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

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No. 03-814 LOFRice

IN THE

Supreme Court of the United States

WILLARD STEWART,

UV

DUTRA CONSTRUCTION CoO.,

Respondent.

Petitioner,

On Writ Of Certiorari to the

United States Court of Appeals

for the First Circuit

AMICUS CURIAE BRIEF OF THE

ASSOCIATION OF TRIAL LAWYERS

OF AMERICA

IN SUPPORT OF PETITIONER

DAVID S. CASEY, JR. John W. deGravelles, Esq.*

1050 31st St., N.W. 618 Main Street

Washington, DC 20007 Baton Rouge, LA 70801

(202) 966-3500 (225) 344-3735

President, * Counsel of Record

Association of Trial Attorney for Amicus Curiae

Lawyers of America

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QUESTION PRESENTED.

TABLE OF AUTHORITIES...

ii

TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICUS

CURIAE ...

SUMMARY OF THE ARGUMENT...

I.

THERE IS A NEED FOR A CLEAR

AND SIMPLE DEFINITION OF THE

TERM “VESSEL” ,

II. THE PROPOSED STANDARD FOR

Ill. THE

A JONES ACT “VESSEL”...

CONSISTENT WITH SUPREME

COURT JURISPRUDENCE...

PROPOSED TEST IS

IV. THE PROPOSED TEST IS CLEAR

AND SIMPLE AND ALLOWS FOR

PREDICTABILITY...

V. THE PROPOSED TEST TAKES INTO

CONCLUSION

ACCOUNT THE GPEAT VARIETY

OF WATERCRAFT ENGAGED IN

MARITIME COMMERCE

19

THE PROPOSED TEST FURTHERS

THE UNDERLYING POLICY OF

THE JONES ACT .

21

TABLE OF AUTHORITIES

CASES

The Arizona v. Anelich, 298 U.S. 110 (1936)............ 21

Bernard v. Binnings Const. Co., Inc., 741 F.2d 824

STII, TIIIIIITIL._....-s sssasainnsenmsenssssessocbooosscsosossesssenes 17

Butler v. Whiteman, 356 U.S. 271 (1958)...........c0c000+ 9

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

Cosmopolitan Shipping Co. v. McAllister, 337 U.S.

i 21

Cox v. Roth, 348 U.S. 207 (1955) ........cccccccceeeeeeeeeeeees 21

Davis v. Sedco Forex, 660 F. Supp. 85

SITET TI, TIED. scassnsessnsssssasqnssosoossccssoscoooooosoees 11

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

(18t Cir. 1992) (en DAN) .............0ceeeeeeeeseeeseeeeees 10, 12

Ellender v. Kiva Const. and Engineering, 909 F.2d

RNC, TITIIID....ccoccccccccscccsscsenscsscccsccoooscooseee 17-18

Ellis v. United States, 206 U.S. 246 (1907) .............. 16

Estate of Wenzel v. Seaward Marine Services, Inc.,

709 F.2d 1326 (CA9 19838) ............cccccccececeeeeeeeeeeeees 20

Feliciano v. Texaco, Inc., 2002 WL 1159700 (E.D. La.

ta en eepsannsnnsnnenennsnngeoqoaqcsssusnsess 13

iv

Fields v. Pool Offshore, Inc., 182 F.3d 353 (5% Cir.

aii hncnccnnpecctgieniiesiinnieniiidimmandiaiiiiiiaieieeeses ea 20

Fox v. Taylor Diving and Salvage Co., 694 F.2d 1349

PE: ee iatiniinntninsntinnteduibiianiiiniteidetetts ieee 20

Fuller v. Pacific Gulf Marine, Inc., 1987 WL 17234,

1998 AMC 470 (E.D. Pa. 1987) .0.........cccccccceeeeceeee 11

Gahagan Const. Corp. v. Armao, 165 F.2d 301

Se: GE tcccntnentecitnnidiniindiintinntithtal ceed 9

Gianfala v. Texas Company, 350 U.S. 879 (1955)

