, this means that, if the plaintiff met the three re-

quirements of being a crew member of the R.W. Naye or the

S-127 or a fleet which contained them, the fact that he repaired

them while on a moored floating drydock does not deny him

recovery under the Jones Act. These three requirements must

now be examined in greater detail.

[4] (1) Were the R.W. Naye and the barge S-127 ‘‘vessels in

navigation ?’’ It is not contested that the motor vessel and the

barge are, in fact, vessels. Nor does their presence in the

drydock for repairs mean that they were not in navigation at the

time of the plaintiff’s injuries. (Bodden v. Coordinated Carib-

bean Transport, Inc. (Sth Cir. 1966), 369 F.2d 273; Keymon v.

Tennessee Towing Co. (6th Cir. 1961), 296 F.2d 785). The

defendants do not represent the Naye and the S-127 as having

been removed from service for a season or other substantial

period of time (Compare Garcia v. Universal Seafoods, Ltd.

(W.D.Wash. 1978), 459 F.Supp. 463; Desper v. Starved Rock

— A-15 —

Ferry Co.; Hawn v. American §S.§. Co. (2nd Cir. 1939), 107

F.2d 999 with Sweeney v. American STeamship Co. (6th Cir.

1974), 491 F.2d 1085) or as undergoing repairs of such a major

character as to amount to a withdrawal from navigation (Wix-

om v. Boland Marine and Manufacturing Co., Inc. (Sth Cir.

1980), 614 F.2d 956; See also Delome v. Union Barge Line Co.

(Sth Cir. 1971), 444 F.2d 225, cert. den. 404 U.S. 995, 92 S.Ct.

534, 30 L.Ed.2d 547). Therefore, the jury could properly deter-

mine that these vessels were in navigation when the plaintiff was

injured.

[5] (2) Was the plaintiff acting ‘‘primarily in aid of naviga-

tion’’ of those vessels at the time of his injuries? In keeping with

the remedial purposes of the Jones Act, the phrase ‘‘primarily in

aid of navigation’’ has been construed far beyond its natural

meaning to include such personnel as hairdressers (Mahramas v.

American Export Isbrandtsen Lines, Inc. (2nd Cir. 1973), 475

F.2d 165) and waitresses (Buford v. Cleveland and Buffalo

Steamship Co. (7th Cir. 1951), 192 F.2d 196), ‘‘as well as other

persons not subject to being tattooed like ordinary seamen.”’

(Perez v. Marine Transport Lines, Inc. (E.D.La. 1958), 160

F.Supp. 853, 855). All that is necessary is that the duties of the

plaintiff must have contributed to the vessel’s function or to the

accomplishment of its mission. (Baker v. Pacific Far East Lines,

Inc.; Wilkes v. Mississippi River Sand and Gravel Co. (6th Cir.

1953), 202 F.2d 383, cert. den. 346 U.S. 817, 74 S.Ct. 29, 98

L.Ed. 344).

[6] The defendants are correct that, in determining whether

the plaintiff acted primarily in aid of navigation as a fitter, his

assigned tasks as a deckhand on the Little Giant are not rele-

vant. (White v. Louisiana Menhaden Co., Inc. (E.D.La. 1980),

498 F.Supp. 126). It is also well accepted that, although the

throwing and securing of lines is normally a seaman’s chore, a

plaintiff who occasionally engages in that task is not necessarily

a seaman. (South Chicago Coal and Dock Co. v. Bassett (1940),

309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Salgado v. M.J.

— A-16 —

Rudolph Corp. (2nd Cir. 1975), 514 F.2d 750; Griffith v.

Wheeling Pittsburgh Steel Corp.) The significant question in the

second portion of the ‘‘seaman’’ test is therefore whether the

plaintiff, when performing the duties of a fitter, contributed to

the function of the vessels which were in drydock or to the ac-

complishment of their mission.

Other decisions have held that plaintiffs employed in various

repair capacities were primarily aiding in navigation. (Porche v.

Gulf Mississippi Marine Corp. (E.D.La. 1975), 390 F.Supp. 624

(plaintiff welded pipe to be laid from barge); Braniff v. Jackson

AVe.—Greina Ferry, Inc. (Sth Cir. 1960), 280 F.2d 523, reh.

den. (1961), 289 F.2d 939 (plaintiff employed as master

mechanic on ferries); Lukos v. Chesapeake and Ohio Railway

Co. (W.D.Mich. 1954), 120 F.Supp. 296 (plaintiff assigned

general cleaning and painting duties); Rogosich v. Union Dry

Dock and Repair Co. (plaintiff was carpenter on floating

drydock); contra, Specht v. Pittsburgh Coal Co. (W.D.Pa.

