Amicus Curiae Brief — Chandris, Inc. v. Latsis

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In The

Supreme Court of the United

October Term, 1994

CHANDRIS INC., CHANDRIS, S.A. and FOURTH

TRANSOCEANIC SHIPPING CO., LTD.,

Petitioners,

OFFICE GF THE @LaRA

against

ANTONIOS LATSIS,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF OF UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

KatHy L. KRIEGER

General Counsel

United Brotherhood of Carpenters

and Joiners of America

101 Constitution Ave., N.W.

Washington, D.C. 20001

(202) 543-5724

JoHN R. HittsMAN

Counsel of Record

McGuinn, HILitsMAN & PALEFSKY

0535 Pacific Avenue

San Francisco, California 94133

(415) 421-9292

Attorneys for the

United Brotherhood of Carpenters

and Joiners of America

QUESTION PRESENTED

What employment-related connection to a vessel in

navigation is necessary for a maritime worker to qualify

as a seaman under the Jones Act, 46 U.S.C. § 688?

TABLE OF CONTENTS

Page

QUESTION PRESENTED......................000-.

TABLE OF AUTHORITIES......................-.. iii

INTEREST OF THE AMICUS CURIAE............. |

SUMMARY OF ARGUMENT.....................-. 2

Ca \. 8

| THE INQUIRY INTO SEAMEN STATUS IS

FACT-SPECIFIC AND TURNS ON THE

NATURE OF THE VESSEL AND THE PLAIN-

TIFF’S PRECISE RELATIONSHIP TO IT....... 8

Il THE TERM “VESSEL IN NAVIGATION”

SHOULD BE INTERPRETED BROADLY, IN

KEEPING WITH THE JONES ACT’S REMEDIAL

PURPOSE AND LIBERAL HISTORY, AND

SHOULD NOT BE CONSTRAINED BY THE

PROLIX “FLOATING WORK PLATFORM DOC-

TRINE” OR ANY OF ITS OFFSPRING ........ 10

lil THE “PERMANENT” OR “SUBSTANTIAL CON-

NECTION” REQUIREMENT MUST BE

RETOOLED IN THE WAKE OF WILANDER TO

PROTECT ANYONE INJURED IN THE COURSE

GO & TPG +0 210020000scensnssebennenens 14

1 Where, as Here, pay Aemsaangy An, ga

a Vessel during , Seaman Status Need

Not Be Determined Wi the Context of His or

Her Entire ty 9992 98eRR TERRE EESONS 15

2 The Seaman Status of Traditional Mariners

Should be Determined Solely from Their

Assignment at the Moment of the Injury ... 17

IV SEAMAN’S STATUS SHOULD NOT BE LIM-

ITED TO THOSE WHO VOYAGE ON THE

SEES GD» 000000001 sen epeengennessnne 22

SED 0000025 000000000090000R000n EET 23

TABLE OF AUTHORITIES

Page(s)

Feverat Cases

Ashley v. Epic Divers, Inc., 818 F. Supp. 172 (E.D.

TE PE Meecha cpcadeeseecdcdecesoccseesd 6, 17

Bach v. Trident Steamship Co., Inc., 920 F.2d 322 (5th

RC eh GE 6G dude ccdcccesdccvescees 5, 14, 17, 18

Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th

DP MEG sii cwenbevcedcicececcoveces 5, 16, 17, 18

Bernard v. Binnings Const. Co., 741 F.2d 824 (5th

DE SURsAGU Gd etesdcctcesececeedsccs 10, 11, 13

Bertrand v. International Mooring & Marine, Inc.,

700 F.2d 240 (Sth Cir. 1983). ............ cece eeeeee 16

Braniff v. Jackson Avenue Gretna Ferry, Inc., 280 F.2d

i Mss edcdcewccecesececceess 16, 18, 21

Brunet v. Boh Brothers Construction Co., 715 F.2d

EET PPTL EEPEETETEE ELE 11

Buna v. Pacific Far East Lines, Inc., 441 F. Supp. 84

arta ksvetedveddctetecsecvccecss 16

Chauvin v. Sanford Offshore Salvage, Inc., 868 F.2d

seh acerecedestcsceovcccccec: 16

Clark v. Solomon Nav. Co., Ltd., 631 F. Supp. 1273

i itedeeccccccodesvevecccenccccess 6

Cooley v. Board of Wardens, 53 U.S. (12 How.) 299

Tere re eeeéeeservecerececcococcccecccs 7

Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367

EELS SLE LESII SS POET E PET ETT OLE ETT ET 13

DiGiovanni v. Traylor Brothers, Inc, 959 F.2d 1119

Esse heebecevoccecceseseccecoces 12, 13

TABLE OF AUTHORITIES - Continued

Page(s)

Director, OWCP v. Perini North River Associate, 459

US. BBS (19GB)... cccccccccccvcccccccsesaccccccees 2

Ducote v. V. Keeler & Co. Inc., 953 F.2d 1000 (5th

GO BE A ve dshe cecsivteccvtsbbcpansesstetuucases 10

Ellender v. Kiva Const. & Engineering, Inc., 909 F.2d

GE Ge Gah Fhe cvccccccndvesccsccaniutess 10, 11

Etu v. Fairleigh Dickinson University of the West

Indies, 635 F. Supp. 290 (D.Vir.Is. 1986)............. 6

Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 220

i Pn mn. 6 GNads ac 640606 tekbaaceeeenees 6, 15

Gaspard v. Taylor Diving & Salvage Co., Inc., 649

Fee ree Cee GO FO av once c ccdecevicadscsaneiess 6

Grimes v. Raymond Concrete Pile Co., 356 U.S. 252

GR od enkne ctacvcesccactescsudbunvathedesunes 2, 21

Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir.

Ge cn rscptccideccescocsncdeceveusoneenss 14, 16, 18

Guidry v. Continental Oil Co., 640 F.2d 529 (Sth Cir

GR bb cdedcccascnccncngecssauonecnannenpeseas$<s 14

Harwood v. Partredereit AF, 944 F.2d 1187 (4th Cir

SO iiknkcccngsc ns dé tn cdegucgsnncenssantumnbene t 6, 17

Hatch v. Durocher Dock & Dredge, Inc., 33 F.3d 545

CBr Che, MD oct cccccccsccccuséavecsedocoesenes 12

Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (Sth

GO. FOUOP cca vidccevcecueccdess 06s svauntds dents 16, 18

Hurst v. Pilings & Structures, Inc., 896 F.2d 504

thot: | errr rr rei ie 10

TABLE OF AUTHORITIES - Continued

Page(s)

Johnson v. John F. Beasley Construction Co., 742 F.2d

Gee es PPR oc00 ocences civcnnetdec tees cian 3

Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir.