Pp ccenticinssiritienneiitamiahiaiilniclnataiaiiiina 8-9, 15

Gonzales v. United States Shipping Board,

DBE BTR GAIT. BODO) ccccccccccccseccccccccsecescneccees 11

Grimes v. Raymond Concrete Pile Co.,

SD es SE ED ceccneuniintiitinniccnineniininiiinaiiaiiecsiiaaas 9,15

Gumpert v. Pittman Const., Inc., 736 So. 2d 1026

es as Die hccsicaintateniitiiiasiiiiibinitemeirtaetetes ala 20

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

Gia ee hnnsenceunsenoniiniasaninanintihiceiinantialtieitinsdaibacie ta 16, 17

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

Pes Sie acecitericicsisnnieniiatinieiiaiaii dette ree 18

Jerome B. Grubart, Inc. v. Great Lakes Dredge and

Dock Co., 513 U.S. 527 (1995) ........cccccccccceseseeeeeees 14

Johnson v. John F. Beasley Construction Co.,

742 F.2d i054 (7 Cir. 1984), cert. den., 469 U.S.

ED GU ineicincrltnsicitnnanasintniiiniianiedeiniteae seat 5,11

a ee

Leonard v. Transoceanic Sedco Forex,

189 F. Supp. 2d 627 (S.D. Tex. 2002)............00000++ 11

Lewis v. Roland E. Trego & Sons, 501 F.2d 372

in ee 11

Manual v. P.A.W. Drilling & Well Service, Inc., 135

F.3d 344 (5% Cir. 1998), reversing 1996 WL

736993 (E.D. La. 1996).........cccccccccecereeeeeeeeeeeeeeenenes 18

McDermott Int'l, Inc. v. Wilander,

496 U.S. BB7 (1GO1) ....cccccccseseccccccccccccccsccccssess passim

McFarland v. Justiss Oil Co., Inc., 526 So. 2d 1206

(La. App. 1988)..........cssssseserseeseessessecsssssenssrsnenenes 13

McKay v. Offshore Specialty Fabricators, Inc.,

1997 WL 289365 (E.D. La. 1997) ............0-eceeeeeeeees 20

Melancon v. I.M.C. Drilling-Mud, 282 So. 2d 532

Miller v. International Diving and Consulting

Services, Inc., 669 So. 2d 1246 (La. App. 1996)....13

Norton v. Warner Co., 321 U.S. 565 (1944).............. 15

Offshore Co. v. Robison, 266 F.2d 769 .

(B® Clr. 19GB) ......cccsccrccsereccccssccceccccccssseseesosooes passim

Rogers v. M/V Ralph Bollinger, 279 F.Supp.92_

CBB.D. Lae. 196B).....cccccccccccccseccccsccsssccssssssccccossoosssccsess 11

(19B7)......csccccscsccesseesscesscccscccssesososossssnsosssoscoonosses 9,15

vi

Sharp v. Johnson Bros. Co., 917 F.2d 885

Ee nee ae ET 17

South Chicago Coal & Dock Co. v. Bassett,

4 eee seveeeeceseseseeD

Southwest Marine, Inc. v. Gizoni,

EE AIR Cnn een me: 14

Stewart v. Dutra Construction Co., Inc., 230 F.3d 461

RE a re 10, 13

Summerlin v. Massman Const. Co., 199 F.2d 715

i itiaiaitiiettilarninniitieannetet ileal i]

Wayne Construction, Inc. v. Lenard,

1995 WL 309188 (9% Cir. 1994) (unpubiished) ....11

Wilkes v. Mississippi River Sand & Gravel Co.,

202 F.2d 383 (6% Cir. 1953)..............ccccccececesececeeeeeee 9

STATUTES AND RULES

Be i cieitheihaiactenatdDienleiiniatiei iia ial et passim

kT ET 2

EN Ce 2,5

CE CBG, Bete 6 GOD cccccsccssncsstensscscssarictinanssstasnizassai 14

vii

OTHER AUTHORITIES

E. Benedict, AMERICAN ADMIRALTY (1850) ............00+++ 19

Hon. W. Eugene Davis, The Role of Federal Courts in

Admiralty: The Challenge Facing the Admiralty

Judges of the Lower Federal Courts,

75 Tul. L. Rev. 1355 (2001)............ccccceeceeeeeeeeeeenenes 20

Robert Force and Martin J. Norris, THE LAW OF

SEAMEN (5*® Ed. 20038) ............:ssccccccssecereeeeeeeeeeeeeenes 11

David W. Robertson, The Law of Seaman Status

Clarified, 23 J. Mar. L. & Com. 1 (1992)........... 17, 18

No. 03-814

IN THE

Supreme Court of the United States

WILLARD STEWART,

UV

DUTRA CONSTRUCTION Co.

Respondent.

Petitioner,

On Writ Of Certiorari to the

United States Court of Appeals

for the First Circuit

AMICUS CURIAE BRIEF OF THE

ASSOCIATION OF TRIAL LAWYERS

OF AMERICA

IN SUPPORT OF PETITIONER

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America

(‘ATLA”] respectfully submits this brief as amicus

curiae in this case. Letters from both parties

granting consent to the filing of this brief have been

filed with this Court.!

1 Pursuant to Rule 37.6, Amicus discloses that no counsel

for a party authored any part of this brief, nor did any person or

entity other than Amicus Curiae, its members, or its counsel

make a monetary contribution to the preparation or submission

of this brief.

2

ATLA is a voluntary national bar association

whose approximately 50,000 lawyer members

primarily represent injured plaintiffs in civil actions.

The Admiralty Law Section of the Association

includes most of the attorneys who specialize in

representing plaintiffs in maritime personal injury

litigation.

The Jones Act, 46 U.S.C. App. § 688(a), affords

a remedy to seamen and their families to seek

compensation for injury or death caused during the

course of their hazardous work. The issues in this

case affect the question of who may qualify as a

Jones Act seaman. One of the tenets of ATLA’s

mission is to preserve the rights of all citizens,

including seamen, to legal recourse for injury.