1975), 432 F.Supp. 717; Chapman v. M/G Transport Services,

Inc. (W.D.Pa. 1977), 432 F.Supp. 723). The results reached in

these cases comport with the broad reading which the courts

have given to the phrase ‘‘in aid of navigation.’’ In a strictly

logical sense, the work performed by a shipfitter or similar

repair worker is preparatory to, and is the first step towards

rendering a vessel ready again for navigation or preventing it

from being removed from navigation. It would be incongruous

to hold that such a worker, who has a direct connection with

making or keeping a vessel navigational, is not ‘‘primarily in aid

of navigation’’ as a matter of law, while allowing the jury to

determine that other seaside workers, whose connection with

navigation is indirect at best, are seamen. The proper rule,

derived from the authorities listed above, is that whether a

plaintiff acted ‘‘primarily in aid of navigation’’ at the time of

his injury is a jury question if the plaintiff was a repair or

maintenance worker who was directly connected with keeping a

vessel in navigation or preparing it to retain navigational capaci-

ty. As the plaintiff in this case met this criterion, resolution of

— Aci? —

the second part of the ‘‘seamen’’ test was properly left to the

jury.

(3) Did the plaintiff have a ‘‘more or less permanent connec-

tion’’ with the R.W. Naye and the barge S-127 or with a specific

group of fleet of vessels which contained them? This issue is the

heart of the defendants’ challenge to the court’s failure to direct

a verdict in their favor. The plaintiff does not argue that he had

any sort of permanent attachment to either the Naye or the

S-127, individually. nor does this record present facts to support

such a claim. Consequently, the issue posed by this branch of

the ‘‘seaman”’ test is if a jury question is presented concerning

whether the plaintiff was ‘‘more or less permanently

connected’’ with a fleet containing the Naye and the S-127. The

defendants contend that no such connection was established, as

a matter of law, and point to several decisions which they claim

are analogous to the facts at bar.

In Baker v. Pacific Far East Lines, Inc., the plaintiff served as

a replacement member of a shoregang, which was assigned to

cleaning, maintenance, painting and other duties on the defen-

dant’s vessels. Although approximately 90% of the plaintiff’s

employment time was spent upon barges and other vessels, he

‘‘rarely spent more than several consecutive hours aboard any

given vessel,’’ (451 F.Supp. 84, 88), and could not identify

which ships he cleaned or maintained on any given day, or even

the ships upon which he was injured. The district court held that

the plaintiff’s connection with any group of vessels was insuffi-

ciently permanent to justify a finding that he was a seaman, at

least in part because the defendant’s fleet consisted of between

500 and 1000 barges. (See also Buna v. Pacific Far East Line,

Inc., in which the plaintiff, also employed by the same defen-

dant as a shoregang worker, attested that his shoreside tasks in-

cluded, inter alia, moving furniture in the defendant’s office

building, painting stripes in the defendant’s parking lots and

performing maintenance in the defendant’s storerooms and of-

fice).

— A-18 — -

The plaintiffs or plaintiffs’ decedents in Bertrand v. Interna-

tional Mooring and Marine, Inc. (W.D.La. 1981), 517 F.Supp.

342, worked as members of an anchor-handling and mooring

crew, thereby performing classical mariner’s work. They were in-

jured in an auto accident in the course of their employment. As

members of the anchor-handling and mooring crew, they spent

between 90 and 100%. of their work hours aboard vessels, ready-

ing them for their employer to use them to work on offshore

drilling vessels. These men lived aboard the vessels for the dura-

tion of their assignments, but those assignments would range

from several hours to about seven days, the average assignment

lasting between four and five days. The court found that none

of these workers had any sort of permanent connection with a

specific group of vessels, and directed verdicts in their

employer’s favor. Yet, it was also noted in the opinion that the

employer did not own any vessels, and even if an independent

division of the defendant-employer did own five vessels, the

evidence revealed that one of the men had worked on one of

these vessels twice, while another had worked on one of them

only once.

Baker and Bertrand are examples of two categories of deci-

sions which are of little relevance to the facts at bar. The first of

these consists of those cases in which the plaintiff was truly a

*‘casual worker upon the water’’ (South Chicago Coal and

Dock Co. v. Bassett (1940), 309 U.S. 251, 260, 60 S.Ct. 544,

549, 84 L.Ed. 732, 738), by virtue of the amount of time the

plaintiff spent on land in the course of his employment, or the

nature of his duties while ashore. (Baker; Buna; White v. Loui-

siana Menhaden Co., Inc. (plaintiff, normally employed on

fishing vessel, was assigned to perform maintenance work at

defendant’s harbor facilities during four-month off season);

Fazio v. Lykes Bros. Steamship Co., Inc. (Sth Cir. 1978), 567

F.2d 301 (plaintiff, as member of shoregang, could work on no

vessel at all on any particular day); Rotolo v. Halliburton Co.

(Sth Cir. 1963), 317 F.2d 9, cert. den. 375 U.S. 852, 84 S.Ct.