PRN S46 pc cdecwsnstcdbbekeee6acdiddacdededeudcede 11

Jones v. Mississippi River Grain Elevator Co., 703

Pe Bw Goad Ge GE ccc ccccccccvcvccccvcces 16, 18

Kathriner v. Unisea, Inc., 975 F.2d 657 (9th Cir.

PO 6h 0 bd cdktcdde dbbheboseetanducsetdiedesese 10, 12

Kernan v. American Dredging Co., 355 U.S. 426, 78 S.

Gs GEE Cb kre Recdicocccétssesevcciscscocces 21

Kjar v. American Divers, Inc., 1994 A.M.C. 522

te: DE 0% blind Hoes bec nhnnd'sinconscts cee 7, 19

Kopcezynski v. The JACQUELINE, 742 F.2d 555 (9th

Ge WD Waddds cvededdvotesawekedes cddadsves cues 7

Lake Country Estates, Inc. v. Tahoe Reg. Plan., 440

PTT Te ee Tee 9

Latsis v. Chandris, Inc., 20 F.3d 45 (2d. Cir. 1994) ..... 8

Legros v. Panther Service Group, Inc., 863 F.2d 345

i sé - iv ees ike «deat bee eheenavabads es 16

Liverette v. N.L. Sperry Sun, Inc., 831 F.2d 554 (5th

Gee SE eGo de -Ucbcoctececesceadeupenneeeaieesia 16

Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th

Sie SL 66655 Gotecebs anacexdosestdnniean 5, 16, 17

Lormand v. Superior Oil Co., 845 F.2d 536 (5th Cir.

aida poise chovavecesetcdusensceninauommmel 16, 17

McDermoit International, Inc. v. Wilander, 498 U.S.

— & TTT ee passim

TABLE OF AUTHORITIES - Continued

Page(s)

McKinley v. Allalaskan Seafoods, Inc., 980 F.2d 567

Ee te Fh nn kv cuss scenscecovceseesesenedss 14, 16

New v. Associated Painting Services, Inc., 863 F.2d

ee ee OA PE 6 aS weccessvbnnucceneeenceseeve 16

Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959)

er ES Pee ei ey Pe eS Pee 5, 13, 16, 21, 23

Petersen v. Chesapeake & Ohio Railway Co., 784 F.2d

Pe Ne I bbe icanccdesisvdaebectsessccaens 4

Pickle v. International Oilfield, 791 F.2d 1237 (5th

ra i Oe ele antes 6

Procunier v. Navarette, 434 U.S. 535 (1978) ............ y

Ramos v. Universal Dredging Corp., 547 F. Supp. 661

a: ME ce 6.cin v0n-00505600d66650n0 604000008 21

Reeves v. Mobile Dredging & Pumping Co., Inc., 26

Se EE dc nccecdcdcasceccssoscosecs 4

Ringering v. Compania Maritima De-La-Mancha, 670

Pe EE Ge Ge Ge BOD cevccccevccsesesssccccese 6

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

OI hs cebeecdueretvectebaeedekebeddtelicecocces 4

Saylor v. Taylor, 77 F. 476 (4th Cir. 1896) ......... 22, 23

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct.

eee Ga Ske ccnedetvenvabnessovessenbetecesess 4, 22

Senko v. La Crosse Dredging Corp., 352 U.S. 370

nad ot a0 0nedad eles sence s coun tesaceqnnss 10, 13, 21

Sharp v. Johnson Brothers Corp., 917 F.2d 885 (5th

SE MUN eecoksdedascbhcecestecetessduansansseces 11

Smith v. Brown & Root Marine Operators, Inc., 243 F.

SE. TED GEO, GUD oi ccc dvdicescccdcscccves 6, 7

Vii

TABLE OF AUTHORITIES - Continued

Page(s)

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S.

Ge SP I inc beeccccdesesasecetedecdvses 2, 13, 22

Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir.

SR Unb Adds RUGS eeu ctusesvducedvedthicdevesees 4, 16

Taylor v. Packer Diving & Salvage Co., 342 F. Supp.

Sy CUES oo 0S sedon dcccccncedusectecseests 6

The Arizona v. Anelech, 298 U.S. 110 (1936) .......... 13

The Highlander, 12 Fed.Cas. 136 (D. 1859)............. 6

The Murphy Tugs, 28 F. 429 (E.D. Mich. 1886)......... 6

Wallace v. Oceaneering International, 727 F.2d 427

SE ES ehe dc eticssedscccevecdesoecss 2, 6, 19

Warner v. Goltra, 293 U.S. 155 (1934) ................ 13

Webster v. Seahorse Fleet, Inc., 637 F. Supp. 151

SN I Ci ob nb abso Fi seutessseceicscessecens 6

White v. Valley Line Co., 736 F.2d 304 (5th Cir. 1984) .... 16

State Cases

Brown & Root v. DeSautell, 554 S.W.2d 764 (Tex.Civ.

Ss Bh centcnecvnvens soncerdd<ovendongdeseses 6

De Court v. Beckman Instruments, Inc., 32 C.A.2d

as eee ee i he ee a eaten 7

DeGaetano v. Merritt & Chapman Derrick & Wreck-

ing Co., 219 N.Y.S. 242 (App. Div., 1927)........... 6

Folse v. W. Atlas International, Inc., 593 So. 2d 341

Se Ce bac ks tdaved ces bahawede Sade aeun se 20

Hamilton v. County of Los Angeles, 131 C.A.3d 982

ER A ER Ee RS RE, gee weeny eee 7

viii

TABLE OF AUTHORITIES - Continued

Page(s)

Howard v. Global Marine, Inc., 28 C.A.3d 809 (1972) ..... 7

Smith v. Union Oil Co., 241 C.A.2d 338 (1966) ........ 7

Soucie v. Trautwein Bros., 275 C.A.2d 20 (1969)....... 21

Feverar STarutes

Ps i Mediccccinasess tinny isantenenehesaseeses 10

eS Ge, GS Giae We GG onc ccccesncuveccesstesnson 3

Oe tee OF UE bb 0 db 0d 0 dens ceceevsvcéncespeudaes 3

Ph cows cncupiete ch beaminaecdebbenatubs 23

SE. Mains diketvcastacuneteseossnnsisddeesnes 23

OrHeR AUTHORITIES

Allbritton, “Seaman Status in Wilander’s Wake,” 68

Te Ee, Be CN ob 0:06 bec vcbecacseccticocces 12

Arsenault, “Special Purpose Vessels Under

Attack,” 5 Maritime Law Rptr 24 (Spring, 1993) .... 12

Bederman, “Compulsory Pilotage, Public Policy,

and the Early Private International Law of

Torts,” 64 Tulane L.Rev. 1033 (1990)................ 7

Benedicton Admiralty, Laws of Olevon, § 27 (7th ed.