SUMMARY OF THE ARGUMENT

1. In order to qualify as a seaman under the

Jones Act, a worker must have a_ substantial

employment connection to a vessel in navigation or

an identifiable fleet of such vessels. The Jones Act,

46 U.S.C. App. § 688(a), contains no definition of the

word “vessel” and the definition found in the

Longshore & Harbor Workers Compensation Act, 33

U.S.C. § 902(21), is of no help. This Court’s decisions

which fashioned the present test for seaman status

do not define the term “vessel.” Chandris, Inc. v.

Latsis, 515 U.S. 347 (1995); McDermott Int'l, Inc. v.

Wilander, 498 U.S. 337 (1991). The lower courts’

decisions on this subject are mired in confusion and

contradiction. There is a need for this Court to

provide a clear and straightforward definition of the

term “vessel” for the purpose of determining seaman

status.

3

2. The test used by the court below denies Jones

Act vessel status to special-purpose vessels whose

mission is not primarily transportation of passengers

or cargo over navigable waters unless that vessel is

in transit at the moment of the worker’s injury. This

test is untenable because:

A. The artificial distinction it draws between

traditional and special-purpose vessels is not

supported by logic or by law. There is no principled

basis for such a distinction because:

(1) Maritime law has long recognized that

there are “myriad purposes for which ships set to

sea,” Wilander, supra, at 344, and the transportation

of passengers or cargo over navigable waters is only

one of these. Maritime law has long recognized that

unconventional as well as traditional vessels serve

the varied purposes of maritime commerce.

(2) There is no meaningful difference

between traditional and special-purpose vessels

insofar as the connection required between the vessel

and the crew which serves her. The crews of both are

required to have an employment connection to the

vessel that is substantial in both nature and

duration. The crew members of both are required to

contribute to the mission of the vessel.

(3) There is no meaningful difference in the

exposure to marine perils suffered by the crews of

traditional and special-purpose vessels.

(4) This Court’s prior decisions have

consistently held or assumed special-purpose craft to

be vessels.

B. The test used by the court below focuses on

the circumstances existing at the moment of injury

and is therefore the kind of “snapshot” test forbidden

+

by the Chandris Court. Thus, the test provides no

predictability to employers, workers or insurers as to

who, on any given workday, is covered by the Jones

Act and who is covered by LHWCA.

3. The definition of the term “vessel” found in 1

U.S.C. § 3, when used in conjunction with the other

prongs of the seaman status test established in

Chandris, is an appropriate test for Jones Act vessel

status. 1 U.S.C. § 3 states: “The word ‘vessel’

includes every description of watercraft or other

artificial contrivance used, or capable of being used,

as a means of transportation over water.”

4. A separate prong of the test for seaman status

set out in Chandris requires the vessel to be “in

navigation.” This Court has made clear that the “in

navigation” requirement does not require the vessel

to be in transit in order for it to be a vessel. Rather, a

vessel is “in navigation” as long as it has not been

removed from navigation for such a lengthy period of

time that it must be considered out of service. Put

another way, a vessel is “in navigation,” even if

stationary for long periods, as long as it is

performing its intended function.

-

5. A Jones Act vessel is, therefore, any kind of

watercraft or other artificial contrivance used, or

capable of being used, as a means of transportation.

This definition is consistent with this Court’s prior

decisions; it is clear, straightforward and allows for

predictability; it takes into account the great variety

of watercraft engaged in maritime commerce and the

varied missions in which they participate in

maritime commerce; and finally, it serves the

underlying policy of the Jones Act. ,

a

ARGUMENT

I. THERE IS A NEED FOR A CLEAR AND

SIMPLE DEFINITION OF THE TERM

“VESSEL”

In its recent decisions addressing the issue of

seaman status, this Court has done much to bring

clarity and predictability to this difficult area.

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

(1991), considered the nature of the work that an

individual must do aboard a vessel in order to qualify

for the protection of the Jones Act, 46 U.S.C. App. §

688(a). Two starkly different views were presented:

that of the Seventh Circuit, which required a worker

to aid in the navigation of the vessel in order to be a

seaman, Johnson v. John F. Beasley Construction

Co., 742 F.2d 1054 (7% Cir. 1984), cert. den., 469 U.S.

1211 (1985), and that of the Fifth Circuit, which

granted seaman status to those whose work

contributed broadly to the function or mission of the

vessel, Offshore Co. v. Robison, 266 F.2d 769 (5% Cir.

1959).

This Court concluded that the Fifth Circuit in

Robison had “deciphered” the Court's earlier

decisions and “correctly found that . . . this Court

was no longer requiring that seamen aid in

navigation.” The Court found that to be a seaman, a

worker must merely “contribut[e] to the function of

the vessel or the accomplishment of its mission.”

Wilander at 498 U.S. 354-355, quoting Robison, 266

F.2d 769 at 779. While the Court emphasized that

the employment-related connection to a vessel was

the “key to seaman status,” it found it unnecessary

to further “define this connection in all details.”

