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

Supreme Count, U.S

—_—

/ ‘

/ FILED

a AUG 2 - 2004

No. 03-814 ‘ a

— OFFICE OF THE CLERK

In The

Supreme Court of the United States

°

WILLARD STEWART,

Petitioner,

V.

DUTRA CONSTRUCTION COMPANY,

Respondent.

5

On Writ Of Certiorari To The United States

Court Of Appeals For The First Circuit

¢

BRIEF FOR THE SIGNAL MUTUAL

INDEMNITY ASSOCIATION AS

AMICUS CURIAE SUPPORTING RESPONDENT

o

JOHN J. WALSH

Counsel of Record

ZACHARY M. BARTH

FREEHILL, HOGAN & MAHAR LLP

80 Pine Street

New York, NY 10005

(212) 425-1900

(212) 425-1901

THOMAS J. SCHOENBAUM

2000 H Street, NW

Washington, DC 20052

(202) 994-0391

(202) 994-1684

COCKLE LAW BRIEF PRINTING CO (800) 225-6904

OR CALL COLLECT (402) 442-2531

QUESTION PRESENTED

To qualify for “seaman” status under the Jones

Act, a worker must have an “employment-related

connection to a vessel in navigation.” Chandris,

Inc. v. Latsis, 515 U.S. 347, 357 (1995). What is

the legal standard for determining whether a

special purpose watercraft (such as a dredge) is a

Jones Act “vessel?”

‘i

TABLE OF CONTENTS

Page

| I i

Interest of Signal Mutual Association....................6.. 1

Summary fn 4

ABEPOEBOGR, .0000000000000cceccneeseescnnnensenenseiniaee 7

I. A Jones Act vessel furnishes food, lodging

and care on the voyage...............cssssseeecseeeeeeess 7

A. Only vessels on voyages away from home

employed seamen who were entitled to

maintenance and CUTIE...............c.cecceeeeeeees 7

B. The Jones Act only applied to vessels on

voyages away from home .....................005 10

C. With the passage of the LHWCA, Con-

gress intended only to exclude those

mariners who were entitled to mainte-

nance and cure and wages to the end of

CRO WRFRED .000cccccocscoesscecesssseue 11

D. The vessel on a voyage away from home

was the seaman’s home and therefore was

YY. Sf ee er 15

II. The term “vessel” should be interpreted in

accordance with the ends to be attained by

the LHWCA and Jones Act ...........0....ccccceceeeees 21

III. The dredge in this case was not a Jones Act

WIG .cccccccccccccsccensescosznsenmiusssi 24

CCOREIIGEGE 0000cccocccccoccccsccssecsasenenmauiaae 26

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Aguilar v. Standard Oil, 318 U.S. 724 (1943)............ 15, 23

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)....... 25

Barnes v. Andover, 900 F.2d 630 (3d Cir. 1990).............. 5,8

Bertrand v. International Mooring & Marine, Inc., —

700 F.2d 240 (5th Cir. 1983) ..........cccccccccecceeeeeeeeeeeeeeeeeeees 2

Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir.

i. ssssermnmnpnnnenessocese 4

Boudreaux v. American Workover, Inc., 680 F.2d

TT TEN 3

Brown v. Overton, 4 F.Cas. 418 (D.Mass. 1859).................. i)

Butler v. Whitman, 356 U.S. 271 (1958) ...............cccccceeeees 17

Buras v. Commercial Testi: and Engineering Co.,

736 F.2d 307 (5th Cir. 1984) ..0.............ccccccccceeeeeeeeeeeeneeeees 2

Calmar S.S. Co. v. Taylor, 303 U.S. 525 (1938)...... 9, 14, 23

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...............0++ 25

Chandris v. Latsis, 515 U.S. 347 (1995) .................cccceeeeee 18

Chelentis v. Luckenbach, 247 U.S. 372 (1918).................. 21

Cortes v. Baltimore Insular Lines, 287 U.S. 367

SET 23

Davis v. Department of Labor and Industries of the

State of Washington, 317 U.S. 249 (1942)... 4

Desper v. Star Rock Ferry Co., 342 U.S. 187 (1952) ......... 16

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

SE Te 19, 20

iv

TABLE OF AUTHORITIES -— Continued

Page

Figueroa v. Campbell Ind., 43 F.3d 311 (9th Cir.

Eon ener Neen ton Neem avers 2,3

Fontenot v. AWI, Inc. , 923 F.2d 1127 (5th Cir. 1991) .......... 4

Gianfala v. Texas Co., 350 U.S. 879 (1955)..........ccccccceceeee 17

Great Lakes S.S. Co. v. Geiger, 261 F. 275 (6th Cir.