Psdnahisdd cpheadttccssdarmecdeandnabessoeencenss 7

MARAD Annual Report..........0200000ecceeeeeecees 24

Robertson, “The Law of Seaman Status Clarified,”

23 J. of Mar.L. & Com. 1 (Jan. 1992).... 6, 11, 12, 20

Bam. Ob. FE, BORG). occ ccccccccscccccvccccccsccccopare )

No. 94-325

In The

Supreme Court of the United States

October Term, 1994

CHANDRIS INC., CHANDRIS, S.A. and FOURTH

TRANSOCEANIC SHIPPING CO., LTD.,

Petitioners,

against

ANTONIOS LATSIS,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF OF UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae is filed, with the consent of

the parties, on behalf of the United Brotherhood of Car-

penters and Joiners of America (“UBCJA”). The UBCJA is

an international labor organization with affiliates in the

United States and Canada. It enjoys a total membership

of more than 567,000 working men and women. Many of

those men and women work upon the navigable waters

of the United States. They work as deep sea divers, diver

tenders, piledrivers, carpenters, riggers, welders, and

marine platform builders. They work on rivers, in har-

bors, and upon or beneath the high seas. They construct

piers, wharves, bridges, oil platforms, submarine

pipelines, underwater transit tubes, and open ocean

sewer outfalls. They perform those tasks from derrick

barges, dredges, tugs and other special purpose construc-

tion vessels owned or operated by their employers. Their

work “necessarily involves exposure to numerous marine

perils, and is inherently maritime because it cannot be

done on land.”! This Court has confirmed their maritime

status under both the Longshore and Harbor Workers

Compensation Act (“LHWCA”)? and the Jones Act.*? We

respectfully submit that this status gives them an abiding

interest in the question for review.

SUMMARY OF ARGUMENT

This case comes to Court in the wake of McDermott

International, Inc. v. Wilander*, and Southwest Marine, Inc.

v. Gizoni5 and steers us back towards the rocks and shoals

of Jones Act coverage. We’re standing into ill-charted

1 Wallace v. Oceaneering International, 727 F.2d 427, 436 (Sth

Cir. 1984) [original emphasis].

2 E.g., Director, OWCP v. Perini North River Assoc., 459 U.S.

293 (1983) [piledriver held Longshore “employee”].

3 Grimes v. Raymond Concrete Pile Co., 356 U.S. 252 (1958)

[piledriver held Jones Act “seaman”)].

4 McDermott International, Inc. v. Wilander, 498 U.S. 337

(1991).

5 Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S. Ct. 486

(1991).

waters. The Jones Act, of course, protects “[a]ny seaman

who shall suffer personal injury in the course of his

employment”®, but nowhere defines that key term.” As a

consequence, the statute has drifted on a sea of conflict-

ing interpretations for more than seventy-four years.® The

Wilander decision escorted us past one of those conflicts

when it “jettisoned” the aid to navigation requirement,

and ruled that seamen need not serve the transportation

function of their vessel, provided they contribute to her

overall mission by doing “ship’s work.”? What is more,

dictum from that decision set a course around the present

conflict when it confirmed that: “All those who work at

sea in the service of a ship face those particular perils to

which the protection of maritime law, statutory as well as

“Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right to

trial by jury, and in such action all statutes of the

United States modifying or extending the common-

law right or remedy in cases of personal injury to

railway employees shall apply[.]” 46 U.S.C. § 688(a).

? Curiously enough, though Congress uses the term “sea-

man” throughout the Shipping Code, the only statutory defini-

tion appears in 46 U.S.C. § 10101(3). According to that

definition, “’seaman’ means an individual (except scientific per-

sonnel, a sailing school instructor, or a sailing school student)

engaged or employed in any capacity on board a vessel.”

8 As one lower court Jones Act decision noted, quoting

Diderot, “ ‘We have made a labyrinth and got lost in it.’” Johnson

v. John F. Beasley Construction Co., 742 F.2d 1054, 1060 (7th Cir.

1984).

9 111 S. Ct. at 817.

decisional, is directed.”'° That dictum highlighted the dis-

tinction between “land-based and sea-based employ-

ment” that underlies the mutual exclusivity of the Jones

Act and the LHWCA.!!

While the workers’ compensation remedy set up by

the LHWCA was intended for those who toil along the

waterfront, on or near the shore, the hearty tort remedy

contained in the Jones Act was designed to offset “ ‘the

special hazards and disadvantages to which they who go

down to sea in ships are subjected.’”!? If we are to honor

that critical distinction, we should concede that

employees who are injured aboard a vessel, during a

voyage, while performing ship’s work and enduring

ship’s perils, are then and there Jones Act seamen

whether or not they have spent the rest of their careers

afloat.

In short, the UBCJA respectfully urges the Court to

affirm those Jones Act cases from the Second, Third, Sixth

and Ninth Circuits which hold that “a plaintiff's status as

a seaman is determined at the time of his injury.”'* Those

holdings jibe perfectly with Wilander’s decision to adopt

1© 111 S. Ct. at 817.

nM Id.

12 Wilander, supra, 111 S. Ct. at 817, quoting Seas Shipping v.

Sieracki, 328 U.S. 83, 104 (1946) [Stone, C.J. dissenting].

13 Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d 732, 739

(6th Cir. 1986); see also, Reeves v. Mobile Dredging & Pumping Co.,

Inc., 26 F.2d 1247, 1251 (3d Cir. 1994); Salgado v. M.]. Rudolph

Corp., 514 F.2d 750, 755 (2d Cir. 1975); Stanfield v. Shellmaker, Inc.,

869 F.2d 521, 525 (9th Cir. 1989).

that portion of the Robison'4 test which requires a crew

member to “ ‘contribut[e] to the function of the vessel or

to the accomplishment of its mission... . ‘”' As even

jurists from the Fifth Circuit agree, “An assignment to

work as a crew member, like the voyage of a vessel, may

be brief, and the Robison test is applicable in deciding the

workers’ status during any such employment.”' It there-

fore seems difficult to square the original holding in

Robison with the Fifth Circuit’s more recent view that,

“The issue of an injured worker's status as a seaman

should be addressed with reference to the nature and

location of his occupation taken as a whole.”’” Whether

or not this notion should be employed offensively, to

expand remedial Jones Act coverage and bestow sea-

man’s status upon ambiguous, amphibious maritime

workers, it is both harsh and incongruous to apply it

defensively to curtail the statute’s protection and deny a

seafaring plaintiff seaman standing.