Wilander, supra, at 355.

6

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

presented the Court with the opportunity to

elaborate on the nature of that connection. This

Court again turned to Robison for guidance, quoting

Judge Wisdom’s formulation of the test for seaman

status.

[T]here is an evidentiary basis for a Jones Act

case to go a jury: (1) if there is evidence that the

injured workman was assigned permanently to a

vessel . . . or performed a substantial part of his

work on the vessel; and (2) if the capacity in

which he was employed or the duties which he

performed contributed to the function of the’

vessel or to the accomplishment of its mission, or

to the operation or welfare of the vessel in terms

of its maintenance during its movement or

during anchorage for its future trips.

Chandris, supra, at 365-366, quoting Robison at 779.

Building upon and refining that formulation,

the Court reiterated the requirement that an

employee’s duties must “contribute to the function of

the vessel or the accomplishment of its mission,”

Chandris, supra, at 368, quoting Wilander, supra, at

335, which, in turn, was quoting Robison, supra, at

779. With respect to the connection requirement, the

Court stated: “Second, and most important for our

purposes here, a seaman must have a connection to a

vessel in navigation (or to an identifiable group of

such vessels) that is substantial in both its duration

and nature.” Chandris, supra, at 368.

The Court emphasized that the fundamental

purpose of the substantial connection requirement is

to distinguish between land-based and sea-based

employees and to give the added protection of

7

seamen’s remedies to those employees who, because

they are sea-based, are exposed to marine perils. Jd.

at 368.

Neither Wilander nor Chandris described the

“vessel” to which the worker must have a substantial

connection in order to be a seaman. The Jones Act

does not define the term “vessel” and the definition of

that term found in the LHWCA is tautological.? As is

documented in Stewart’s Petition for Certiorari,

irreconcilable conflict and confusion exist among the

various courts that have attempted to define this

critical term.

Thus, there is a need for this Court to adopt a

definition of the term “vessel” that is consistent with

its earlier decisions and true to the fundamental

purpose of its Chandris test: to fairly distinguish

between sea-based and land-based workers. This

vessel-status test should be clear, easy to apply, and

provide predictability. It should be consistent with

the underlying policy of the Jones Act and consistent

with existing statutory definitions of the term.

Finally, the test should be broad enough to capture

the myriad watercraft which now or in the future

will be used in maritime commerce and whose crew

members are “sea-based” and thus exposed to marine

perils.

2 “Unless the context requires’ otherwise, the term

‘vessel’ means any vessel upon which or in connection with

which any person entitled to benefits under this Act suffers

injury or death arising out of or in the course of his

employment, and said vessel's owner, owner pro hac vice, agent,

operator, charter [sic], or bareboat charterer, master, officer or

crew member.” LHWCA, 33 U.S.C. § 902(21).

8

II. THE PROPOSED STANDARD FOR A

JONES ACT “VESSEL”

The definition of “vessel” found in 1 U.S.C. § 3,

in combination with the other prongs of the Chandris

seaman status test, meets these needs and captures

the long understood meaning of that term in the

general maritime law:

The word “vessel” includes every description of

watercraft or other artificial contrivance used, or

capable of being used, as a means of

transportation over water.

1 U.S.C. § 3.

Robison, the landmark Fifth Circuit case

utilized and endorsed by this Court in fashioning the

Wilander/Chandris test for seaman status, also

provides guidance for defining the term “vessel” and

supports the adoption of 1 U.S.C. § 3 as the

appropriate standard. Robison was injured while

working as a roughneck aboard a mobile oil drilling

rig located in the Gulf of Mexico. The drilling barge,

Offshore No. 55, was fitted with retractable legs so

that it could be towed into position by tugboats,

where the legs would then be lowered to the ocean

floor and the rig raised above water level by

hydraulic jacks. The rig floor would then be used as a

drilling platform. The rig was in this position at the

time of Robison’s accident.

The defendant argued, inter alia, that

Offshore No. 55 was not a vessel. Robison, supra, at

773 n.3. Judge Wisdom first reviewed Gianfala v.

2

Pa]

t

»

9

Texas Company, 350 U.S. 879 (1955) (per curiam)

and the four decisions cited therein. He concluded:

There are common denominators in Gianfala,

Basset, Summerlin, Wilkes, and Gahagan

decisions |sic]. (1) The claimants are not

ordinarily thought of as ‘seamen’ aboard

‘primarily in aid of navigation,’ although they

may serve the vessel in the sense that the work

they perform fits in with the function the vessel

serves. .. . (2) The ‘vessels’ were not conventional

vessels but special-purpose structures that in one

case was on the bottom of the sea. In other

words, under the Jones Act a vessel may mean

something more than a means of transport on

water.

Robison, supra, at 776 (emphasis added).

After then reviewing a series of other Supreme

Court decisions, including Senko v. La Crosse

Dredging Cep., 352 U.S. 370 (1957); Grimes v.

