Amicus Curiae Brief — Stewart v. Dutra Constr. Co.

JAN 7 - 2004 No. 03-814

In The

-Supreme Court of the Anited States

¢

\

WILLARD STEWART,

Petitioner,

v.

DUTRA CONSTRUCTION CoO.,

Respondent.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

¢

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

THE UNIVERSITY OF SAN FRANCISCO

MARITIME LAW JOURNAL IN SUPPORT

OF PETITION FOR CERTIORARI

o

JOHN R. HILLSMAN

McCGUINN, HILLSMAN & PALEFSKY

535 Pacific Avenue

San Francisco, CA 94133

(415) 421-9292

Counsel for the University of

San Francisco Maritime

Law Journal, Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

1

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF

PETITION FOR CERTIORARI

The University of San Francisco Maritime Law

Journal (““USFMLJ”) herewith respectfully moves this

Court, pursuant to Rules 21.2(b) and 37.2, for leave to file

an amicus curiae brief in support of the Petition for

Certiorari filed by Willard Stewart.

The USFMLJ is a non-profit, student-run law journal

affiliated with the University of San Francisco School of

Law. Its primary mission is to publish a biannual legal

periodical to which academics and attorneys can turn for

commentary on the latest developments in maritime law.

It reaches subscribers both here and abroad and publishes

articles submitted by students, professors and practitio-

ners from all across the country. As part of that mission, it

oversees several aspects of the maritime law program

offered by the University of San Francisco School of Law,

administers an internship program whereby law students

receive academic credit for performing clinical work in

maritime law firms, publishes the proceedings of the

Pacific Admiralty Seminar, and sponsors the Judge John

R. Brown National Admiralty Moot Court Competition

whenever it convenes in the San Francisco Bay Area.

The USFMLJ has published several notes and com-

ments on issues arising under the Jones Act, 46 U.S.C.A.

$ 688, and believes that the Petition for Certiorari filed

by Willard Stewart frames an issue whose resolution is

vital to the uniform interpretation and efficient admini-

stration of that statute. It is for these reasons that movant

2

respectfully request leave to file the attached amicus

curiae brief in support of that Fetition.

January 7, 2004

Respectfully submitted,

JOHN R. HILLSMAN

MCGUINN, HILLSMAN & PALEFSKY

535 Pacific Avenue

San Francisco, CA 94133

(415) 421-9292 7

Counsel for the University

of San Francisco Maritime

Law Journal, Amicus Curiae

i

The Court should accept certiorari to bind up

the conflicting definitions which the lower

courts have applied to the term “vessel” with a

much needed reform rule .................cccccccceeeeeeeees

A. The statutory rule of construction ..............

B. The “floating work platform doctrine” and

the narrow vessel standards of the Second,

Fifth and Eleventh Circuits ........................

. The broader vessel standards of the Third,

Fourth, Seventh and Ninth Circuits...........

. The “actual transit” test and the restrictive

vessel standards of the First and Sixth Cir-

EEE ES ee

. The vessel standards of the First, Second,

Fifth, Sixth and Eleventh Circuits cannot

be reconciled with the decisions of this

1. The floating work platform doctrine is

in tension with this Court’s decisions in

Senko, Gizoni I and Grubart..................

2. The actual transit test is in tension

with this Court’s decisions in Wilander,

Chandris and Harbor Tug ...................

The conflict between the lower courts

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ...0........00.c0000000000 1

SUMMARY OF ARGUMENT..................cc.cceecceeseeseees 1

Ee 4

11

12

12

14

ii

TABLE OF CONTENTS - Continued

Page

Il. This Court should also accept certiorari to

bring the interpretation of the Jones Act back

in step with the LHWCA...................:cccsseseeeeeeees 17

III. The Court should finally accept certiorari to

alleviate the uncertainties still besetting mari-

time workers employed at the border line be-

tween the Jones Act and the LHWCA............... 18

I Ai eccccceccccescssscesecesccnescsssnssesnsesscssenssensessonssees 20

lili

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Bennett v. Perini Corp., 510 F.2d 114 (1st Cir. 1975) ......... 7

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

i a ac cael ates 7,8

Blanchard v. Engine & Gas Compressor Services,

Inc. , 575 F.2d 1140 (5th Cir. 1978)..............cccccccceceeceeeeees 7

Boatel, Inc. v. Delamore, 379 F.2d 850 (5th Cir.

Sree icerieniasiihaniieninieitiesinlchiatesearnieiisinnta hiatal aiatilineal alesis 19

Burks v. American River Transp. Co., 679 F.2d 69

I italiani iti caataaaial tinal 7

Cabral v. Healy Tibbits Builders, Inc., 128 F.3d

Ener 15

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

City of Los Angeles v. United Dredging Co., 14 F.2d

I i acta lial 10

Cook v. Belden Concrete Products, Inc., 472 F.2d

I ian ll iil ll

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

GR, Bie ccranassnssasccnsssemmensenssemmesscsnsnensenmummemesensnsnsesssnts 15

DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1326

EY Se iscisceieceseicitenninnesidsidiiniieiaeasidinsiiiiiaiialie 2, 4, 11, 12, 17

Ellender v. Kiva Constr. & Eng’g, Inc., 909 F.2d 803

SE I isin inniainsientan dient sisadiictatianitinieitaiidariditaiitheaniiaiinaiinits 8

Ellis v. Eastern Dredging Co., 206 U.S. 246 (1906)............ 7

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

iv

TABLE OF AUTHORITIES — Continued

Page

Estate of Wenzel v. Seaward Marine, Inc:;, 709 F.2d

CED SI hcsccuecsecsnsenisnsusnsnenenteinennsnnnssenenenel 9, 10

Figueroa v. Campbell Industries, 45 F.3d 311 (9th

Sn TI ncneuicsionndintiennssenccsenisiniescndensyabbisbnenaiumpenimnmscsneed 19

Gianfala v. Texas Co., 350 U.S. 879 (1955) ..............ccceeeees 11

Gipson v. Kajima Eng. and Const., Inc., 972 F.Supp.

Se GI, Be i ccecssscsesssscccesnsssessessssssnscsnssessassneeees 2,19

Griffith v. Wheeling Pittsburgh Steel Corp., 521

ee ED I ciiersrntnitensnemnncsielansnneisntenecencecs 10

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

ee TE 11

Grubart v. Great Lakes Dredge & Dock, 513 U'S.