111, 11 L.Ed.2d 79 (plaintiff and similar employees spent

— A-19 —

80-90% of work time as welders at base shop on land);

Thibodeaux v. J. Ray McDermott and Co. (Sth Cir. 1960), 276

F.2d 42 (plaintiff, as welder in defendant’s fabricating division,

customarily worked on vessels under construction, conversion

or outfitting)). The second category of cases includes those in

which the plaintiff had only a temporary conn tion with the

vessel upon which he was injured, and in addition, could not

identify a specific group of vessels to which he could claim per-

manent attachment. (Bertrand; Guidry v. Continental Oil Co.

(Sth Cir. 1981), 640 F.2d 523, cert. den. 454 U.S. 818, 102 S.Ct.

96, 70 L.Ed.2d 87; Richardson v. Norfolk Shipbuilding and

Drydock Corp. (E.D. Va. 1979), 479 F.Supp. 259, aff’d. (4th

Cir. 1980), 621 F.2d 633; Lotzman v. Oxyness Shipping Co.

(1978), 93 Misc.2d 461, 402 N.Y.S.2d 964; Ross v. Mobil Oil

Corp. (Sth Cir. 1973), 474 F.2d 989, cert. den. 414 U.S. 1012, 94

S.Ct. 378, 38 L.Ed.2d 250; Thomas v. Peterson Marine Service,

Inc. (Sth Cir. 1969), 411 F.2d 592, cert. den. (1970), 396 U.S.

1006, 90 S.Ct. 562, 24 L.Ed.2d 499). Some cases are, of course,

distinguishable from this one because they contain elements of

both of these categories.

The defendants do not specifically contest the distinctions

between the second group of decisions and the present case.

However, they question whether the plaintiff can be considered

as not ‘‘land-based.’’ Instead of defining a shore based worker

as one who spends a significant portion of his work time on land

or who undertakes tasks traditionally performed on land while

ashore, the defendants urge that a shore based worker is one

‘*who is not exposed to the hazards of the sea.’’ They note that

in other cases in which maintenance workers were properly

found to be more or less permanently connected with a fleet of

vessels, those vessels were operational when the plaintiff worked

on them, thereby exposing the workers to the hazards of the sea.

(Bazile v. Bisso Marine Co., Inc. (Sth Cir. 1979), 606 F.2d 101,

reh. den. (1980), 613 F.2d314, cert. den. 449 U.S. 829, 101 S.Ct.

94, 66 L.Ed.2d 33; Mietla v. Warner Co.; Braniff v. Jackson

Ave.—Gretna Ferry, Inc.) From this observation, the defen-

— A-20 —

dants conclude that the plaintiff, who worked on vessels which

were in and out of operation, and who spent much of his time

working on a floating drydock, is a shore based worker as a

matter of law.

[7] But, accepting defendants’ suggestion that a maintenance

worker must be assigned to work on operational vessels in order

to satisfy the ‘‘permanency’’ requirement of the ‘‘seamen’’ test

would be to read into that requirement a condition the case law

does not explicitly mandate. It would also lead to the applica-

tion of conflicting maxims under two different portions of the

**seamen’’ test, inasmuch as a vessel in drydock for repairs is a

vessel in navigation, even though, under the defendants’ theory,

a plaintiff who worked on a fleet containing that vessel could

not be permanently attached to that fleet. Moreover, the

amount of time a worker spends on land and the nature of his

duties while ashore are more accurate indices of whether a

worker is ‘‘land-based’’ than is the operational capacity of the

ship he is on when he is injured. Under these criteria, it cannot

be said that the plaintiff was ‘‘land-based’’ as a matter of law.

Furthermore, the plaintiff did not do all of his work while on

the drydock. He also repaired vessels afloat in the Mississippi,

and was thus ‘‘exposed to the hazards of the sea,”’ even if he

was not when he was injured.

Other cases mentioned by the defendants to justify entry of

directed verdicts in their favor are factually different from the

present case, even if they do not fall easily into either of the

categories of cases mentioned above. In Specht v. Pittsburgh

Coal Co., the plaintiff was injured while performing repair

work from scaffolding alongside the M/V D.J. Johnson. The

plaintiff did not claim to be permanently connected with the

Johnson, which was not owned by his employer, but he did

assert the existence of such a connection with the towboat M/V

Elizabeth. However, in a depostion taken two years after the ac-

cident, the plaintiff admitted that he had not been aboard the

M/V Elizabeth for the past three or four years. He also stated

— A-21 —

that his employment included work in a ship on shore as well as

assignments on board vessels. In Chapman v. M/G Transport

Services, Inc., decided by the same court which decided Specht,

the plaintiff was employed by the defendant as a welder for only

two weeks, and had he worked any longer, he would have had

to join the United Steelworkers of America. While upon one of

the defendant’s barges at the end of that period, he was injured.

The court found his connections with that vessel, as in Spechi,

to be temporary as a matter of law.