Raymond Concrete Pile Co., 356 U.S. 252 (1948); and

Butler v. Whiteman, 356 U.S. 271 (1958), the court

issued its test for seaman status quoted above. In

that test the court included within the term vessel

“special purpose structures not usually employed as

a means of transport by water but designed to float

on water.” Robison, supra, at 779. The court in

Robison recognized that there are many kinds of

vessels which serve maritime commerce in a variety

of ways and that the transportation of passengers

3 South Chicago Coal & Dock Co. v. Bassett, 309 U.S.

251 (1940); Summerlin v. Massman Const. Co., 199 F.2d 715 (4"

Cir. 1952); Wilkes v. Mississippi River Sand & Gravel Co., 202

F.2d 383 (6% Cir. 1953); Gahagan Const. Corp. v. Armao, 165

F.2d 301 (1* Cir. 1948).

10

and cargo is only one. In Wilander this Court agreed,

noting that there are “myriad purposes for which

ships set to sea.” 498 U.S. at 344. The broad

language of 1 U.S.C. § 3 gives courts the necessary

flexibility to appropriately consider the vast array of

circumstances under which different kinds of

watercraft do their work.

The vessel-status test used by the court below,

on the other hand, draws an artificial distinction

between craft whose primary purpose is to transport

passengers or cargo over water and those special-

purpose vessels which serve some other purpose.

Stewart v. Dutra Construction Company, Inc., 230

F.3d 461, 476 (1* Cir. 2000), relying on DiGiovanni

v. Traylor Bros., Inc., 959 F.2d 1119 (1* Cir. 1992)

(en banc). According to this test, a vessel which does

not have transportation as its primary function is a

Jones Act vessel only if it is under way at the time

plaintiff is injured. DiGiovanni, supra, at 1123.

There is no legitimate support in logic or in law for

such a distinction.

Both traditional and special-purpose craft

must, at some point, move over water to perform

their missions, but there are also times in the

normal operations of both kinds of craft when they

are stationary.‘ A Jones Act vessel does not lose its

‘ The times and circumstances during which these craft

are stationary vary widely. For cargo vessels, for example, it

may be as short as hours while the vessel is docked or as long as

months while the vessel undergoes repairs. For a drilling

vessel, it may be as short as a few days while it is re-

provisioned between jobs, or weeks while it performs its drilling

operations.

11

status as such merely because it is stationary.5 While

one prong of the Chandris test requires a vessel to be

“in navigation,” 515 U.S. at 368, this Court made it

clear that the phrase is not meant in a narrowly

literal sense. It does not require the vessel to be

under way; a vessel is “in navigation” unless it has

ceased to do its normal work for such a lengthy

period of time that it must be considered out of ~

service. Id. at 372-376. Put another way, a vessel

remains “in navigation” even if not under way, as

long as it is performing its normal and expected

functions on navigable waters.®

The vessel in Chandris had been placed in dry

dock for a six-month refurbishment. Jd. at 351. The

5 See Robert Force and Martin J. Norris, THE LAW OF

SEAMEN ch. 2:11 (5 Ed. 2003), and cases collected therein.

6 A vessel is in navigation as long as it is performing its

work on water, whatever that work is, and retains that status

until and unless it is “withdrawn from navigation,” Gonzales v.

United States Shipping Board, 3 F.2d 168, 171 (E.D.N.Y. 1924),

or “taken out of service,” Wayne Construction, Inc. v. Lenard,

1995 WL 309188 at *3 n. 2 (9% Cir. 1994) (unpublished). See

also Leonard v. Transoceanic Sedco Forex, 189 F. Supp. 2d 627,

629 (S.D. Tex. 2002) (a vessel “is in navigation if it is engaged in

its expected duties on navigable waters); Johnson v. John F.

Beasley Constr. Co., 742 F.2d 1054, 1063-64 (7" Cir. 1984)

(defining “in navigation” as “engaged as an instrument of

commerce or transportation on navigable water”); Fuller v.

Pacific Gulf Marine, Inc., 1987 WL 17234 at *3, 1998 A.M.C.

470 (E.D. Pa. 1987) (same); Rogers v. M/V Ralph Bollinger, 279

F. Supp. 92, 94-95 (E.D. La. 1968) (same); cf. Lewis v. Roland E.

Trego & Sons, 501 F.2d 372, 374 (4% Cir. 1974) (holding that a

construction barge was in navigation “while moored in

navigable water to give the workmen access to offshore piling”),

Davis v. Sedco Forex, 660 F. Supp. 85, 86 (E.D. Pa. 1987)

(holding that a floatable oil drilling rig was in navigation while

stationary in drilling mode).

12

district court instructed the jury that, in considering

Latsis’ time serving aboard the vessel, it was not to

consider the time he served during those six months

“because during that period of time [the vessel] was

out of navigation.” Jd. at 372-373. This Court found

the instruction improper and remanded for a trial on

the issue of whether the six-month refurbishment

was of sufficient length and the repairs of significant

magnitude to have removed the vessel from

navigation. This Court concluded that the “inquiry

whether a vessel is or is not ‘in navigation’ for Jones

Act purposes is a fact-intensive question that is

normally for the jury and not the court to decide.” Jd.

at 373.