Ba ae ccnssnssentnssnsennnenssenciemmmneiemniemens 12,13

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

eal nusresennssseinmnmmmpaipeienensimenepaiameeninaiemnel 3, 14, 20

Hatch v. Durocher Dock & Dredge, Inc., 56 F.3d 545

SEITE TIE consiseccuninntennscnntemecmenitenenmnaienl 4,12

Heise v. Fishing Co. v. Alaska, Inc., 79 F.3d 903 (9th

Eu SEITE cninsessticnenentansiennneennentiisasneenmentnendiibetebinnnaninentl 15

Hicks v. Ocean Drilling and Exploration Co., 512

F.2d 817 (5th Cir. 1975), cert. denied, 423 U.S.

IEEE a elle ocnancncevennietsniieinbineptensenieeieneneneniiensmennscinaremnames 7

Hill v. Diamond, 311 F.2d 789 (4th Cir. 1962)................... 10

Holland v. Allied Structural Steel Co., Inc., 539

F.2d 476 (5th Cir. 1976), cert. denied, 429 US.

EU TETET UIE Ui iceneniseenetennavatetatenniivenscienbiniprmenenensieiiiatenmesenns 4

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

NEES Glee inrnncnsesnnnimenmnensnssenssseinninninimneed 4,9

TABLE OF AUTHORITIES - Continued

: Page

Johnson v. Continental Grain Co., 58 F.3d 1232

I inciiata ia eins ecraarincatia celta intaminariemnncineauainaiiinens 4

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

I I a nericereneicitiianinlinieiinenrdaiael 4, 5, 10

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S.

Sa PUITIITTT itnciintiierdetarrsersreniiiarinieeneaiernaaeaadeeatianiaiaiiaidiiiamemeinds 17

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

I nsciidehanianiatiaiadiaitinnenaaatiaiantenineeeeineniinienaneaiiatemaial 9, 10, 17, 18

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

ey GE CE cnccneciccnniunensnnenebinnintinmennianienes 4

McCarthy v. The Bark Peking, 716 F.2d 130 (2nd

SEY Se niciiacrinisetinndendegiahadaleintenmuemiaiaitetidiainineniattinineimaieieitetanie 18

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

ITT ta tcinsicniaaiaieiahiieaadiiaainennamniaeiicenl 3, 5, 14, 17, 19

McKinley v. All Alaskan Seafoods, Inc., 980 F.2d

eI ais cticaa inate ditireeialanaiiiniinaeaiadiatiaiiiieieate 11

Manuel v. PA.W. Drilling Well Service, Inc., 135

PN icine cian 16

Martinez v. Signature Seafoods, Inc., 303 F.3d 1132

SI UT cicrteetorsterirraneematninntcastinssiiadiiaubsinenetienietial 2, 10, 16

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)................. 7

Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603 (1st

EE 17, 18

Norton v. Warner Co., 321 U.S. 565 (1944).........00ccccccc eee 6

Offshore Co. v. Robison, 275 F.2d 769 (5th Cir.

Siri iasssiadiocmanenaenienineninmnsiniaiabeniicineiaanttiitieppemepeamarameametinenies 7

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

ee GEE SITE crnennnscensannncapnasseenniensnspemesimnnenenmsenenmnessi 10

vi

TABLE OF AUTHORITIES - Continued

Page

Reeves v. Mobile Dredging & Pumping Co., 26 F.3d

RES 4,11

Senko v. LaCrosse Dredging Corp., 352 U.S. 370

TIT eshssensiaitenacasinaanatarnisiiaiiiieaaciaiettsia tianlian iniiainaaiitaeas 12, 13

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

GE TED ‘ernaieenssecenstarentnieenenbencnnieemeneninbictaimneiete 19

Simms v. Valley Lines, Inc., 709 F.2d 409 (5th Cir.

SU liecictaen betaine ihre sitar 4,19

Southwest Marine, Inc. v. Gizoni (“Gizoni I”), 502

Ey ie Se cncrecccnenenvcsnstsemientncesnenntnienmesencnniec . passim

Southwest Marine, Inc. v. Gizoni (“Gizoni II”), 56

F.3d 1139 (9th Cir. 1905)..............cccccccccsss0000000. 4,9, 10,12

Stephenson v. McLean Const. Co., 863 F.2d 340 (4th

Sy SUTar i cacsncistetihtunteaniehasethiataeaeainiennindteaniarianlietiniidianttaiineanats 4

Stewart v. Dutra Const. Co., Inc. (“Stewart I”), 230

i innaniacariericiieieidilRiniciiatiaiiniel 3, 6, 12

Tonnensen v. Yonkers Contracting Co., 82 F.3d 30

I, Ta inctcsniniisssehtrraiatidenstinsinhineitialtiieiteatasiastieiiintiaaiiaiel 9, 16,19

West v. United States, 361 U.S. 118 (1959)..............ccccccceee 11

FEDERAL STATUTES

EI Tt aticrcncenibescsstncedntinnanensiieintinbieiinmeniisseiiemeiinens 1

LB ST ere eeer era ane 6, 7, 10, 18

ES nana Sena e aeer eT ae 6

TTT en ee ee ED 6

i icitaiait na cat haar aiecenaeaeiinasiaeit italiani iemiatiaaien 6

BP ee © GEE canccesnesnenssnsssncssmesssenenssssvenascssesaneennieneess 6

Vii

TABLE OF AUTHORITIES — Continued

Page

ees Ub ttt ncccncenevensnensnnmnecenenpennennninemecemnnniommeenent 6

Be ee Se cncncvcerensnevscscesensssuenstensnensnennneememenesenenn 6

26 U.S.C. § 5688(C). 00...» ieakaelaiataniaaiaiiienneen 6

ee le CO GOI cxceccsenccnccsersnecesenmmmenenessssneemseien 3

ee 17

Be Es GIT cxccrnonccenesnesnentenessahensetoretenemeesemennmanenneans 17

Be IE Ut TIT scrcicernptneesnemeeesenrenennenssemmmpenenenananens 6

EY ener 6

ey Oe IIIT cxrcescsninesesnnsnmsescnsesenscsnicenmnemeaentenanensemeness 6

Hey EID CUTE snncerecnesnsneneunssdennanenenentueseenensesiennsenmseneeess 6

II STITT oss snr crersnpedeninponnsennninineniasintionimsenetens 6

ee TD Ua IITITITITTED ccscrtisnnsnnsecnncnnnnnsevesenvensesnneenesnsansssoentenss 6