[8] A review of the facts in this case shows that the plaintiff,

contrary to many of the claimants in the decisions analyzed

above, spent all of his work time on board vessels, or on the

floating drydock, and none of his time ashore. It is not contend-

ed that his duties entailed anything other than the repair of

vessels or the securing of lines on the vessels to be repaired or on

the floating drydock. While the plaintiff serviced vessels in addi-

tion to those owned by ACBL or its subsidiaries, the record

does not indicate the frequency of such repairs, except for the

statement of ACBL’s vice-president and general counsel that

La. Dock and Jeff Boat provided the bulk of service for ACBL

and its barge companies. Moreover, the number of vessels in the

fleet to which the plaintiff insists he was attached, which also

**might have some bearing on a jury determination that he was

or was not a seaman’ (Miet/a v. Warner Co. (E.D.Pa. 1975),

387 F.Supp. 937, 939; see also Raker v. Pacific Far East Lines,

Inc.), is not apparent of record. Given this information, the per-

manency of the plaintiff’s connection to an ACBL fleet is in-

deed a close issue, yet it cannot be said that there is no evidence

from which reasonable jurors might draw conflicting inferences

concerning that question. Even marginal claims under the Jones

Act are properly left to the jury (Smith v. Massman Construc-

tion Co. (Sth Cir. 1979), 607 F.2d 87, 89), and therefore, the

nature of the plaintiff's connection with an ACBL fleet was cor-

rectly entrusted to their determination in this case. Because an

analysis of the three elements of being a Jones Act seaman

shows that the plaintiff did not fail to satisfy any of these

— A-22 —

elements as a matter of law, the defendants were not entitled to

directed verdicts in their favor.

The defendants’ second assignment of error consists of a

group of seven arguments pertaining to certain of the plaintiff's

instructions which were given to the jury. These arguments will

be addressed in the order presented in the defendants’ brief.

(1) The defendants challenge the accuracy of plaintiff’s in-

struction 19, which defines the term ‘‘vessel’’ as follows:

The primary meaning of the term ‘‘vessel’’ is that of any

watercraft or other contrivance used, or capable of being

used, as a means of transportation on water.

The term ‘‘vessel’’ also includes, however, various

special purpose craft (such as barges) which do not operate

as vehicles for transportation but rather serve as movable,

floating bases for stationary operations. If a structure is

buoyant and capable of being floated from one location to

another it may be found to be a vessel even though it may

have remained in one place for a long time and even

though there are no plans to move it in the foreseeable

future.

The defendants insist that this is an improper definition of a

vessel because it does not require the jury to consider ‘‘the pur-

pose for which the craft was constructed and the business in

which it is engaged.’’ (Cook v. Belden Concrete Products, Inc.

(Sth Cir. 1973), 472 F.2d 999, 1001, cert. den. 414 U.S. 868, 94

S.Ct. 175, 38 L.Ed.2d 116). They also view this instruction as

allowing the jury to consider as a vessel anything that floats.

The plaintiff argues that these objections were not preserved

for purposes of this appeal. He characterizes defendants’ objec-

tion to this instruction as only general in nature and therefore

insufficient to save for review the. defects listed above.

(Gasbarra v. St. James Hospital (1979), 85 Ill. App.3d 32, 40

Ill.Dec. 538, 406 N.E.2d 544; Mathis v. Burlington Northern,

— A-23 —

Inc. (1978), 67 Ill.App.3d 1009, 24 Ill.Dec. 639, 385 N.E.2d

780; 87 Ill.2d R. 239(b)). At the instruction conference, defen-

dants’ counsel stated that he objected to plaintiff's instruction

19 because it did not properly state the law, and because the

evidence did not show that the barge, drydock or the R.W.

Naye fit plaintiff's definition. He also disagreed with the clause,

‘‘which do not operate as vehicles for transportation but rather

serve as movable, floating bases for stationary operations.’’

[9,10] Whether these objections are specific enough to

preserve the defendants’ challenges to plaintiff's instruction 19,

those challenges must be deemed waived for another reason. To

save an objection to an instruction, it is incumbent upon a party

to tender a proper instruction, otherwise that objection is waiv-

ed. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill.2d 379, 24

Ill. Dec. 523, 385 N.E.2d 664; Department of Public Works and

Buildings v. Klehm (1973), 56 Ull.2d 121, 306 N.E.2d 1, cert.

den. (1974), 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667; 87

Ill.2d R. 366(b)(2)(i)). The record does not indicate that the

defendants offered their own definition of a vessel, nor does

their brief contain such a definitional instruction. Because a

trial court has, in general, no duty to give instructions which

were not requested by the parties (Chicago Land Clearance

Commission v. Darrow (1957), 12 Ill.2d 365, 146 N.E.2d 1; City

of Chicago v. Baird (1971), 132 Ill.App.2d 644, 270 N.E.2d 259,

aff’d (1972), 52 Ill.2d 512, 288 N.E.2d 110), defendants’ objec-

tions to plaintiff’s instruction 19 have been waived.