In respect to the other prongs of the Chandris

test, the distinction drawn by the court below and in

DiGiovanni between traditional and special-purpose

vessels is equally false. The crews of both kinds of

vessels must have substantial connections to their

craft. The crews of both are exposed to marine perils

whether or not the craft is under way. Indeed, as

pointed out by the court in Robison, the crews of

special-purpose vessels sometimes suffer greater

risks than their “blue-water” counterparts.

Many of the Jones Act seamen on these [drilling]

vessels share the same marine risks to which all

aboard are subject. And in many instances Jones

Act seamen are exposed to more hazards than

are blue-water sailors. They run the risk of top-

heavy drilling barges collapsing. They run all the

risks incident to oil drilling.

K bison, supra, at 780.

These marine risks are present whether the

special purpose craft is stationary or under way. The

facts in this case dramatically illustrate the point.

13

On the day Stewart was injured, the vessel “lay idle.”

230 F.2d at 464. As Stewart attempted repairs on

one of the scows attending the dredge, the scow

collided with the dredge, causing Stewart to fall

headfirst to a deck below. Id. at 465.’

Thus, in terms of applying the seaman status

test set out in Chandris, there is no principled basis

for distinguishing between vessels whose primary

purpose is transporting passengers or cargo and non-

traditional vessels which serve some other purpose.

A special-purpose vessel, like a traditional vessel,

does not lose its Jones Act vessel status merely

because it is stationary. A craft, be it traditional or

special-purpose, is a Jones Act vessel if it is “used, or

capable of being used, as a means of transportation

over water” (1 U.S.C. § 3).

7 The jurisprudence is replete with cases where seamen

have been injured by maritime perils while working on vessels

which have been secured. See, e.g.: McFarland v. Justiss Oil

Co., Inc., 526 So. 2d 1206 (La. App. 1988), where plaintiff fell

into the water from a pontoon barge attached to an oil rig;

Miller v. International Diving and Consulting Services, Inc., 669

So. 2d 1246 (La. App.1996), where the plaintiff diver was

injured when the ladder he was using to board a pipe-laying

barge shifted and twisted; Melancon v. I.M.C. Drilling Mud, 282

So. 2d 532 (La. App. 1973), where the plaintiff was crushed

while trying to transfer large metal containers onto an oil rig

from a moored vessel; Feliciano v. Texaco, Inc., 2002 WL

1159700 (E.D. La. 2002), where plaintiff, a crane operator on a

spud barge, was injured when a tugboat tied to the barge to

help with operations moved prematurely, causing the line to

trap plaintiff's leg.

14

Ill. THE PROPOSED TEST IS

CONSISTENT WITH SUPREME COURT

JURISPRUDENCE.

The test proposed by amicus is entirely

consistent with this Court’s cases which, in a variety

of circumstances, have either held or assumed

special-purpose craft to be vessels. Jerome B.

Grubart, Inc. v. Great Lakes Dredge and Dock Co.,

513 U.S. 527 (1995), considered whether admiralty

jurisdiction existed under the Admiralty Extension

Act (AEA), 46 U.S.C. App. § 740, which extends

admiralty jurisdiction to “all cases of damage or

injury, to person or property, caused by a vessel on

navigable water.” The vessel in question was a crane

barge which, when doing its repair work on bridges

spanning the Chicago River, was secured by legs or

spuds driven into the river bottom. 513 U.S. at 530.

This Court held that admiralty jurisdiction existed

under the AEA because the damage had been

“caused by a vessel [i.e., the spudded-down crane

barge].” Jd. at 535.

In Southwest Marine, Inc. v. Gizoni, 502 U.S.

81 (1991) (Gizoni I), the Court reversed a summary

judgment which had declared a shipyard worker who

spent most of his time aboard a fleet of “floating

barges” not a seaman. The Court held that the

barges in question (“several floating barges,

including a pontoon barge, two float barges, a rail

barge, a diver’s barge, and a crane barge,” 502 U.S.

at 83), could be Jones Act vessels. Jd. at 92. The

summary judgment was found inappropriate on the

vessel status issue because plaintiff had alleged

sufficient facts to support a jury finding that the

barges were vessels.

. “he

15

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

370 (1957), upheld the Jones Act verdict in favor of a

“handyman” who was injured on land while the

dredge to which he was assigned was tied to shore.

The worker’s duties were principally to maintain the

barge. He lived ashore, went home every night and

had never been aboard the dredge while it was being

moved.

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

reversed the Fifth Circuit’s denial of seaman status

to a crew member of a submersible drilling barge

which was, at the time of plaintiffs injury,

submerged and secured on the seabed. The drilling

barge had ordinarily been moved once a year and the

plaintiff had no duties connected to the barge’s

movemerit. This Court held that a jury finding in

favor of seaman status must be reinstated.