| TEN aE 6

ee 6

ee te GIN, cxcecescenecenecensvcnscntnscnnssnmmensnssnecgenets 13

ES i till hictinsncnnenenseenansntiniterencccnmnnistensnensnsnsnensmnibensonesees 6

se BE cctesrusnctenssesnstentneccssesncsessectnnsenssecetesosneenies 6

III TUTTI ccocnnerccngnnsgniedencecnssesnsetemnesssmtaimensnntieines 6

a ey tit ei icreninenstsinsnsnnentmensemecnsenonnntnmssentensnsssnntennssemeesets 6

er ee SP crasncnnucecccsnssuncccsnscnctusanensnecsennnensnsnenens 6

49 U.S.C. § 787(a) .............064: busdpenenensneanesennnesonssensseutemneseanees 6

ey ED censsennscscecensenescscnsnevemanecesessnees Manne 6

viii

TABLE OF AUTHORITIES - Continued

STATE CASES

Allen v. Mobile Interstate Piledrivers, 475 So 2d 427

SE Cent cciecisnecindninndtsinnnnimtnndennsinianigns ese algnaiamann 4

Becker v. Dillingham Construction Pacific, Ltd.,

2001 AMC 1376 (D.C.Haw. 2001) ..............ccceeeeeeeeeeeeeeees 19

Gault v. Modern Continental /Roadway Const. Co.,

Inc. J.V., 100 Cal.App.4th 991, 123 Cal.Rptr.2d

Ee ae ee ee 2, 14, 15, 20

Hutchins v. Juneau Tanker Corp., 28 Cal.App.4th

493, 33 Cal. Rptr.2d 542 (1994) ............cccccccecscsessssscseees 2

Keith v. S.S. Goldstone, 81 Cal.App.3d 699, 146

I: Gira CRI cccccncenescninsnstsinicneninenmeninisnesamennscsssesen 2

Maloney v. State, 141 N.Y.S.2d 207 (N.Y. Ct. Cl.

1955), aff'd, 154 N.Y.S.2d 132, 2 A.D.2d 872,

aff'd, 165 N.Y.S.2d 465, 144 N.E.2d 364, 3 N.Y.2d

Si eI hieesinhdennisesnenniashiacenennnnniteiiinnatidiiininniamemimegnemmmnees 5

O’Bryan v. Folk Const. Co., 594 So.2d 900 (La.App.

Soucie v. Trautwein Bros., 275 Cal.App.2d 20, 79

nS Sed eI cncccvicnnensanennnsnnrenstpinninonsennmmtiuecansenen 4

Spears v. Kajima Eng. & Const. Co., 101

Cal.App.4th 466, 124 Cal.Rptr.2d 97 (2002).............. 2,12

OTHER AUTHORITIES

Edwin J. Bull, Seaman Status Revisited: A Practi-

cal Guide to Status Determination, 6 U.S.F. Mar.

eS ll

ix

TABLE OF AUTHORITIES - Continued

David W. Robertson, The Law of Seaman Status

Clarified, 23 J.Mar.&Com. 1, 14-15 (1992)............:::cc00 8

Thomas J. Schoenbaum, Admiralty and Maritime

Law (3rd ed. 2001) Vol.1, § 6-9, p. 284............0000 2,9, 17

1

INTEREST OF AMICUS CURIAE

This brief is being filed, with the consent of Petitioner

Willard Stewart, on behalf of the University of San Fran-

cisco Maritime Law Journal (“USFMLJ”). The USFML.J is

a non-profit, student-run law journal affiliated with the

University of San Francisco School of Law.’ It publishes a

biannual legal periodical which comments exclusively on

maritime law. That periodical reaches subscribers both

here and abroad and publishes articles submitted by

students, professors and practitioners from all across the

country. The USFMLJ has published several notes and

comments about the Jones Act, 46 U.S.C.A. § 688, and

believes that this case presents an issue whose resolution

is vital to the uniform interpretation and efficient admini-

stration of that statute.

SUMMARY OF ARGUMENT

This Court should grant Willard Stewart’s petition for

certiorari to resolve a stubborn conflict over the meaning

of the term “vessel.” That conflict not only divides the

lower federal courts, it has spawned ancillary rifts among

the derivative state court decisions.

State courts exercise concurrent jurisdiction over

Jones Act cases under the so-called “reverse Erie doctrine,”

’ This brief was prepared on behalf of the USFMLJ by its counsel.

It was not authored, in whole or in part, by counsel ior any party. No

person or entity other than the USFMLJ, or its counsel, made a

monetary contribution to the preparation or submission of the brief.

Though the USFMLJ is affiliated with the University of San Francisco

School of Law, this brief does not necessarily reflect the views of the

University of San Francisco.

2

whereby all substantive issues are governed by federal

maritime law in the interests of uniformity. Hutchins v.

Juneau Tanker Corp., 28 Cal.App.4th 493, 499, 33

Cal.Rptr.2d 542 (1994). Here in California, the State Court

of Appeal has traditionally followed the maritime decisions

of the Ninth Circuit so that “the same rules will be applied

in federal and state courts in California.” Keith v. S.S.

Goldstone, 81 Cal.App.3d 699, 704 (1978). But that State’s

Second District Court of Appeal recently deviated from

this tradition by adopting the First Circuit’s holding in

DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1326 (1st Cir.

1992) (en banc). See, Spears v. Kajima Eng. & Const. Co.,

101 Cal.App.4th 466, 475, 124 Cal. Rptr.2d 97 (2002). State

and federal courts in California now apply different rules

for identifying the water craft that qualify as vessels

under the Jones Act. Compare Spears with Martinez v.

Signature Seafoods, Inc., 303 F.3d 1132, 1136 n.2 (9th Cir.

2002). Worse, they are entering inconsistent judgments in

cases which are materially indistinguishable. Compare

e.g., Gipson v. Kajima Eng. and Const., Inc., 972 F.Supp.

537, 542-43 (C.D.Cal. 1997) (unpowered crane barge

deployed to repair bridge could not be vessel) with Gault v.

Modern Continental/Roadway Const. Co., Inc. J.V., 100

Cal.App.4th 991, 1005, 123 Cal.Rptr.2d 85 (2002) (unpow-

ered crane barge deployed to repair bridge could be ves-

sel). “With this surfeit of doctrine to choose from, it is not

surprising that there are many close cases on vessel status

— approaching the point of arbitrariness.” Thomas J.