(2) The defendants next maintain that plaintiff’s instruction

21 inaccurately defined the term ‘‘member of a crew,’’ which

phrase is synonymous with the Jones Act requirement of being a

seaman. That instruction read as follows:

The proposition of whether the plaintiff was a member

of acrew of a vessel at the time of the accident is a question

of fact which you must determine, just as you determine all

questions of fact in the case.

— A-2t

You may find that the plaintiff was a member of a crew

of a vessel if you find: (a) that the plaintiff’s employment

related to a vessel having a specific function (or mission);

and, (b) that the plaintiff had a part in the operations of

the vessel, whether it be related to the vessel’s transporta-

tion or to the performance of its function (or mission).

It is not essential that the plaintiff be assigned to any

particular vessel. He may have duties which require him to

serve on numerous vessels, and you may still find that he is

a member of the crew of the particular vessel involved in

this case.

One whose employment takes him on to a vessel may be

found to be a member of the crew, even though his stay

aboard is expected to last only for a very short period.

You may find that the defendant [sic] is a member of the

crew of a vessel even though the vessel has not moved on

the water at any time during the plaintiff's employment,

and even though there are no plans to move it at any time

in the foreseeable future.

There must, however, be more than an irregular connec-

tion between the plaintiff and some vessel in order that he

may be found to be a member of the crew. If the plaintiff

were a mere passenger being transported to a place of work

which is not connected with a vessel he is not a member of

the crew of the vessel in which he is being transported, even

though his employer owned that vessel and was transpor-

ting the plaintiff for its own purposes.

At the instruction conference, defendants’ counsel objected to

the instruction as being an inaccurate statement of the law. He

offered instead an instruction, defendants’ number 12, which

stated that ‘‘[a] person is a crewman if: (1) he is more or less per-

manently attached to a vessel or fleet of vessels; (2) the vessels

are in navigation; and (3) his primary and natural duty is to

serve as an aid to navigation.’’ Thus, contrary to the plaintiff’s

assertions, the defendants have preserved their objections to

plaintiff’s instruction 21.

A short explanation concerning the source of this instruction

is necessary. Unlike the courts in this state, the Federal courts

do not have a set of standardized instructions comparable to the

Illinois Pattern Instructions. Nor, due to the relative infrequen-

cy of Jones Act cases in the courts of this State, do the Illinois

pattern Instructions contain jury instructions on issues peculiar

to the Jones Act. As a result, attorneys who try Jones Act cases

must rely upon unofficial compilations of jury instructions, ex-

‘racted by scholars from relevant cases. One of the most widely

used of these sets is Federal Jury Practice and Instructions, 2d

Ed.1970, (F.J.P.1.) by Edward Devitt and Charles Blackmar.

Piaintiff’s instruction 21 is a verbatim transcription of the

definition of ‘‘member of a crew’’ found in Section 96.03 of

F.J.P.I., even to the erroneous reference to ‘‘defendant’’ in-

stead of ‘‘plaintiff’’ in the fourth paragraph.

{11} The defendants claim that plaintiff’s instruction 21 does

not require the jury to find that (1) the vessel upon which the

plaintiff was employed was in navigation, and (2) that he had a

more or less permanent connection with the vessel. They also

argue that the last paragraph only requires the jury to find that

the plaintiff was associated with some vessel for some time, in-

stead of having a permanent connection with a vessel, unless

they found him to be a passenger.

It has been stated that reliance on general compilations of

jury instructions, such as F.J.P.1., is not without dangers,

because no authors can have a comprehensive knowledge of all

fields of law upon which juries may be instructed. (Peymann v.

Perini Corp. (\st Cir. 1974), 507 F.2d 1318, 1324n. 2, cert. den.

(1975), 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780). Dif-

ficulties may also be presented in the use of quotations from

published opinions which were hever intended to be quoted

directly as jury instructions. (Bernardo v. Bethlehem Steel Co.

— A-26 —

(2nd Cir. 1963), 314 F.2d 604, 609). However, the reported deci-

sions show that plaintiff’s instruction 21 does in fact contain an

accurate statement of the law, and that it is defendants’ instruc-

tion 12 which is misleading.

{12] As noted above, the phrases ‘‘in navigation’’ and

**primarily in aid of navigation’’ have been construed beyond

their natural or literal meanings. Thus, defendants’ tendered in-

struction 12, which submits those words to the jury without

defining them, would be unduly restrictive. It has been said

that, in instructing a jury under the Jones Act, a court must

disabuse the jurors of the notion that a seaman is necessarily ‘‘a

man with a tattoo, who walks with a rolling gait, wears bell-

bottom trousers and handles, reefs and steers the vessel.’’

(Marine Drilling Co. vy. Autin (Sth Cir. 1966), 363 F.2d 579,

580). Defendants’ instruction 12 fails to accomplish this task.

(Offshore Co. v. Robison).

Instead, the phrase ‘‘primarily in aid of navigation’’ has

been defined as requiring that the duties of the plaintiff must

have contributed to the vessel’s function or to the accomplish-

ment of its mission. (Baker v. Pacific Far East Lines, Inc.;

Wilkes v. Mississippi River Sand and Gravel Co.) Jury instruc-

tions which have been worded in accordance with that defini-

tion have been consistently approved by reviewing courts.