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

252 (1948), involved a pile driver employed by a

construction company hired to build a permanent

offshore radar tower to be fixed to the sea floor.

Plaintiff lived and worked on the tower as it was

towed some 110 miles out to sea and then assisted in

the operations necessary to secure it. During this

work, he regularly worked on a nearby construction

barge. Plaintiff was injured while being transferred

from a tug to the tower. This Court reversed a lower

court ruling denying seaman status to the plaintiff

and remanded for a jury trial.

Norton v. Warner Co., 321 U.S. 565 (1944),

held that a general handyman who worked and lived

aboard a barge was excluded from coverage under

the LHWCA as a member of the barge’s crew. The

Court emphasized that plaintiff “had that permanent

16

attachment to the vessel which commonly

characterizes a crew.” Jd. at 573. (Emphasis added)

Ellis v. United States, 206 U.S. 246 (1907),

involved the criminal prosecution of dredge operators

for the violation of a statute which prohibited

contractors engaged in federally funded public works

projects from permitting their “laborers and

mechanics” to work more than eight hours per day.

Seamen were excluded from the reach of the statute.

The Court reversed the convictions and relied upon 1

U.S.C. § 3 to find that the dredges were vessels and

thus those employed aboard them were seamen. Id.

at 259-260.

IV. THE PROPOSED TEST IS CLEAR AND

SIMPLE AND ALLOWS FOR

PREDICTABILITY.

A driving force in this Court’s creation of the

substantial employment connection prong of its

seaman status test was to allow employers, workers

and insurers “to predict who will be covered by the

Jones Act and . . . who will be covered by the

LHWCA .. . before a particular workday begins.”

Chandris, supra, at 363. See also Harbor Tug and

Barge Co. v. Papai, 520 U.S. 548, 558 (1997). This

goal is no less important in the test for vessel status.

The test used by the First Circuit in this case

provides no predictability: vessel status hinges on

whether, at the moment of the accident, the craft is

under way. This is the very kind of “snapshot test”

forbidden by the Chandris Court. If allowed, it would

inevitably result in the “oscillation” between

coverage under the Jones Act and LHWCA that this

Court was attempting to avoid. See Chandris, 515

U.S. at 347. By contrast, the standard set by 1

17

U.S.C. § 3 is clear, straightforward and easy to

apply. It provides the predictability required by

Chandris and Papai, supra.

The definition of “vessel” in 1 U.S.C. § 3 avoids

the confusion and contradiction inherent in other

tests. An excellent example of this confusion is found

in the unfortunate degeneration of the Robison test

in the Fifth Circuit. Since Robison, the test for Jones

Act vessel status has evolved into an elaborate and

complex multi-layered test which includes a host of

considerations including the purpose for which the

device was constructed and being used (e.g., whether

its “transportation function” was “primary” or

“merely incidental”); whether it was moored at the

time of the accident and, if so, for how long; and

finally, no less than nine additional factors including

whether the vessel (1) had navigational aids, (2) had

a raked bow, (3) had lifeboats and other life-saving

equipment, (4) had bilge pumps, (5) had crew

quarters, (6) had Coast Guard registration, (7) moved

on a regular basis, (8) had the ability to be refloated,

and finally (9) the length of time the structure had

been in place. See, e.g., Bernard v. Binnings Const.

Co., Inc., 741 F.2d 824, 829-33 (5 Cir. 1984).

The main difficulty with this “test” is that it is

so “prolix and flabby” it really is not a test at all.®

This conclusion is driven home by cases purporting

to apply this test to essentially identical facts but

reaching opposite results. Compare, for instance,

Sharp v. Johnson Bros. Co., 917 F.2d 885 (5 Cir.

1990), and Ellender v. Kiva Const. and Engineering,

8 David W. Robertson, The Law of Seaman Status

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

18

909 F.2d 803 (5% Cir. 1990), dealing with platform

barges. Similarly irreconcilable decisions applying

the current Fifth Circuit test are Manual v. P.A.W.

Drilling & Well Service, Inc., 135 F.3d 344 (CA5

1998) and Hurst v. Pilings and Structures, Inc., 896

F.2d 504 (CA11 1990).9

Manual, supra, represents the Fifth Circuit’s

most recent attempt to bring order to the Fifth

Circuit chaos. And it does indeed restore some order.

But the Manual panel could not effect full repairs,

and the difficulties in the Fifth Circuit’s body of

vessel-status doctrine run deep. This is

demonstrated by comparing the reasoning of the

Fifth Circuit panel in Manual with that of the

district judge in the same case at 1996 WL 736993

(E.D. La. 1996).

In the district court, Judge Porteous reviewed

the facts and, applying the Fifth Circuit’s complex

vessel-status doctrine, concluded that, as a matter of

law, the drilling rig in question was not a vessel. In

the Fifth Circuit, the Court performed the same

analysis and concluded, as a matter of law, the

drilling rig was a vessel. These exactly opposite

resuits reached by two conscientious judges looking

at the identical facts are a testament to the

unworkability of the test they were attempting to

apply. The proposed test presents no such

difficulties.