Schoenbaum, Admiralty and Maritime Law (3rd ed. 2001)

Vol.1, § 6-9, p. 284.

This case presents an opportunity to ameliorate those

arbitrary results with a much needed uniform rule. It

would also allow this Court to finish the work it began

during the 1990’s when it took the Jones Act in hand and

3

ruled that: “The inquiry into seaman status is fact specific;

it will depend on the nature of the vessel and the em-

- ployee’s precise relationship to it.” McDermott Int'l. v.

Wilander, 498 U.S. 337, 356 (1991). The four opinions this

Court handed down to elaborate that “precise relationship”

not only clarified the distinction Congress drew between

“sea-based workers” and “land-based workers,” id. at 353-

54, they spelled out the “essential elements” of seaman

status. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995);

Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554

(1997); see also, Southwest Marine, Inc. v. Gizoni (“Gizoni

I”), 502 U.S. 81 (1991).

But those four opinions did not get an opportunity to

address the question of vessel status. To quote the decision

below, “they have left the lower courts to fret, largely

unguided, over what is or is not a vessel in navigation.”

Stewart v. Dutra Const. Co., Inc. (“Stewart I’), 230 F.3d

461, 466 (1st Cir. 2000), Appendix B at App. 21. All this

fretting has split the circuits, estranged the Jones Act

from the Longshore and Harbor Workers Compensation

Act (“LHWCA”),’ and perpetuated the notorious “zone of

uncertainty” which lurks at the borderline between those

two statutes. The Petition presents an opportunity to bind

up the conflicts, bring the Jones Act back in step with the

LHWCA, and alleviate some of the uncertainty still

besetting the maritime workers “who must choose whether

and by what means they will pursue remedies that in

substantive theory are perfectly mutually exclusive (the

Compensation Act, which for present purposes applies to

all but seamen, and the Jones Act, which applies only to

* 33 U.S.C. §§ 901 et seq.

4

seamen), but which seem in practice to frequently overlap

each other’s borders.” Simms v. Valley Lines, Inc., 709 F.2d

409, 411 (5th Cir. 1983).

ARGUMENT

I. The Court should accept certiorari to bind up

the conflicting definitions which the lower

courts have applied to the term “vessel” with a

much needed uniform rule

The Jones Act permits “[aJny seaman injured in the

course of his employment” to sue his employer for

negligence. Because Congress did not define who is or is

not a “seaman,” the courts have had to make that

determination for themselves. Jd. at 343-51. Over the

years, no fewer than tén’ of the eleven U.S. Circuit Courts

have weighed in on the question. Forced to make an

independent determination of the conflicting federal

principles, state courts have added their constructions to

this already crowded corner of the law.‘ The resulting

* See, DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir.

1992); Latsis v. Chandris, Inc., 20 F.3d 45 (2nd Cir. 1994), aff'd, 515

U.S. 347 (1995); Reeves v. Mobile Dredging & Pumping Co., 26 F.3d

1247 (3rd Cir. 1994); Stephenson v. McLean Const. Co., 863 F.2d 340

(4th Cir. 1988); Holland v. Allied Structural Steel Co., Inc., 539 F.2d 476

(5th Cir. 1976), cert. denied, 429 U.S. 1105 (1977); Hatch v. Durocher

Dock & Dredge, Inc., 56 F.3d 545 (6th Cir. 1994); Johnson v. John F.

Beasley Const. Co., 742 F.2d 1054, 1063 (7th Cir. 1984); Johnson v.

Continental Grain Co., 58 F.3d 1232 (8th Cir. 1995); Southwest Marine,

Inc. v. Gizoni (“Gizoni IT”), 56 F.3d 1139, 1142 (9th Cir. 1995); Hurst v.

Pilings & Structures, Inc., 896 F.2d 504 (11th Cir. 1990).

* See, e.g.; Soucie v. Trautwein Bros., 275 Cal.App.2d 20 (1969) (pile

driver held seaman); O’Bryan v. Folk Const. Co., 594 So.2d 900 (La.App.

1991) (suction dredge hand held seaman); Allen v. Mobile Interstate

Piledrivers, 475 So.2d 427 (Ala.Sp.Ct. 1985) (pile driver held seaman);

(Continued on following page)

5

jurisprudence became very tangled indeed. As this Court

famously observed: ““‘We have made a labyrinth and got

lost in it.’” Wilander, 498 U.S. at 353 quoting Johnson v.

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

Cir. 1984).

In order to light the way out, the Supreme Court

accepted certiorari in four Jones Act cases during the

1990’s. The ensuing opinions “jettison[ed]” the traditional

requirement that a seaman be aboard “primarily to aid in

navigation,” Wilander, 498 at 353, emphasized that it is

the plaintiff’s connection to a vessel and not his or her

particular job that is determinative, Gizoni J, 502 U.S. at

88, rejected a “snapshot” or “moment of the injury” ap-

proach in favor of a scrolling analysis which assesses the

“total circumstances” of the plaintiff's overall employment,

Chandris, 515 U.S. at 363, “eschew[ed] the temptation to

create detailed tests,” id. at 369, and ruled that:

{Tjhe essential requirements for seaman

status are twofold. First .. . an employee’s duties

must contribute to the function of the vessel or to

the accomplishment of its mission. . . .

Second, and most important for our purposes

here, a seaman must have a connection to a ves-

sel in navigation (or to an identifiable group of

such vessels) that is substantial in terms of both

its Curation and its nature.’ Harbor Tug & Barge

Co. v. Papai, 520 U.S. 548, 554 (1997) quoting

Chandris, supra, 515 U.S. at 368.

\

Maloney v. State, 141 N.Y.S.2d 207 (N.Y. Ct. Cl. 1955), aff'd, 154

N.Y.S.2d 132, 2 A.D.2d 872, aff'd, 165 N.Y.S.2d 465, 144 N.E.2d 364, 3

N.Y.2d 356 (1956) (derrick barge hand held seaman). Each of these

holdings conflicts with the decision below.

6

But those clarifications have left one last twist in the laby-

rinth; they did not address the standard for Jones Act vessel

status. Stewart I, 230 F.3d at 466, Appendix B at App. 21.

A. The statutory rule of construction

Though the relevant porisw.:s of the Jones Act neither

use nor define the term “vessel,” many other federal

statutes do.’ Those statutes all echo the definition set forth

in the federal Rules of Construction: “The term ‘vessel’

includes every description of water craft or other artificial

contrivance used, or capable of being used, as a means of

transportation on water.” 1 U.S.C. §3 (emphasis added).