ITT scsinidanheshenteieeniteneneltmrniene shennan eitatelteictacidetdens inc iadaae 8

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

TTT ssisinstereinienaenaepess nememinedhienieniasnmeniaeaiuaetbiniei est tieasiaiiadiialeaiaaiaaals 17, 18

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

ei aseecheniestindipaehsupenteieteteaneatatententnas ati enaent tastes cielenetliaiialiaiaalis 3,18

Harden v. Gordon, 11 F.Cas. 480 (C.C.D.Me. 1823)........... 8

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

RII, STII ssinsnrsiscerissnshinnsnicisaieniidiaeiteiaiaiedaiaiiinlilies 19

International Stevedoring Co. v. Haverty, 272 U.S.

TE TITTIThcxichstuiiieinasnniariniesiasumsenstasnemenansiteinaasiaatalimtatiaibelbatia’ 11, 14, 15

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

SRS Re ernie eens re 19

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

I xcesieheseisnessieiiinansieninianiieibiseaundiaiainieiadniiendiaeetieeieeiiiniataeneidaia nila 20

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

CLAS CR Tare Se VE SPO Dee 11

McDermott International Co., nc. v. Wilander, 498

5 Berl CE ers ee 10, 18, 21

Macedo v. F/V Paul and Michelle, 868 F.2d. 519

SG, te nrccicisiniieiseecesstiiteiiittlaaeetaiiatashiataaenitaiactaiidieriemiiniaaial 5

Manuel v. PA.W. Drilling & Well Service, 135 F.3d

SEY SERGE er ener eee 20

v

TABLE OF AUTHORITIES — Continued ~

Page

Martinez v. Signature Seafoods, 303 F.3d 1132 (9th

RE TiolesiieiieniadeenasieinadtiinsbeshDindaalendaties 20

Molzof v. United States, 502 U.S. 301 (1992).................... 21

Norton v. Warner, 321 U.S. 565 (1944) ..............ccccccccee scene 16

O’Connell v. Interocean Mgmt. Corp., 90 F.3d 82 (3d

GE UIT snesicnssttetniseteaiesisieestnsensinatitalintendaceaiateiannedtatainsiainatiibiasiasialaaiaitiaeaie 5

Peter v. Hess Oil VI. Corp., 903 F.2d 935 (3d Cir.

ee eT Oe I Ea me 3,4

Randall v. Chevron, 13 F.3d 888 (5th Cir. 1994) ................ 4

Reed v. Canfield, 1 Sumner 195, 20 F.Cas. 426

CE : renitinenterenenieieiiennistieiniibiinnennan 8,9

Roper v. United States, 368 U.S. 20 (1961)...........ccccccee0es 17

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

Sao eves eeerenee se nO 17

Service Eng. v. Emery, 1997 AMC 395 (9th Cir.

TTT cesninenisiienaealieaieaennsininmusasiinaasaisiiinitiaiaaiilindiaiaieaaaaaliai dian 6

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

ST ciienicieetrininicdaiiaii dears citesattattanesinicininiasaicausaameiiniaieniaammneiabiiadieaaill 3

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) .. 11, 22

Southwest Marine v. Gizoni, 502 U.S. 81 (1991).......... 3,18

Stewart v. Dutra Const. Co., 343 F.3d 10 (1st Cir.

eee eee en eee 20

Swanson v. Marra Bros., Inc., 328 U.S. 1 (1946).............. 10

The Ben Flint, 3 F.Cas. 183 (D.Wis. 1867).................... 8, 15

The City of Alexandria, 17 F. 390 (S.D.N.Y. 1883)............. i]