* See Robertson, supra n.8 for a discussion of cases,

19

V. THE PROPOSED TEST TAKES INTO

ACCOUNT THE GREAT VARIETY OF

WATERCRAFT ENGAGED IN

MARITIME COMMERCE.

The Court in Wilander recognized that

maritime commerce has been served, from its

earliest days, by a limitless variety of craft serving

“the myriad purposes for which ships set to sea.

Wilander, supra, at 344.

In the early periods of maritime commerce, when

the oar was the great agent of propulsion, vessels

were entirely unlike those of modern times — and

each nation and period has had its peculiar

agents of commerce and navigation adapted to its

own wants and its own waters, and the names

and the descriptions of ships and vessels are

without number.

Id. at 344-345, quoting E. Benedict, AMERICAN

ADMIRALTY, § 241, pp.133-134 (1850).

Ag technology has expanded, so have the kinds

of vessels and the purposes to which they are put.

Judge Eugene Davis of the Fifth Circuit has

described the efforts of maritime courts to classify

the ever-changing kinds of craft utilized in the

offshore and inland exploration for oil and gas:

Admiral judges face no greater challenge than

that of stapting principles of general maritime

law to the changing technology in structures

claiming to be vessels in navigation, particularly

in the context of determining whether a worker

is a seaman. Early decisions struggled with

boats, wharf boats, and retired liberty ships. In

addition, the search for oil and gas under inland

and offshore waters *as changed the face of

20

admiralty law. Admiralty judges have considered

the status of jack-up drilling rigs, submersible

drilling rigs, semisubmersible drilling rigs, drill

ships, pipelaying barges, derrick barges,

compressor stations, fixed platforms, tenders

with widowmakers, spud barges, a quarterboat

barge serving as a floating hotel, a submarine

pipe alignment rig, and a spar, or ‘a nautical

structure designed to float with the bulk of the

hull below the waves — something akin to a giant

buoy.’ In other contexts, admiralty judges have

considered structures such as museum ships,

caissons, floating construction platforms, a

tractor trailer transporting a house across a

frozen lake, floating casinos, crane barges, a

submerged cleaning and maintenance platform

used to clean the hulls of vessels, and a vessel

mock-up that was used to film the movie TORA,

TORA, TORA. Claims have even been made that

helicopters should be considered vessels.

Hon. W. Eugene Davis, The Role of Federal Courts in

Admiralty: The Challenge Facing the Admiralty

Judges of the Lower Federal Courts, 75 Tul. L. Rev.

1355, 1375 (2001) (citations omitted).

New types of vessels continue, and will

continue, to be developed and used in maritime

work.!! As the Court in Robison sagely noted, it has

1) See e.g., Fields v. Pool Offshore, Inc., 182 F.3d 353,

353 (5® Cir. 1999) (describing the “Neptune Spar”); Estate of

Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326, 1327

n.l (9 Cir. 1983) (“submerged cleaning and maintenance

platform”); Fox v. Taylor Diving and Salvage Co., 694 F.2d

1349, 1351 (5® Cir. 1983) (“submarine pipe alignment rig”);

McKay v. Offshore Speciality Fabricators, Inc., 1997 WL 289365

(E.D. La. 1997) (“tension leg wellhead platform”); Gumpert v.

Pittman Const., Inc., 736 So. 2d 1026, 1030 (La. App. 1999)

(“self-propelled transportation platform”).

Te

21

been the absence of any narrow or restricted rule of

law governing seaman status which has “enabled the

law to develop naturally along with the development

of unconventional vessels.” Robison, 266 F.2d at 780.

The proposed test is broad and inclusive enough to

capture this wide variety of vessels, now and in the

future.

VI. THE PROPOSED TEST FURTHERS

THE UNDERLYING POLICY OF THE

JONES ACT.

The “congressional purpose of the [Jones Act]

is ‘the benefit and protection of seamen who are

peculiarly the wards of admiralty.” Cox v. Roth, 348

U.S. 207, 209 (1955), quoting The Arizona v. Anelich,

298 U.S. 110 (1936). The Jones Act is thus “entitled

to a liberal construction to accomplish its beneficent

purposes.” Cosmopolitan Shipping Co. v. McAllister,

337 U.S. 783, 790 (1949).

The proposed test is consistent with this policy

underlying the Jones Act because it provides the

protections of that law to those sea-based workers

who, as a regular part of their employment, are

exposed to marine perils, regardless of whether the

vessels they serve are traditional or special-purpose

vessels.

22

CONCLUSION

For the foregoing reasons, Amicus urges this

Court to reverse the judgment of the court of appeals,

and to establish a vessel status test as proposed

hereinabove.

Respectfully submitted,

John W. deGravelles, Esq. -

618 Main Street

Baton Rouge, LA 70801

(225) 344-3737

Counsel of R< -ord and

Attorney for Amicus Curiae

May 24, 2004