This Court cited that Rule in Norton v. Warner Co., 321

U.S. 565, 571 n.4 (1944), when it held that: “A barge is a

vessel within the meaning of the [Jones] Act even when it

has no motive power of its own, since it is a means of

* Those statutes include the Shirping Act (46 U.S.C. § 2101(45)),

the Merchant Marine Act of 1920 (46 U.S.C. § 801), the International

Navigation Rules Act of 1980 (33 U.S.C. § 1601(1)), the Inland Naviga-

tion Rules Act of 1980 (33 U.S.C. § 2003(a)), the Public Health Service

Act (42 U.S.C. § 201(i)), the Excise Taxes Act (26 U.S.C. § 5688(c)), the

Whaling Convention Act (16 U.S.C. § 916(e)), the Neutrality Act of 1939

(22 U.S.C. § 456(c)), the Navigation Act of 1974 (33 U.S.C. § 1502(19)),

the Oil Pollution Act of 1990 (33 U.S.C. § 2701(37)), the Sentencing

Reform Act (18 U.S.C. § 3667), the Communications Act of 1934 (47

U.S.C. § 153(wX1)), the Tariff Act of 1930 (19 U.S.C. § 1401(a)), the

Interstate Act against Importation and Exportation of Motor Vehicles,

Vessels and Aircraft (18 U.S.C. §533(cX3)), the Comprehensive

Environmental Response Compensation and Liability Act of 1980 (42

U.S.C. § 9601(28)), the Anti-Gambling Act (19 U.S.C. § 1081), the

Federal Ship Mortgage Insurance Act (46 U.S.C. §1271(b)), the

Contraband Seizure Act (49 U.S.C. § 787(a)), the Antifouling Paint

Control Act of 1988 (33 U.S.C. § 2402(11)), the Interstate Commerce Act

(49 U.S.C. § 10102(28)), the Submarine Cable Act (47 U.S.C. § 30) and

the Federal Water Pollution Control Act (33 U.S.C. § 1321(aX3)).

7

transportation over water.” Jd. at 571. See also, Ellis v.

Eastern Dredging Co., 206 U.S. 246, 259 (1906) (holding

dredge “vessel” under 1 U.S.C. § 3).

At one time, the statutory vessel definition was also

followed by the Fifth Circuit, Burks v. American River

Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982), and perhaps

even by the First. See, Bennett v. Perini Corp., 510 F.2d

114, 116 (1st Cir. 1975) (“To be a vessel, the purpose and

business must to some reasonable degree be the transpor-

tation of passengers, cargo, or equipment from place to

place across navigable waters.”). This is hardly surprising.

“Maritime tort law is dominated by statute,” and those

statutes must be uniformly applied. Miles v. Apex Marine

Corp., 498 U.S. 19, 36 (1990). Jd. But 1 U.S.C. $3 no

longer commands such application.

B. The “floating work platform doctrine”

and the narrow vessel standards of the

Second, Fifth and Eleventh Circuits

While Judge Wisdom was still on the bench, the Fifth

Circuit stood by the statutory definition, see, Burks, supra,

and accorded Jones Act vessel status to a whole armada of

“special purpose structures not usually employed as a

means of transportation.” Offshore Co. v. Robison, 275 F.2d

769, 779-80 (5th Cir. 1959); see also, Blanchard v. Engine

& Gas Compressor Services, Inc., 575 F.2d 1140, 1142 (5th

Cir. 1978); Hicks v. Ocean Drilling and Exploration Co.,

512 F.2d 817 (5th Cir. 1975), cert. denied, 423 U.S. 1050

(1976). But in 1984, that Circuit launched the “floating

work platform doctrine.” Bernard v. Binnings Constr. Co.,

741 F.2d 824 (5th Cir. 1984).

Based on three “non-requisite criteria” and nine free-

floating “factors,” the floating work platform doctrine

denies vessel status to any water craft that is not used

primarily for transportation. Ellender v. Kiva Constr. &

Eng’g, Inc., 909 F.2d 803, 806 (5th Cir. 1990). The “non-

requisite criteria” inquire whether the craft 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 function; the free-floating factors ask if it

had (1) navigational aids, (2) a raked bow, (3) lifeboats or

other life-saving equipment, (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, Bernard, 741 F.2d at 831-832.

Commentators have criticized this approach as

“prolix,” “extremely flabby” and given to arbitrary results.

David W. Robertson, The Law of Seaman Status Clarified,

23 J.Mar.&Com. 1, 14-15 (1992).

For example, in Sharp v. Johnson Bros. Corp.,

[917 F.2d 885 (5th Cir. 1990)], the court reversed

a summary judgment holding that two spud

barges used as pile driving barges and two ordi-

nary flat barges used as work platforms were not

vessels; however in Ellender v. Kiva Construction

- & Engineering, Inc., supra, the court upheld

summary judgment holding that the pile driving

barges in question were not vessels, but only

construction platforms. The distinction between

these and many of the other vessel cases is with-

out theoretical significance either based upon the

objective characteristics of the structures them-

selves or the relative perils faced by the workers

in question. This area of the law cries out for fun-

damental reform.

Schoenbaum, supra §6-9, p. 284. The work platform

doctrine has nonetheless been adopted by the Eleventh

Circuit, Hurst v. Pilings & Structures, 896 F.2d 504 (11th

Cir. 1990), and, in a slightly modified form, by the Second

Circuit. Tonnensen v. Yonkers Contracting Co., 82 F.3d 30,

36 (2nd Cir. 1996).

C. The broader vessel standards of the

Third, Fourth, Seventh and Ninth Circuits

In contrast to the work platform doctrine, the Ninth

Circuit holds “that unusual-looking craft whose purpose is

not the transportation of persons or things can be consid-

ered vessels under the Jones Act.” Southwest Marine, Inc.

v. Gizoni (“Gizoni IT”), 56 F.3d 1139, 1142 (9th Cir. 1995);

see also, Estate of Wenzel v. Seaward Marine, Inc., 709 F.2d

1326, 1328 (9th Cir. 1983). While this holding conflicts

with the standards employed by the First, Second, Fifth,

Sixth and Eleventh Circuits, it does not sit so far out on

the limb as Petitioner suggests. Petition at 14-17.