(Willis v. Titan Contractors Corp. (Tex.App. 1981), 625

S.W.2d 69, writ of error refused; Marine Drilling Co. v. Autin;

Williamson v. Daspit Bros. Marine Divers, Inc. (Sth cir. 1964),

337 F.2d 337; Tipton v. Socony Mobil Oil Co. (Sth Cir. 1963);

315 F.2d 660, rev’d on other grounds, 375 U.S. 34, 84S.Ct. 1,

11 L.Ed.2d 4, reh. den. 375 U.S. 936, 84 S.Ct. 328, 11 L.Ed.2d

268). Also, the Committee on Pattern Jury Instructions of the

Fifth Circuit’s District Judges Association has incorporated this

language into its recommended Jones Act instruction. (commit-

tee on Pattern Jury Instructions, Dist. Judges Assoc., Fifth

Cir., Pattern Jury Instructions (Civil Cases), Federal Claims In-

struction 7A—Jones Act—Unseaworthiness (1980) (hereafter,

Fifth Cir. Instruction 7A)). The defendants’ objections to the

second paragraph of plaintiff’s instruction 21 are not well

taken, for that paragraph adequately explains the requirement

that the plaintiff have been aboard a vessel primarily to aid in

navigation.

[13,14] Nor is this instruction’s definition of the ‘‘permanent

attachment’’ requirement reversible error. While it would have

been preferable for the court to require the jury to find that the

plaintiff was more or less permanently attached to a vessel or

group of vessels or that he performed a substantial part of his

work aboard that vessel or group of vessels, in those words

(Willis v. Titan Contractors Corp.; Marine Drilling Co. v.

Autin; Williamson v. Daspit Bros. Marine Divers, Inc.; Tipton

v. Socony Mobil Oil Co.; Fifth Cir. Instruction 7A; see also

Arundel Corp. v. Jasper (1959), 219 Md. 519, 150 A.2d 415) the

phrase ‘‘more than an irregular connection with some vessel’’ is

not improper language in a Jones Act instruction. (Stafford v.

Perini Corp. (\st Cir. 1973), 475 F.2d 507, 510, 511). Addi-

tionally, the reference to a passenger being transported to a

place of work does not dilute the requirement of the plaintiff's

connection with a vessel, and appears to be mere surplusage

under the facts of this case.

[15] (3) The defendants further argue that plaintiff’s instruc-

tions 13 and 20B erroneously referred to the defendants as vessel

owners or operators rather than employers, and contend that it

is only the employer-employee relationship to which Jones Act

liability may attach. However, at the instruction conference,

defendants’ counsel did not object to plaintiff’s instruction 13

on the ground that it did not use the word ‘‘employer.’’

Moreover, defendants’ instruction 6A, which was offered as an

alternative to plaintiff’s instruction 20B, also referred to the

defendants as ‘‘vessel owners.’ Consequently, the defendants

will not be heard to complain of this language in these instruc-

tions.

— A-28 —

[16] (4) It is also asserted that plaintiff’s instruction 18A was

defective in that it did not specify which vessel to which the

plaintiff claimed permanent attachment. The record of the in-

struction conference does not reflect that this instruction was

objected to because of that omission, and this argument has

also been waived.

(5) The defendants claim that the first three paragraphs of

plaintiff’s instruction 17A duplicated plaintiff's instruction 16A

in its entirety. This objection was not made at the instruction

conference, and has therefore not been preserved for purposes

of this appeal.

(6) The court gave plaintiff’s instruction 12A, which is from

Section 80.16 of F.J.P.1. It read as follows:

Since a corporation can act only through its officers or

employees, or other agents, the burden is on the plaintiff

to establish, by a preponderance of the evidence in the

case, that the negligence of one or more officers, or

employees, or agents, of one or more of the defendants

(other than the plaintiff) was a proximate cause of any in-

juries and consequent damages sustained by the plaintiff.

Any negligent act or omission’ of an officer, or

employee, or other agent, of a corporation, in the perfor-

mance of his or her duties, is held in law to be the

negligence of the corporation.

The defendants objected to this instruction, as they do in this

court, because there is an adequate instruction in Illinois Pat-

tern Instructions. (IPI). They offered as an alternative defen-

dants’ instruction 8, from IPI 50.11, which stated, ‘‘[t}he defen-

dants are corporations and can act only through their officers

and employees. Any act or omission of an officer or employee

within the scope of his employment is the action or omission of

the defendant corporations.”’