The idea that a plaintiff’s Jones Act status should be

“determined ‘in the context of his entire employment’ ”'*

has impelled the Fourth and Fifth Circuits to banish

ship’s pilots’? and deep sea divers?® from the statute’s

14 Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959).

1S Wilander, supra, 111 S. Ct. at 817.

16 Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067, 1077 (5th Cir.

1986) [Rubin, J., dissenting].

17 Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1347 (5th Cir.

1980).

18 Barrett, supra, 781 F.2d at 1075.

19 Bach v. Trident Steamship Co., Inc., 920 F.2d 322, 328 (5th

Cir. 1991) [Brown, J., dissenting] vacated, __ U.S. __, 114

embrace. Few workers are more intimately or continu-

ously exposed to the perils of the sea than a ship’s pilot,

and none more so than a deep sea diver.?! Deep sea

divers have thus enjoyed the rights and duties of seamen

since at least 1859.22 Moreover, as this Court specifically

L.Ed.2d 706 (1991) reinstated on reconsideration, 947 F.2d 129 (5th

Cir. 1991), cert. den., __ U.S. ___, 118 L.Ed.2d 592 (1992); Harw-

ood v. Partredereit AF, 944 F.2d 1187 (4th Cir. 1991), cert. den.,

U.S. __, 117 L.Ed.2d. 493 (1992); see also, Evans v. United Arab

Shipping Co. S.A.G., 4 F.3d 207 (3d. Cir. 1993). Contra see, Ringer-

ing v. Compania Maritima De-La-Mancha, 670 F. Supp. 301 (D. Or.

1987), affd. mem., 848 F.2d 1243 (9th Cir. 1988); Clark v. Solomon

Nav. Co., Ltd., 631 F. Supp. 1273 (S.D.N.Y. 1986).

20 Ashley v. Epic Divers, Inc., 818 F. Supp. 172 (E.D. La. 1991),

aff'd without opinion, 976 F.2d 730 (5th Cir. 1992).

21 Wallace v. Oceaneering International, supra, 727 F.2d at 436;

Webster v. Seahorse Fleet, Inc., 637 F. Supp. 151, (W.D.La. 1986);

Robertson, “The Law of Seaman Status Clarified,” 23 J. of Mar.L.

& Com. 1, 15 (Jan. 1992).

22 See, e.g., The Highlander, 12 Fed.Cas. 136 (D. 1859) [sal-

vage diver held seaman]; The Murphy Tugs, 28 F. 429 (E.D. Mich.,

1886) [salvage diver held seaman]; Pickle v. International Oilfield,

791 F.2d 1237 (Sth Cir. 1986) [offshore oil diver held seaman];

Wallace v. Oceaneering International, 727 F.2d 427 (5th Cir. 1984)

[offshore oil diver held seaman]; Gaspard v. Taylor Diving &

Salvage Co., Inc., 649 F.2d 372 (5th Cir. 1981) [salvage and con-

struction diver held seaman]; Taylor v. Packer Diving & Salvage

Co., 342 F. Supp. 365 (D.C.La. 1971), aff'd, 457 F.2d 512 (5th Cir.

1972) [offshore oil diver held seaman]; Webster v. Seahorse Fleet,

Inc., 637 F. Supp. 151 (W.D.La. 1986) [offshore oil diver held

seaman]; Etu v. Fairleigh Dickinson Univ. of the West Indies, 635 F.

Supp. 290 (D.Vir.Is. 1986) [scientific support diver]; Smith v.

Brown & Root Marine Operators, Inc., 243 F. Supp. 130 (D.C.La.

1965), aff'd, 376 F.2d 852 (Sth Cir. 1967) [offshore oil diver held

seaman]; Brown & Root v. DeSautell (Tex.Civ. App. 1977) 554

S.W.2d 764 [offshore oil diver held seaman]; DeGaetano v. Merritt

& Chapman Derrick & Wrecking Co. (App. Div. 1927) 219 N.Y.S.

recognized in Wilander, ship’s pilots have been treated as

seamen since the earliest days of the Republic. In short,

Jones Act law has taken some surprising turns of late.

The instant case gives this Court an opportunity to set

things straight.

By affirming the decision below, and upholding sea-

man’s status for those whose shipboard assignments at

the time of the injury expose them to the perils of the sea,

this Court can bring the Jones Act back on course, save

the statute from harsh and incongruous interpretations,

and ballast the decisions more deeply in the “land-based /

sea-based” distinction upon which the whole remedial

242 [salvage diver held seaman]; Kjar v. American Divers, Inc.,

1994 A.M.C. 522 (D.C.Ha. 1991) [scuba diver held seaman];

Hamilton v. County of Los Angeles (1982) 131 C.A.3d 982, 182 C.R.

868 [scuba diver held seaman]; De Court v. Beckman Instruments,

Inc. (1973) 32 C.A.2d 628 [test diver held seaman]; Howard v.

Global Marine, Inc. (1972) 28 C.A.3d 809 [ship survey diver held

seaman]; Smith v. Union Oil Co. (1966) 241 C.A.2d 338 [offshore

oil diver held seaman]; see also, Kopczynski v. The JACQUELINE,

742 F.2d 555 (9th Cir. 1984) [diver tender held seaman].

23 As Wilander summed up:

“A cook and steward are seamen in the sense of the

maritime law, although they have peculiar duties as

assigned them. So a pilot, a surgeon, a ship carpenter, and

a boatswain, are deemed seamen, entitled to sue in admi-

ralty.” Id., 111 S. Ct. at 811 quoting U.S. v. Thompson, 28

F.Cas. 102 (No. 16,492) (CCD Mass. 1832) [emphasis

added]. See also, Cooley v. Board of Wardens, 53 U.S. (12

How.) 299, 316 (1852)

Indeed, ship’s pilots have been treated as seamen since the twelfth

century and the Code of Oleron. See e.g., Bederman, “Compulsory

Pilotage, Public Policy, and the Early Private International Law of

Torts,” 64 Tulane L.Rev. 1033, 1041 (1990); Benedict on Admiralty (7th

ed. 1989), Laws of Oleron, § 27, pp. 2-6.

scheme ultimately floats. That is why the UBCJA has

respectfully filed this brief.

We believe that petitioners and their amici are mis-

reading Wilander. When it comes to describing the neces-

sary “employment-related connection to a vessel,” we

respectfully submit that the Second Circuit’s requirement

that a plaintiff's assignment be “substantial in terms of its

(a) duration or (b) nature,” and that it “expose the plain-

tiff to the hazards of the sea,”?4 captures well an impor-

tant requirement of seaman status.

ARGUMENT

THE INQUIRY INTO SEAMEN STATUS IS FACT-

SPECIFIC AND TURNS ON THE NATURE OF THE

VESSEL AND THE PLAINTIFF’S PRECISE RELATION-

SHIP TO IT.