Because Kathriner v. UNISEA, Inc., 975 F.2d 657 (9th

Cir. 1992), ruled that “floating structures are not classified

as vessels in navigation if they are incapable of independ-

ent movement over water, are permanently moored to

land, have no transportation function of any kind, and

have no ability to navigate[,]” id. at 660, the Petition

assumes “every floating structure qualifies as a Jones Act

vessel” in the Ninth Circuit “unless it meets al! four

* We disagree with Petitioner’s understanding of the Ninth Circuit

“test,” but endorse his prayer for certiorari. The various interpretations

to which the lower court decisions are susceptible is further evidence of

the need for a uniform rule.

10

Kathriner criteria.” Petition at 15. But the criteria listed in

Kathriner were offered as a case specific rationale, not a

general rule. “There is no generalized test in the Ninth

Circuit for determining whether a craft is a vessel in

navigation[.]” Martinez, 303 F.3d at 1135. Its decisions are

nonetheless consistent with 1 U.S.C. § 3.

The Ninth Circuit only denies vessel status to water-

craft that have no transportation function of any kind.

Kathriner, 975 F.2d at 660-61. It entrusts a jury with the

status of any contrivance capable of being used as a means

of transportation over water. Martinez, 303 F.3d at 1136-

37 (fish processing barge); Gizoni II, 56 F.3d at 1142

(shipyard work platform); Estate of Wenzel, 709 F.2d at

1327-28 (submerged cleaning and maintenance platform).

Since they necessarily transport their crew and equipment

over water, dredges like the Super Scoop have always been

treated as vessels in the Ninth Circuit. Ramos v. Universal

Dredging Corp., 547 F.Supp. 661, 663 (D.Ha. 1982); see

also, City of Los Angeles v. United Dredging Co., 14 F.2d

364 (9th Cir. 1926) (citing 1 U.S.C. § 3).

This ecumenical approach is also followed by the

Seventh Circuit, Johnson, 742 F.2d at 1063 (“Any floating

structure, including those designed for special purposes, is

a ‘vessel’... so long as the structure at some time serves

as a means of transportation on water.”), the Fourth

Circuit, Hill v. Diamond, 311 F.2d 789, 791 (4th Cir. 1962)

(“It is well established that many special purpose craft,

such as dredges, floating derricks and barges equipped for

special purposes or operations are vessels within the

meaning of the Jones Act[.]”), and the Third Circuit.

Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37

(8rd Cir. 1975) (upholding Jones Act vessel status for a

dumb barge because “the Supreme Court has extended

11

that remedy so as to permit claims brought for injuries

incurred in the construction of a “Texas Tower,” Grimes v.

Raymond Concrete Pile Co., 356 U.S. 252 (1958) and an

off-shore oil rig, Gianfala v. Texas Co., 350 U.S. 879

(1955).”). See also, Reeves v. Mobile Dredging & Pumping

Co., supra (holding dredge was vessel for Jones Act pur-

poses).

D. The “actual transit” test and the restrictive

vessel standards of the First and Sixth Cir-

cuits

Building on the work platform doctrine,’ misinterpret-

ing the phrase “in navigation,” and misreading the

transcript in Gizoni I,’ the First Circuit has ruled that, “if

” DiGiovanni relies heavily on dictum suggesting “ ‘that a structure

whose purpose is not navigation or commerce upon navigable waters

may nonetheless satisfy the Jones Act’s vessel requirements if, at the

time of the worker’s injury, the structure was actually in navigation.’”

959 F.2d at 1123 quoting Bernard, 741 F.2d 829 (original emphasis).

* The phrase “in navigation” is “used in its broad sense and is not

confined strictly to the actual navigating or movement of the vessel.”

Johnson, 742 F.2d at 1063; see generally, Edwin J. Bull, Seaman Status

Revisited: A Practical Guide to Status Determination, 6 U.S.F. Mar. L.J.

547, 582-84 (1994): The distinction is between a “dead ship” and an

operational one. See, Chandris, 515 U.S. at 372-76. While a ship in

mothballs is “out of navigation” even when it’s being towed across the

Atlantic, see, West v. United States, 361 U.S. 118, 123-24 (1959), and an

unfinished ship has not yet “entered navigation” even though it has

already voyaged from New Orleans to Tacoma, see, McKinley v. All

Alaskan Seafoods, Inc., 980 F.2d 567, 568 (9th Cir. 1992), an operating

vessel with a crew aboard remains “in navigation” even when it is

sitting in dry dock. See, Chandris, 515 U.S. 347; Cook v. Belden

Concrete Products, Inc., 472 F.2d 999, 1001-02 (5th Cir. 1973).

* DiGi | dieti ishes Gi iI by ti the plaintiff in

that case was injured aboard a platform which was “engaged in

(Continued on following page)

12

a barge, or other float’s ‘purpose or primary business is not

navigation or commerce,’ then workers assigned thereto

for its shore enterprise are to be considered seamen only

when it is in actual navigation or transit.” DiGiovanni,

959 F.2d at 1123 (original emphasis). This rule is even

more restrictive than the work platform doctrine, 959 F.2d

at 1128 (Torruella, J., dissenting), and has been adopted

by both the Sixth Circuit, Hatch v. Durocher Dock &

Dredge, Inc., 33 F.3d 545, 547-48 (6th Cir. 1994), and the

California Court of Appeal. Spears, 101 Cal.App.4th at

475. It is also the basis for the decision below. Stewart I,

230 F.3d at 467, Appendix B, p. 22.

E. The vessel standards of the First, Second,

Fifth, Sixth and Eleventh Circuits cannot

be reconciled with the decisions of this

Court

1. The floating work platform doctrine is

in tension with this Court’s decisions

in Senko, Gizoni I and Grubart

The work platform doctrine cannot be reconciled with

this Court’s opinions in Gizoni I, supra, Senko v. LaCrosse

Dredging Corp., 352 U.S. 370, 371 (1957), or Grubart v.

Great Lakes Dredge & Dock, 513 U.S. 527 (1995). Senko

upheld the Jones Act verdict of a “handyman” who was

injured on a levee in Illinois while serving a dredge

“which, though afloat, served as a stationary earth remov-

ing machine.” 352 U.S. at 371. Gizoni I reversed a defense

transportation” at the time and place of his injury. 959 F.2d at 1124. In

fact, that platform was then and there “secured to the end of a floating

dry dock[.}” Gizoni I, 56 F.3d at 1140 n.1.

ee. se EE Ss

13

summary judgment and remanded the putative Jones Act

claims of a shipyard hand who spent most of his time

working aboard a fleet of “floating platforms.”