Supreme Court Rule 239(a) provides, in general, that

whenever an Illinois Pattern Instruction contains an instruction

applicable to the case, and the court determines that the jury

should be instructed on that issue, ‘‘the IPI instruction shall be

used, unless the court determines that it does not accurately

state the law.’’ (87 Ill.2d R. 239(a)). It is not suggested that IPI

50.11 was on a subject upon which the jury should not have

been instructed, that it was inaccurate, or that F.J.P.1. 80.16 ws

necessary to ‘‘amplify or clarify’’ IPI 50.11. (Lay v. Knapp

(1981), 93 Ill.App.3d 855, 49 Ill. Dec. 272, 417 N.E.2d 1099).

Therefore, IPI 50.11 should have been given. It should be noted

that plaintiff's instruction 12, which was approved by the court

before it was withdrawn by the plaintiff, was a modified form

of IPI 50.1!.

{17] However, a violation of Supreme Court Rule 239(a) is

not automatically reversible error. (Law v. Central Illinois

Public Service Co. (1980), 86 Ill.App.3d 701, 41 Ill.Dec. 728,

408 N.E.2d 74; Hitt v. Langel (1968), 93 Ill.App.2d 386, 236

N.E.2d 118). The defendants do not contend that F.J.P.1. 80.16

is partial, misleading or argumentative. (Seibert v. Grana

(1968), 102 Ill.App.2d 283, 243 N.E.2d 538). In fact, both

F.J.P.1. 80.16 and IPI 50.11 present the identical proposition of

law that a corporation is responsible for the acts of its

employees undertaken within the scope of their employment,

even if that proposition is discussed in slightly different

language. The only significant distinction between the two in-

structions is that F.J.P.1. 80.16 refers specifically to the

negligence of the employees of a corporation, while IPI 50.11

refers in more general terms to ‘‘any act or omission’’ of those

employees. It is difficult to envision any prejudice which could

have accrued to the defendants from the erroneous giving of

plaintiff’s instruction 12A.

(7) The defendnats’ final instructional issue is somewhat dif-

ficult to understand. They argue that the court erred in giving

**instructions nos. 9 and 10,’’ but the instructions reproduced in

— A-30 —

their brief as objectionable are plaintiff’s instruction 9 and

defendants’ instruction 10. Yet, even if it is assumed that it is

plaintiff's instruction 9 and 10 with which defendants take

issue, it is also unclear what instruction they supposedly

tendered as an alternative. They contend that they ‘‘offered an

adequate instruction on the matter, IPI 3.01,’’ but IPI 3.01 is

on the impeachment of a witness by prior inconsistent statement

or conduct, which was not an issue in this case, and the instruc-

tion reproduced in the brief as IPI 3.01 is actually the first

sentence of plaintiff’s instruction 10, which is IPI 15.01.

{18] The defendants insist that the instructions 9 and 10

(presumably plaintiff’s instructions 9 and 10, being IPI 12.04

and 15.01) ‘‘were submitted to the jury though there was no

evidence that implied that a third party, not as [sic] party to the

Suit, was to blame for the injury to the plaintiff.’ However,

even though it has been held that this combination of instruc-

tions should not be given unless there is some evidence that

something other than the negligence of the defendant prox-

imately caused the plaintiff’s injuries (Notes on use to IPI 12.04

and 15.01; Perry v. Chicago and North Western Transportation

Co. (1977), 54 Ill.App.3d 82, 11 Ill.Dec. 701, 369 N.E.2d 155),

this does not appear to have been the position taken by defen-

dants’ counsel in objecting to plaintiff’s instruction 9 at trial.

He averred that ‘‘there is evidence in the case that the vessels in-

volved were not owned by American Commercial Barge Lines,

that it [sic] was owned by others; that the condition of the vessel

itself might have been the proximate cause of the alleged injury

to the plaintiff, and that the jury could so find.’’ This statement

is an accurate assessment of some of the evidence presented at

trial, especially the testimony of ACBL’s parent company,

American Commercial Lines, Inc., which was not a party to the

suit. Under the relatively ambiguous status of the ownership of

the vessels involved, no error was committed in the giving of

these instructions.

— A-31 —

{19] The defendants’ last assignment of error is that the court

should have declared a mistrial during plaintiff's examination

of Michael Sheehan, ACBL’s manager of training and safety. In

their brief, defendants contend that plaintiff's counsel ‘‘ex-

hibited hostile tone’’ toward that witness and defense counsel,

‘*made other improper remarks’’ directed toward defense

counsel, and also ‘‘engaged in improper questioning and im-

proper courtroom behavior.’’ They do not specify the remarks

and questions characterized as improper, but merely list several

pages of the record. Their post-trial motion was even less

specific, contending only that ‘‘the court erred in allowing

plaintiff's counsel to ask unreasonably argumentative questions

and to engage in other prejudical conduct by way of his own

Statements and comments during the testimony of Michael

Sheehan.’’ While it may be questionable whether defendants’

allegations are specific enough to preserve this alleged error for

purposes of this appeal, a review of the pages of the record on

which defendants find objectionable material fails to reveal

grounds for reversal.

For the reasons presented above, the judgment of the circuit

court of Madison County is affirmed in its entirety.

AFFIRMED.