We begin our analysis of the question for review by

remembering that, in most cases, it’s ultimate application

will be a matter for the jury. Petitioner’s amicus, the City

of New York, urges this Court to adopt “a predictable test

for seaman status” that can be resolved by “Rule 12(b)

procedure as a [threshold] jurisdictional question.”> But

as Wilander reminds us, the issue is “better characterized

24 Latsis v. Chandris, Inc. (Opinion Below), 20 F.3d 45, 57 (2d.

Cir. 1994) [emphasis added].

25 See Amicus Curiae Brief of the City of New York in

Support of Petitioners (“Brief of the City of New York”), p. 8.

as a mixed question of law and fact.”2 Whatever peti-

tioner and its amici might hope, “The inquiry into seaman

status is of necessity fact-specific; it will depend on the

nature of the vessel and the employee's precise relation to

it.”27 The present inquiry, of course, concerns the latter of

those two factors — the employee's precise relationship to

the vessel. The City of New York has nonetheless briefed

us on the definition of a “vessel in navigation.”** Since

this Court’s “power to decide is not limited by the precise

terms of the question presented”?’, those desultory argu-

ments*® merit a short reply.

26 Wilander, supra, 111 S. Ct. at 818.

27 Id.

28 Brief of the City of New York, pp. 21-23.

29 Procunier v. Navarette, 434 U.S. 535, 559 n. 6 (1978).

3% The UBCJA, of course, recognizes that this Court's rules

are very specific, and “do not normally address any issues other

than those fairly comprised within the questions presented by

the petition for certiorari and any cross petitions.” Lake Country

Estates, Inc. v. Tahoe Reg. Plan., 440 U.S. 391, 398 (1979). Thus,

“the brief may not raise additional questions or change the

substance of the questions already presented in those docu-

ments.” United States Supreme Court Rule 24.1(a).

THE TERM “VESSEL IN NAVIGATION” SHOULD BE

INTERPRETED BROADLY, IN KEEPING WITH THE

JONES ACT’S REMEDIAL PURPOSE AND LIBERAL

HISTORY, AND SHOULD NOT BE CONSTRAINED BY

THE PROLIX “FLOATING WORK PLATFORM DOC-

TRINE” OR ANY OF ITS OFFSPRING.

As used in the Jones Act, the term “vessel” has tradi-

tionally been construed very liberally.*' According to the

statutory definition, it “includes every description of

watercraft or other artificial contrivance used, or capable

of being used, as a means of transportation on water.”*? As

this Court has specifically ruled, that definition reaches

anchored special purpose vessels, such as derrick barges,

dredges and paint boats, thai were neither underway at

the time of the accident, nor “in transit” at any point

during the plaintiff's assignment.

Beginning in 1984, with the Fifth Circuit’s decision in

Bernard v. Binnings Const. Co.,>4 the Gulf Coast courts have

carved out a confusing and controversial exception to that

broad rule known as the “floating work platform doc-

trine.”*5 Wielding what one of the field’s leading

31 See e.g., Kathriner v. Unisea, Inc., 975 F.2d 657, 662 (9th Cir.

1992) [summarizing cases].

32 33 U.S.C. § 3.

33 Senko v. La Crosse Dredging Corp., 352 U.S. 370, 372 (1957)

{anchored dredge]; Wilander, supra [anchored paint boat]; Giz-

oni, supra [anchored shipyard scow].

* 741 F.2d 824 (Sth Cir. 1984).

35 See also, Ducote v. V. Keeler & Co. Inc., 953 F.2d 1000 (5th

Cir. 1992); Ellender v. Kiva Const. & Engineering, Inc., 909 F.2d 803

(Sth Cir. 1990); Hurst v. Pilings & Structures, Inc., 896 F.2d 504

(11th Cir. 1990); Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 43

commentators has termed a “prolix” and “extremely flabby”

test,°° that doctrine uses three “non-requisite criteria” and

nine free-floating “factors”*” to distinguish between “actual”

vessels and mere “floating work platforms.” Just how

the Fifth and Eleventh Circuits selected these random deter-

minants from the countless characteristics that ingenuity,

technology, poetry, and history have crafted into the concept

of a vessel was never explained, but Gulf Coast courts

typically use them, like an auger, to scuttle Jones

Act claims summarily under Rule 56. Those summary

judgments have left a long slick of chaotic results,”

(Sth Cir. 1989); but see Sharp v. Johnson Bros. Corp., 917 F.2d 885

(5th Cir. 1990); Brunet v. Boh Brothers Construction Co., 715 F.2d

196, 198-199 (5th Cir. 1983).

% See Robertson, “The Law of Seaman Status Clarified,” 23

J. of Mar. L & Comm. 1, 14 (Jan. 1992).

3” The three criteria inquire whether the structure at issue

was: (a) constructed and used primarily as a work platform

rather than for transporting people or things; (b) moored or

otherwise secured at the time of the accident; and (c) capable of

anything other than a “merely incidental” transportation func-

tion. The nine free floating factors ask whether the structure

sports: (1) navigational aids; (2) a raked bow; (3) lifeboats and

other life-saving equip ment; (4) bilge pumps; (5) crew quarters;

(6) Coast Guard registration; (7) the ability to float; (8) the

ability to move; and (9) a recent history of movement. See Ber-

nard, supra, 741 at 831-832.

38 Id., 741 F.2d at 831.

%® Compare e.g., Ellender v. Kiva Construction Co., supra

{upholding summary judgment denying seaman status to pil-

edriver assigned to crane barge anchored on Chandeleur

Sound] with Sharp v. Johnson Brothers Corp., supra [holding that

piledriver assigned to a very similar crane barge anchored on

Lake Pontchartrain could take his claim to the jury].

inter-coastal conflicts,“ and critical comments in their

wake.*! We respectfull, urge this Court to consider those

cases here.

We also urge the Court to consider the First Circuit's

decision in DiGiovanni v. Traylor Bros., Inc.4? Taking its

inspiration from the “floating work platform doctrine,”

that case fished the “aid to navigation requirement” from

among the flotsam to which the Wilander decision had

“jettisoned” it, and ruled that workers assigned to

dredges and crane barges are seamen only when they are

injured while their vessel is “in transit.”* According to

DiGiovanni, and its progeny, as soon as a dredge or a

barge (or any other special purpose vessel whose primary

mission is not the transportation of people or goods) casts

off her tug, drops her anchors and sets about her special

mission, the “voyage ends,” and the workers upon her

decks turn, Cinderella-like, into LHWCA beneficiaries.“

# In contrast to the Fifth and Eleventh Circuit’s doctrinal

approach, the Ninth Circuit has ruled that “[t]here is no formula

by which to determine whether a structure is a vessel.” Kathriner

v. Unisea, Inc., supra, 975 F.2d at 662.