These platforms by themselves have no power,

means of steering, navigation lights, navigation

aids, or living facilities. They are moved about by

tugboats, which position the platforms alongside

vessels under repair at berths or in drydock at

Southwest Marine’s shipyard or at the nearby

naval station. The platforms are used to move

equipment, materials, supplies, and vessel com-

ponents around the shipyard and onto and off of

the vessels under repair. Once in place, the

plaftorms support ship repairmen engaged in

their work.

502 U.S. at 83-84. While the craft in Senko and Gizoni I

ferried workers and equipment as an incident of their

overall missions, there is nothing to suggest that they

were used primarily for transportation. This Court has

never made that a prerequisite of vessel status.

In Grubart, for example, it was obliged to consider the

vessel status of a derrick barge deployed “to replace

wooden pilings clustered around the piers of several

bridges spanning the Chicago River.” 513. U.S. at 530.

That case concerned the notorious pile driving mishap that

flooded a utility tunnel beneath the Chicago River and

blacked-out several adjoining skyscrapers. This Court

accepted certiorari to decide whether admiralty enjoyed

jurisdiction over such a calamity under the Vessel Owner’s

Limitation Act. 46 U.S.C. §§ 181 et seg. One of the thresh-

old issues was whether the accident barge was a vessel in

navigation. “Even though the barge was fastened to the

river bottom and was in use as a work platform at the

times in question,” the Court allowed as how no one could

14

“seriously dispute the conclusion of each court below that

the Great Lakes barge is, for admiralty tort purposes, a

‘vessel.’” Jd. at 355.

2. The actual transit test is in tension with

this Court’s decisions in Wilander,

Chandris and Harbor Tug

The actual transit test employed by DiGiovanni and

the decisions below can’t be reconciled with the opinions of

this Court. Senko, once again, upheld seaman status for an

Illinois dredge hand injured in the service of “a stationary

earth removing machine.” 352 U.S. at 371. There is noth-

ing in that opinion to imply this floating machine wasn’t

stationary at the time of the injury. More importantly, the

actual transit test not only resuscitates the “aid to naviga-

tion” requirement this Court jettisoned in Wilander, 498

U.S. at 353, it is inconsistent with Chandris and Harbor

Tug. Under those opinions, a plaintiff’s Jones Act status

must be determined, not from a fleeting “snapshot” of his

duties at the moment of injury, but “‘in the context of his

entire employment’ with his current employer.” Chandris,

515 U.S. at 366; Harbor Tug, 520 U.S. at 558 (1997). The

idea is “to avoid engrafting upon the statutory classifica-

tion of a ‘seaman’ a judicial gloss so protean, elusive, or

arbitrary as to permit a worker to walk into and out of

coverage in the course of his regular duties.” Chandris,

515 U.S. at 363. The actual transit test coats the standard

for vessel status with just such a gloss. The California

Court of Appeal’s decision in Gault provides the perfect

case in point.

15

Though that decision borrowed indiscriminately from

the conflicting Jones Act jurisprudence of three different

circuits,” it took special pains to distinguish DiGiovanni.

Gault allowed a jury to determine the seaman status of a

pile driver employed aboard a “flexi-float barge” deployed

to build a bridge over a flood control channel. 100

Cal.App.4th at 996. The barge had no independent means

of propulsion and was lying at anchor at the time of the

accident. Jd. It consisted of three 10- by- 60-foot sections

that could be reconfigured in various ways. Jd. The plain-

tiff was injured while reconfiguring the barge when the

section on which he was standing capsized after it had

been separated from the others. Jd. The State Court of

Appeal found a triable issue of material fact as to whether

the capsized section had been “in transit” at the moment of

the accident. Jd. at 1002. We submit that, after Chandris,

a special purpose craft cannot oscillate in and out of vessel

status (or carry its crew in and out of Jones Act coverage)

at the uncoupling or re-coupling vf a flexifloat.

* At various points in its opinion, the State Court of Appeal cites

authority from the First Circuit, DiGiovanni, supra, the Fifth Circuit,

In re Endeavor Marine, Inc., 234 F.3d 287 (5th Cir. 2000), and the Ninth

Circuit. Heise v. Fishing Co. v. Alaska, Inc., 79 F.3d 903 (9th Cir. 1996);

Cabral v. Healy Tibbits Builders, Inc., 128 F.3d 1289 (9th Cir. 1997);

Delange v. Dutra Const. Co., Inc., 183 F.3d 916 (9th Cir. 1999). That

authority is in conflict. Unlike DiGiovanni, Endeavor Marine and

Delange allowed Jones Act claims for workers who were injured aboard

anchored crane barges.

16

F. The conflict between the lower courts

shows no sign of abating

Although the Fifth Circuit has recently queried

whether the work platform doctrine should sail on in the

wake of this Court’s decision in Gizoni J, it has not ex-

pressly abandoned that doctrine. See, Manuel v. PA.W.

Drilling Well Service, Inc., 135 F.3d 344, 347-50 (5th Cir.

1998).” But the Ninth Circuit has renounced it. Martinez,

303 F.3d at 1136-37. That Circuit has also rejected DiGio-

vanni. Id. at 1136 n.2. So has the Second Circuit. Tonnen-

sen, 82 F.3d at 34. But the First Circuit refuses to abandon

ship. 230 F.3d at 467, Appendix B at 23. Until these

conflicts have been resolved, the construction of the Jones

Act will continue to be uncertain, and the lower courts will

have to re-examine, narrow or distinguish all the conflict-

ing authority on point over and over again.

" The plaintiff in Manuel was an oil field hand injured aboard a

spud barge anchored over an abandoned well head. The trial court had

relied on the work platform doctrine to dismiss his Jones Act claims on

the ground that his spud barge was not a vessel. The Fifth Circuit

reversed and questioned the continued vitality of the work platform

doctrine after noting that “many of our work platform cases were

decided before the Supreme Court’s decision in Southwest Marine, Inc.

v. Gizoni, where the Court concluded that genuine issues of material

fact existed ‘regarding whether the floating platforms [upon which

plaintiff Gizoni had worked] were vessels in navigation.’” Jd. at 350 n.8

(quoting Gizoni I, 502 U.S. at 92). As the decision observed, “special

purpose craft such as submersible drilling barges, jack-up rigs, and

spud barges remain stationary while performing work, yet retain their

vessel status.” Jd. at 351.