WHITE, J., concurs.

KASSERMAN, Judge, dissenting:

_ It is my opinion that the trial court erred in giving plaintiff's

Instruction No. 21; therefore, | must respectfully dissent.

' Justice White was assigned to the panel on rehearing in place of

Justice Scholz who retired from the bench on Dec. 6, 1982.

so

The majority in its opinion recognizes that it is essential to a

proper determination of the question of whether plaintiff was

entitled to maintain this action under the Jones Act that the jury

be accurately instructed as to the proper definition of the words

*‘seaman’’ and ‘‘member of the crew.”’ It is my opinion that

plaintiff’s Instruction No. 21 fails in this respect; therefore, the

giving of such instruction constituted reversible error.

The authority cited as authorizing plaintiff's Instruction No.

21 was Federal Jury Practice and Instructions, a publication

authored by Devitt & Blackmar (Section 96.-03); however, an

examination of this publication indicates that it is a compilation

of statements made in various cases in the federal courts, S/ar-

ton v. Martin K. Eby Construction Co., Inc. (8th Cir. 1974),

506 F.2d 505; Braniff v. Jackson Ave.-Gretna Ferry, Inc. (Sth

Cir. 1960), 280 F.2d 523; Stanley v. Guy Scroggins Construction

Co. (Sth Cir. 1961), 297 F.2d 374; Senko v. La Crosse Dredging

Corp. (1957), 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404; and

Texas Co. v. Savoie (Sth Cir. 1957), 240 F.2d 674. It is notewor-

thy that none of the quoted statements were given in the process

of instructing the jury but were statements of law recited in the

courts’ decisions. While the quoted portions of the various

Statements were proper statements of the law, they do not pur-

port to be the basis for an instruction. Further, not all of the

elements contained in plaintiff’s Instruction No. 21 are based on

direct quotes from these cases.

The perils resulting from a court relying on compilations such

as Federal Jury Practice and Instructions are best stated in

Peymann v. Perini Corp. (ist Cir. 1974), 507 F.2d 1318, in

which the court in a footnote stated:

**We have frequently expressed our apprehensions with

respect to general compilations of jury instructions. See,

e.g., McMillen v. United States, Cir., 1967, 386 F.2d 29, at

32. They are dangerous because no authors, however

erudite, can have a comprehensive substantive background

— A-33 —

in all fields. In § 93.05 of Devitt & Blackmar there is a sug-

gested special interrogatory, supposedly, (but, on in-

vestigation not), supported by authority, that would be jet-

tisoned by any admiralty lawyer. * * *’’ 507 F.2d 1318,

1324 n. 2.

Defendant's Instruction No. 12, which was refused by the

court, stated:

‘*A person is a crewman if: (1) he is more or less per-

manently attached to a vessel or fleet of vessels; (2) the

vessels are in navigation; and (3) his primary and natural

duty is to serve as an aid to navigation.”’

Defendant’s authority for such instruction was Richardson v.

Norfolk Shipbuilding and Drydock Corp. (1979), 479 F.Supp.

259, a United States District Court decision based on the deci-

sions in Whittington v. Sewer Construction Co. (4th Cir. 1976),

541 F.2d 427 and South Chicago Coal and Dock Co. v. Bassett

(1940), 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732.

In Ardoin v. J. Ray McDermott and Co. (Sth Cir. 1981), 641

F.2d 277, the Circuit Court of Appeals for the Fifth Circuit ad-

dressed this issue and stated:

‘**In McKie v. Diamond Marine Co., 204 F.2d 132 (Sth

Cir. 1953), we set forth a definition of the phrase ‘member

of the crew’ which, although restated and refined since,

still articulates the basic compass of the term ‘seaman’ as

used in the Jones Act. [The McKie court stated:]

‘The essential and decisive elements of the definition

of a ‘‘Member of a crew”’ are that the ship be in

navigation; that there be a more or less permanent

connection with the ship; and that the worker be

aboard primarily to aid in navigation.’

204 F.2d at 136. This definition has been our guide as we

have attempted to resolve numerous riddles concerning the

— A-34 —

Status Of various types of ambiguous-amphibious workers

involved in the offshore petroleum industry. See Offshore

Co. v. Robison, 266 F.2d 769 (Sth Cir. 1959) (‘When is a

roughneck a seaman?). In this case the riddle is revived in

the form of the question ‘When is a structural welder a

seaman?’ ’’ 641 F.2d 277, 280.

It is my conclusion that plaintiff’s Instruction No. 21 fails to

set forth the requirement that the ship be in navigation and fails

to fully set forth the essential elements of ‘‘seaman’”’ as set forth

in Ardoin. Further, it accentuates matters which are not rele-

vant to the instant case. Therefore, I am of the opinion that

plaintiff's Instruction No. 21 should have been refused by the

trial court and defendants’ Instruction No. 12 should have been

given.

For the foregoing reasons, I would reverse the judgment of

the trial court and remand for new trial.