41 Allbritton, “Seaman Status in Wilander’s Wake,” 68

Tulane L.Rev. 363 (1994); Robertson, supra; Arsenault, “Special

Purpose Vessels Under Attack,” 5 Maritime Law Rptr 24

(Spring, 1993).

42 959 F.2d 1119, 1123 (1st Cir. 1992), cert. den., 113 S. Ct. 87

(1992).

43 See also, Hatch v. Durocher Dock & Dredge, Inc., 33 F.3d 545,

547 (6th Cir. 1994).

44 DiGiovanni, supra, 959 F.2d at 1121.

Needless to say, this magical transformation was not vis-

ited upon the Act without a stinging dissent from the

First Circuit’s Senior Judge.*®

Whether or not the question on appeal focuses

squarely on these collateral “vessel” issues, the UBCJA

respectfully requests the Supreme Court to examine Ber-

nard and DiGiovanni in order to clarify the law. Without

belaboring the point, those cases seem to be at odds not

only with Senko, Wilander, and Gizoni, but with the whole

history and purpose of the Jones Act, and indeed with the

Fifth Circuit’s own proud legacy since Robison. It was the

Fifth Circuit, after all, that first “expanded the coverage

of the Jones Act to include almost any workman sustain-

ing almost any injury while employed on almost any

structure that once floated or is capable of floating on

navigable water.” Its decisions have since undergone a

philosophical sea change. We respectfully urge the Court

to take this opportunity to determine whether that chilly

new climate is truly consistent with the sunny traditions

of the Jones Act. That statute, after all, is a remedial

legislation that must be liberally construed to extend

rather than restrict its ambit.*7 We respectfully submit

that the Bernard and DiGiovanni cases have lost sight of

that well settled rule. The decision below did not.

5 [d., 959 F.2d at 1124 [Toreulla, J., and Bownes, J., dissent-

ing].

* Robison, supra, 266 F.2d at 771.

47 See The Arizona v. Anelech, 298 U.S. 110, 121-122 (1936);

Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 375 (1932);

Warner v. Goltra, 293 U.S. 155, 157 (1934).

THE “PERMANENT” OR “SUBSTANTIAL CONNEC-

TION” REQUIREMENT MUST BE RETOOLED IN THE

WAKE OF WILANDER TO PROTECT ANYONE

INJURED IN THE COURSE OF A VOYAGE.

As more and more authorities are taking care to point

out, the old “permanent assignment” factor has been

retooled by Wilander to comprise an “employment-related

connection to a vessel in navigation.”** Even before that

decision, it had long been settled that the word “ ‘perma-

nent’ has never been assigned a literal interpretation

under the Jones Act, and should not be given a ‘wooden

application,’ but rather, is to be used as an analytical

starting point instead of a self executing formula.”*? This

seems truer still in the wake of Wilander.

Though many lower courts remain mired in their

own pre-Wilander interpretations,>' a growing chorus of

48 Wilander, supra, 111 S. Ct. at 817.

49 Guidry v. Continental Oil Co., 640 F.2d 529, 523 (Sth Cir.

1981).

50 See e.g., Bach, supra, 947 F.2d at 1291-1293 [Brown, J.,

dissenting].

51 This tendency is by no means restricted to the Fifth Cir-

cuit. In McKinley v. Allalaskan Seafoods, Inc., 980 F.2d 567 (9th Cir.

1992), for example, the Ninth Circuit set out its pre-Wilander

“three part test for determining ‘seaman’ status under the Jones

Act” as follows:

“(1) the vessel on which the claimant was employed

must be in navigation;

(2) the claimant must have a more or less permanent

connection with the vessel; and,

authorities has come to realize that what we once called

“the permanent connection factor is not a temporal rela-

tionship with any particular ship, but is employment-

related and focuses instead on the nature of the workers’

duties as they relate to the ship and the ship’s mission at

the time of the injury.”5? As the decision below put it,

“The more or less permanent connection element of [the

test for seaman status] is not merely a temporal con-

cept.”°3 Might it not, then, be time for this Court to

jettison the confusing “permanency” requirement just as

it jettisoned the aid to navigation requirement in Wila-

nder?

1. Where, as Here, the Plaintiff Was Injured

aboard a Vessel during a Voyage, Seaman Status

Need Not Be Determined within the Context of

His or Her Entire Employment.

Except, perhaps, for galley slaves or the Flying

Dutchman, no seaman has ever been cursed with a truly

permanent assignment. As a consequence, some courts

have qualified that requirement with the modifier “more

(3) the claimant must be aboard primarily to aid in

navigation.” Id., 980 F.2d 567.

Even though this decision was handed down more than a year

— this Court’s decision in Wilander, we have to look to a

ootnote to discover that “The third part of the test was rejected

in McDermott Int'l, 498 U.S. at ___, 111 S. Ct. at 817.” Id., at fn. 3.

Old Jones Act interpretations clearly die hard.

52 Evans v. United Arab Shipping Co. S.A.G., supra, 4 F.3d

220-221. - — "3

53 Decision Below, 20 F.3d at 52-53.

or less,”54 while others have allowed seamen to satisfy it

by proving that they performed “a substantial part” of

their work aboard a vessel.55 Still others have found “no

insurmountable difficulty” in the fact that the seaman

performs a substantial part of his or her work aboard a

these modifications were crafted to “ease” the permanent

assignment requirement and thus expand the protective

reach of the Jones Act.5? They were obviously intended as

a shield for injured workers.** As a famous passage from

Robison put it, they made “[t]he reach of the Jones

Act... a peril of the sea that could hardly have been

dreamt of by the landlubbers in the oil business.”° But in

the last few years, Gulf Coast courts have turned the

54 E.g., McKinley, supra, 980 F.2d at 569.

55 E.g., Robison, supra, 266 F.2d at 779.

56 Braniff v. Jackson Ave. Gretna Ferry, Inc., 280 F.2d 523, 528

(Sth Cir. 1960); see also Barrett, supra; Buna v. Pacific Far East

Lines, Inc., 441 F. Supp. 84, 87-89 (N.D.Ca. 1978).

57 Stanfield v. Shellmaker, Inc., supra, 869 F.2d at 525.

58 See, Chauvin v. Sanford Offshore Salvage, Inc., 868 F.2d 735

(5th Cir. 1989); New v. Associated Painting Services, Inc., 863 F.2d

1205 (5th Cir. 1989); Legros v. Panther Service Group, Inc., 863 F.2d

345 (Sth Cir. 1989); Lormand v. Superior Oil Co., 845 F.2d 536 (Sth

Cir. 1987); Liverette v. N.L. Sperry Sun, Inc., 831 F.2d 554 (Sth Cir.