17

II. This Court should also accept certiorari to

bring the interpretation of the Jones Act back

in step with the LHWCA

Although the relevant provisions of the Jones Act do

not use the term “vessel,” the LHWCA does. That statute

specifically excludes “a master or a member of a crew of

any vessel” from its protection. 33 U.S.C. § 902(3)(G).

Since that phrase was designed to bar Jones Act benefici-

aries from LHWCA benefits, it is not only synonymous

with the term “seaman,” it codifies “the key requirement

for Jones Act coverage[.]” Wilander, 498 U.S. at 347;

Chandris, 520 U.S. at 553. One might therefore assume

that the term “vessel” has the same meaning under the

LHWCA as it does under the Jones Act. But according to

the lower courts: “The LHWCA definition of ‘vessel’ is

significantly more inclusive than that under the Jones

Act.” Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 607

(1st Cir. 1996). Most maritime workers therefore append

an alternative fourth cause of action for vessel owner

negligence” to the “trilogy of heightened legal protections”

traditionally pled under the Jones Act.” See e.g.,

Kathriner, 975 F.3d 662-63; DiGiovanni v. Traylor Bros.

(“DiGiovanni II”), 97 F.3d 624 (1st Cir. 1996). Quite apart

“ Though LHWCA compensation is ordinarily an injured water-

front worker’s exclusive remedy against his or her employer, 33 U.S.C.

§ 905(a), that rule does not apply to a “dual-capacity” defendant. See

generally, 1 Schoenbaum, supra, § 7-10, pp. 449-50. A dual capacity

defendant can be liable for both workers’ compensation and vessel

owner negligence. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523,

530-31 (1983); 1 Schoenbaum, supra, p. 450.

* The Jones Act carries with it the rights to sue for negligence,

unseaworthiness and maintenance, cure and found. Chandris, Inc. v.

Latsis, 515 U.S. 347, 354 (1995).

18

from the inefficiency and expense these alternative claims

beget, they beg the question: Why should courts employ

different standards for determining what is or is not a

vessel under the Jones Act and the LHWCA?“

Most lower courts employ the statutory definition in 1

U.S.C. §3 to determine whether a floating structure is

“vessel” under the LHWCA. McCarthy v. The Bark Peking,

716 F.2d 130, 133-34 (2nd Cir. 1983); Kathriner, 975 F.2d

at 662; Morehead, supra; DiGiovanni v. Traylor Bros., 830

F.Supp. 106, 108-109 (D.R.I. 1993): Since this Court has

used 1 U.S.C. § 3 to uphold vessel status under the Jones

Act, Norton, 321 U.S. at 571 n.4, it is difficult to under-

stand why that Rule should not be universally applied.

III. The Court should finally accept certiorari to

alleviate the uncertainties still besetting

maritime workers employed at the borderline

between the Jones Act and the LHWCA

Courts and commentators have long recognized “the

difficulties faced by injured maritime workers arguably

both seamen and harbor workers who must choose

whether and by what means they will pursue remedies

that in substantive theory are perfectly mutually exclusive

(the Compensation Act, which for present purposes applies

to all but seamen, and the Jones Act, which applies only to

seamen), but which seem in practice to frequently overlap

“ The first circuit explains this disparity by noting that a Jones

Act seaman “‘must have a substantial employment-related connection

to a vessel in navigation.’” Morehead, 97 F.3d at 607 n.3 quoting

Chandris, 515 U.S. at 368 (emphasis original). But this explanation

misconstrues the phrase “in navigation.” See n.8 supra.

19

each other’s borders.” Simms v. Valley Lines, Inc., 709 F.2d

409, 411 (5th Cir. 1983); see also, Gizoni I, 502 U.S. at 91;

Figueroa v. Campbell Industries, 45 F.3d 311, 315 (9th Cir.

1995); Boatel, Inc. v. Delamore, 379 F.2d 850, 854 (5th Cir.

1967). “Thus, despite our continued insistence that a Jones

Act ‘seaman’ and a ‘crew member’ excluded from the

Longshoremen’s Act are one and the same (in other words

that the statutes are mutually exclusive), we recognize

that in a practical sense, a ‘zone of uncertainty’ inevitably

connects the two Acts.” Simms, supra (citations omitted).

This Court eliminated much of that uncertainty when

it clarified the relationship which the Jones Act and the

LHWCA require between a vessel and a member of a crew.

Chandris, supra, 515 U.S. at 368; Wilander, 498 U.S. at

356. The conflicting standards for vessel status are the

only thing still obscuring that relationship. Most of the

inconsistent results which continue to plague this corner

of the law are attributable to that conflict. Compare e.g.,

Bennett, 510 F.2d at 116 (barge-based bridge builder could

be seaman because his barge was capable of transporting

“passengers, cargo or equipment across navigable wa-

ters”); DiGiovanni, 959 F.2d at 1121 (barge-based bridge

builder could not be seaman because his barge was not “in

transit at moment of injury”); Tonnensen, 82 F.3d at 36

(barge-based bridge builder could be seaman because there

was “some evidence” that his barge had transportation

function); Sharp, 917 F.2d at 888-89 (barge-based bridge

builder could be seaman because transportation function

of his barge was “more than incidental”); Gipson, 972

F.Supp. 537, 542-43 (barge-based bridge builder could not

be seaman because his barge was not used “primarily for

navigation and commerce”); Becker v. Dillingham Con-

struction Pacific, Ltd., 2001 AMC 1376, 1386-88 (D.C.Haw.

20

2001) (barge-based bridge builder could be seaman be-

cause his barges were capable of transportation); Gault,

100 Cal.App.4th 991, 1005 (flexifloat-based bridge builder

could be seaman because float on which he was standing

at moment of injury was uncoupled). The Court could

alleviate that uncertainty, and make it easier for employ-

ers to predict which of their workers will be covered by the

Jones Act and which will be covered by the LHWCA, see,

Harbor Tug, 520 U.S. at 558, if it accepts certiorari in this

case.

CONCLUSION

WHEREFORE the USFMLJ respectfully submits that

Willard Stewart’s petition for a writ of certiorari should be

granted.

January 7, 2004 Respectfully submitted,

JOHN R. HILLSMAN

McGUINN, HILLSMAN & PALEFSKY

530 Pacific Avenue

San Francisco, CA 94133

(415) 421-9292

Counsel for the University of

San Francisco Maritime Law

Journal, Amicus Curiae