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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0723%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 481

## Text

ac

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0723%3A13. Public record. Not legal advice.