1987); Barrett v. Chevron, USA, Inc., supra; White v. Valley Line Co.,

736 F.2d 304 (5th Cir. 1984); Jones v. Mississippi River Grain

Elevator Co., 703 F.2d 108 (5th Cir. 1983), cert. den., 464 U.S. 856

(1983); Bertrand v. International Mooring & Marine, Inc., 700 F.2d

240 (5th Cir. 1983); Guidry v. Continental Oil Co., 640 F.2d 523 (Sth

Cir. 1981), cert den., 454 U.S. 818 (1981); Longmire v. Sea Drilling

Corp., supra; Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (Sth

Cir. 1977) rev'd and rem'd 436 U.S. 618 (1978).

5° Robison, supra, 266 F.2d at 771.

permanent connection requirement into a nightmare for

such old shellbacks as ship’s pilots® and deep sea

divers.°' We respectfully submit that Congress never

intended such bizarre and incongruous results.

As the decision below was quick to recognize, these

incongruities grew out of the Fifth Circuit’s view that

“the language of the Robison test frames the substantial

connection issue primarily, if not solely, in temporal

conclusion that a seaman’s status must “be addressed

with reference to the nature and location of his occupa-

tion taken as a whole.”® That, of course, is the same

conclusion which animates the arguments of petitioner

and its amici. We respectfully submit that it is erroneous

for several reasons.

2. The Seaman Status of Traditional Mariners

Should be Determined Solely from Their

Assignment at the Moment of the Injury.

The permanent connection requirement was not

designed for traditional mariners, but for “ambiguous-

amphibious maritime worker[s]” whose employments are

ing]; Harwood, supra, 944 F.2d. at 1194 [Ervin, J., dissenting].

6! Ashley, supra.

62 Decision Below, 20 F.3d at 54.

also, Barrett v. Chevron USA, Inc., supra, 781 F.2d at 1075; Lormand

v. Superior Oil Co., supra, 845 F.2d at 540.

only incidentally related to a vessel. The cases are popu-

lated, almost entirely, by oil rig welders,®° tool pushers,°

drilling foremen,°” derrick operators, riggers, sand-

blasters,”? mechanics,”! and even granary workers.”? But

that requirement was not designed to illuminate the sta-

tus of someone, like Antonio Latsis, who performs tradi-

tional seaman’s work on one or more short voyages.”*

Nor should it be applied to ship’s pilots or deep sea

divers.

As Judge Brown dissented in Bach:

“A compulsory pilot is in no sense comparable

to those incidentally related to a vessel. Such

pilot is indispensable. The vessel may not oper-

ate without him/her. That pilot is in supreme

command of the basic function of the vessel — to

navigate in maritime commerce. That person is a

seaman or he/she is nothing.””4

4 Braniff v. Jackson Avenue Gretna Ferry, Inc., supra, 280 F.2d

at 525.

65 Barrett, supra; Lormand, supra.

66 Guidry v. Continental Oil Co., supra.

67 Higginbotham v. Mobil Oil Corp., supra.

68 Liverette v. N.L. Sperry Sun, Inc., supra.

6? Chauvin v. Sanford Offshore Salvage, Inc., supra.

70 New v. Associated Painting Services, Inc., supra.

71 Braniff, supra.

72 Jones v. Mississippi River Grain Elevator Co., supra.

73 Barrett v. Chevron USA, Inc., supra, 781 F.2d at 1075, fn. 13.

74 Bach, supra, 920 F.2d at 333 [Brown, J., dissenting]. To

quote Chief Judge Ervin’s dissent in Harwood:

“In order to carry out his duties, the harbor pilot must

board a ship he does not know and work with equipment

And as the Fifth Circuit, itself, admonished in Wallace v.

Oceaneering Int'l:

“We hold that a commercial diver, who

embodies the traditional and inevitable task of

navigation, has the legal protections of a seaman

when a substantial part of his duties are per-

formed on vessels. It is the inherently maritime

nature of the tasks performed and perils faced

by his profession, and not the fortuity of his

tenure on the vessel from which he makes the

particular dive on which he was injured, that

makes [a diver] a seaman.”75

What is more, even when applied to “ambiguous-

amphibious maritime workers,” like the “landlubbers” in

he has not had a chance to examine. If the shipowner has

the duty to provide a seaworthy vessel and equipment to

the members of the crew, who have been excluded from

the [Longshore] Act so that they may retain the benefit of

that warranty as well as other general maritime

remedies, surely the harbor pilot performing naviga-

tional duties aboard the ship with that same equipment is

owed that same duty.” Harwood, supra, 944 F.2d. at 1194

(Ervin, J., dissenting].

75 727 F.2d. at 436. As Judge Fong recently put it in a deci-

sion from the district court of Hawaii: “The Fleet Seaman Doc-

trine was designed by the Fifth Circuit to broaden coverage

under the Jones Act; its purpose is to extend ‘seaman’ status to

those performing many land-based duties. Divers are inherently

maritime workers - their primary functions are performed

under the sea. They are not the intended beneficiaries of the

Fleet Seaman Doctrine and to hold them to the overall-context-

of-employment standard would defeat the doctrine’s expansive

purpose. Therefore, the court finds that the applicable time

period for ‘seaman’ status is the time of the accident.” Kjar v.

American Divers, Inc., supra, 1994 A.M.C. at 529.

the offshore oil business, the substantial connection

requirement has not one, but two distinct purposes. As

the decision below explained, it was intended: First, to

exclude those whose work brings them into contact with

many vessels but who are not connected with any partic-

ular vessel or identifiable fleet of vessels; and, Second, to

exclude those whose contribution, although limited to a

single vessel or fleet of vessels, was nevertheless only

temporary or transitory in nature.”° As alert commenta-

tors were quick to realize, this double-barrelled approach

scattered a good deal of confusion among the cases.”” But

if we rephrase the test in terms of the monolithic “sea-

based/land-based” distinction that this Court empha-

sized in Wilander, as the Louisiana Supreme Court did in

Folse v. W. Atlas Int'l, Inc.,78 we see that the substantial

connection requirement merely differentiates “between

transitory land-based employees and those working

aboard a vessel for a voyage.””? To make the point again

is to belabor it. The former must look to the LHWCA, no

matter how much time they may spend afloat, while the

latter are protected by the Jones Act, no matter how short

their voyage may have been. This was the simple syn-

thesis worked by the decision below.

Quoth the Second Circuit:

“We reiterate that after Wilander and Gizoni the

test of seaman status under the Jones Act is an

76 Decision Below, 20 F.3d. at 56.

77 Robertson, “The Law of Seaman Status Clarified,” supra,

23 J. of Mar.L. & Com. at 16-27.

78 593 So.2d 341 (La. 1992).

79 Id., 593 So.2d at 343.

employment-related connection to a vessel in

navigation. The test will be met where a jury

finds (1) that the plaintiff contributed to the

function of, or helped accomplish the mission

of, a vessel; (2) the plaintiff's contribution was

limited to a particular vessel or identifiable

group of vessels; (3) the plaintiff’s contribution

was substantial in terms of its (a) duration or (b)

nature; (4) the course of the plaintiff's employ-

ment regularly exposed the plaintiff to the haz-

ards of the sea.”#°

As Robison did before it, this alternatively worded

test “captures well an important requirement of seaman

status.”*! It eschews the prolix and confusing “work plat-

form doctrine,” preserves the purely temporal criteria

that are still necessary to identify “commuter” or “brown

water seamen” like derrick barge hands,*? tugboatmen,*?

ferry boat operators,*4 or dredge engineers,*® and at the

same time vouchsafes coverage to all those traditional

“blue water” mariners, like ship’s pilots* and deep sea

divers,*” whose individual voyages may be very short.

80 20 F.3d at 57 [emphasis added].

5! Wilander, supra, 111 S. Ct. at 817.

* See e.g., Grimes v. Raymond Concrete Pile Co., supra [pil-

edriver held seaman]; Soucie v. Trautwein Bros. (1969) 275 C.A.2d

20 [piledriver held seaman].

83 Kernan v. American Dredging Co., 355 U.S. 426, 435, 78 S.

Ct. 394, 399 (1958) [tugboat deckhand].

*4 Braniff, supra [ferry boat hand].

| 8° Senko, supra [dredge engineer]; Ramos v. Universal Dredg-

ing Corp., 547 F. Supp. 661 (D.C.Ha. 1982) [dredge engineer].

8 See footnote 19, supra.

87 See footnote 22, supra.

—

What is more, it makes the policy considerations outlined

in Wilander quite explicit by working an on-going expo-

sure to maritime hazards into the test. That test requires

an employment-related allegiance to a rolling, pitching

vessel,88 and protects all those who voyage upon the

waters. This brings us to our final point.

IV.

SEAMAN’S STATUS SHOULD NOT BE LIMITED TO

THOSE WHO VOYAGE ON THE OPEN OCEAN.

While the Jones Act was plainly intended to protect

offshore workers from the “perils of the sea,”®? we should

not interpret it to exclude the seamen who voyage on our

Great Lakes, great and small rivers, scenic sounds, and

salt water bays. Indeed, seamen can even be found on

fresh water creeks.

Ninety-eight years ago, the Fourth Circuit sat down

to the riddle of seaman standing in the aptly named

Saylor v. Taylor.” The Jones Act would not be passed for

another twenty-four years, but the court had to decide

whether to grant a maritime wage lien to a crew of fresh

water dredge hands. The resulting opinion is worth quot-

ing at length:

“And so it seems a stretch of the imagination to

class the deck hands of a mud dredge in the

88 Wilander, supra, 498 U.S. at 346-347.

89 Wilander, supra, 111 S. Ct. 807, 817 (1991); Seas Shipping

Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 879-880 (1946); Gizoni,

supra, 112 S. Ct. at 493.

9 77 F. 476 (4th Cir. 1896).

quiet waters of a Potomac creek with the bold

and skillful mariners who breast the angry

waves of the Atlantic; but such and so far-reach-

ing are the principles which underlie the juris-

diction of admiralty that they adapt themselves

to all the new kinds of property and new sets of

operatives and new conditions which are

brought into existence in the progress of the

world. Hence it is that in all times and in all

countries those who are employed upon a vessel

in any capacity, however humble, and whose

labor contributes in any degree, however slight,

to the accomplishment of the main object in

which the vessel is engaged, are clothed by the

law with the legal rights of mariners, ‘no matter

what may be their sex, character, station or pro-

fession.’ “9!

That ruling adumbrated Robison by more than 60

years. It foreshadowed Wilander by almost a century. But

it still illuminates the Jones Act today. If that statute is to

continue to adapt itself to all the new kinds of property

and new sets of operatives and new conditions that are

brought into existence in the progress of the world, we

would do well to heed Saylor’s holding in this case.

CONCLUSION

When the Jones Act was first adopted in 1920,%

steam still competed with sail on most of the world’s

91 Id., 77 F. at 479.

92 March 4, 1915, c. 153, Sec. 20, 38 Stat. 1185; amended June

5, 1920, c. 250, Sec. 23, 41 Stat. 1007.

trade routes, and the American merchant marine still flew

its flag on all the world’s oceans. Our seamen still navi-

gated by the stars, steered by hand, and slept before the

mast. Deep sea divers still braved the depths in heavy

brass helmets, and still decompressed on open platforms

in cold, black waters. In the last 74 years, merchant sail

has disappeared. Diesel has supplanted steam. The Amer-

ican merchant marine has ebbed from the routes it used

to dominate, and its few remaining mariners have

learned to plot their course with computers, steer by

auto-pilot, and live in air-conditioned crew’s quarters

among pools, spas, and video games.%? But deep sea

divers like those who belong to the UBCJA still brave the

depths in the same brass helmets. They still decompress

in the same cold waters on the same open platforms.

Their job has changed very little. It still requires a degree

of courage, strength, confidence, and endurance that is

seldom called for ashore. In many ways, divers are the

last real seamen. Certainly, no man is more exposed to the

sea or to its perils, and none is more deserving of the

protection we seek here. We respectfully urge this Court

93 A quarter-century ago, the American merchant marine

still boasted 45,650 shipboard positions. U.S. Dept. of Transpor-

tation, Maritime Adm., The Annual Report of the Maritime Admin-

istration for Fiscal Year 1986 (“MARAD Annual Report”), Gov't

Printing Off. (Wash.D.C. 1963), 19. By 1981, that number had

dwindled to 46,245. MARAD Annual Report (1981 ed.) 44-45.

According to the most recent figures, there are only 17,887 card-

carrying merchant seamen left. MARAD Annual Report (1985

ed.) 37. The future of the Jones Act plainly lies elsewhere.

to vouchsafe that protection by affirming the decision

below.

Respectfully submitted,

Katuy L. KrigGer

General Counsel

United Brotherhood of Carpenters

and Joiners of America

101 Constitution Ave., N.W.

Washington, D.C. 20001

(202) 543-5724

Joun R. HittsmMaAn

McGutInn, HILtsMAN & PALEFSKY

0535 Pacific Avenue

San Francisco, California 94133

(415) 421-9292

Attorneys for the

United Brotherhood of Carpenters

and Joiners of America

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