The Henry B. Fiske, 141 F. 188 (D.Mass. 1905)................ 15

vi

TABLE OF AUTHORITIES — Continued

Page

The J.F. Card, 43 F. 92 (E.D.Mich. 1890) .....................000e 8

The Mars, 149 F. 729 (3d Cir. 1907) ..........0.cccccccccceeceeeeeeeeees g

The Osceola, 189 U.S. 158 (1903)...........00..cccccceeeee 10, 21, 22

Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42

I al 19

Tonneson v. Yonkers Contracting Co., 82 F.3d 30 (2d

I, a iene ae 20

Warner v. Goltra, 293 U.S. 155 (1934) 0.00... 21

Weiss v. Central Railroad Co. of New Jersey, 235

I il 5, 15, 19

West v. United States, 361 U.S. 118 (1959) .....00.0...0ccc a. 17

Whittington v. Sewer Construction Company, Inc.,

fo ff Seer 19

STATE CASES

Flanagan & Sons, Inc. v. Carken, 11 S.W.2d 392

(Tex. Civ. App. 19ZB) ........cscscsesesescereresessserereroerssereresecnees 11

People v. Island Wide Ins. Brokerage, 177 Misc. 2d

668 (NY Dist. Ct. Nassau County, 1998)....................... 13

U.S. RULES, REGULATIONS AND STATUTES

ETT Sen eee eee” ® 25

LE eS AN Se ee ae ed 16, 20

Defense Base Act, ,

Senn) aE EnS tO osnenccisrnnteunieiniiiguitninniniaerindiiiatienienialil 1

Vii

TABLE OF AUTHORITIES -— Continued

Page

Longshore and Harbor Workers’ Compensation Act

(LHWCA):

a le eh WROD, cnsecrrsenseseseserseessnmninimeimnnmmnmnnneess 1

er eee 4,10

Se Es TIT nicrrnnnccnsnnsinnnmnnccnnsennneeeninnininitaiiadianie 2

SE Tt UII icernnsnesennccsnensneseeempineiindiniiniesmieensned 2

Sp WEI: IEE csnccencnressnnsensentninanntnimnenntainniinieniigiammuaiei 5

a ee GD eccccnsnsnscnccesncnnunenmnenineninicinnioninnmmementiiiis 3

BD Py Ge cnsecicnrecnnconsnennnasenenanenttenenenunininenisianiasia 3

SP ID UIT ccrriuceneniparessinneeensenennninallinsinennmieniadiiiins 2,6

ee oe 1,6

Sere Resmnintinniininn

Jones Act

Ey CT Ut xccccnnisennesensnsntiesennatentntinniieTneeniitiueiasits 10

Non-Appropriated Funds Instrumentalities Act,

© GR Be ele OR: GBD cccsrescncccansnssemnceperensnenscssesesssssssmseses 1

Outer Continental Shelf Lands Act,

GB EG, Gir GB, BB cccccsccscsccnsscsesescsesscessssssssssscsccesnes 1

Revised Stat Section 3, 1 U.S.C. §3 ..............ccccccceeeeee 11, 21

OTHER AUTHORITIES

Benedict, Eratus C., The American Admiralty, §218

Oth TP criinseiecamnesentinnninnmnmecnpimunmenmnemmniteds 7

Benedict on Admiralty §83 at 131 (5th Ed. 1925)............... 9

Black’s Law Dictionary (6th Ed.) ..0..........::cccccseseceeeseeeeeeees 13

1 Force & Norris, The Law of Seamen (2003)............. 14, 23

TABLE OF AUTHORITIES — Continued

Page

Gilmore & Black, Law of Admiralty (2d Ed. 1975)....... 3, 10

H.R. No. 1767, 69th Cong. 2d Sess. (1927)..... 12, 13, 14, 22

H.R. No. 9498, 69th Cong., Ist Sess. at 104..................... 13

2 Larson’s Workers’ Compensation (Desk Ed.2003)............ 3

BS Oe GO I Fa accccccccsesccesccccccescssesecsscssssesssncstsosen 8

ES UF weicietisectcnsccnienintninitescinciiniiaiimiaeaiicinaiins 8

I Se, Mi itcrnrctnnncncctsiinsccniicnccniiintnssieeninenssuitiinns 8

Oleron Sea Code, Laws of Oleron, Art. VI .0...........c.cc0000es 23

Thomas J. Schoenbaum, Admiralty and Maritime

Ga es Si iciencennnncccnnsnscssasseiaiinnmveimnesesisccnieitin 5

S.Rep. No. 92-1125, 92d Congress 2d Sess. (1972)............. 2

1

INTEREST OF SIGNAL MUTUAL ASSOCIATION’

SIGNAL MUTUAL INDEMNITY ASSOCIATION

(hereinafter “Signal” or “Association”) is a non-profit

mutual insurance association authorized under 33 U.S.C.

§932(a)(2) to secure its Members’ obligations as maritime

employers to their maritime employees under the Long-

shore Harbor Workers’ Compensation Act (“LHWCA”), 33

U.S.C. §§901 et seq., and its extensions, the Defense Base

Act, 42 U.S.C. $1651 et. seg., the Non-Appropriated Funds

Instrumentalities Act, 5 U.S.C. §8171 et. seg., and the

Outer Continental Shelf Lands Act, 43 U.S.C. §1331 et.

seq. The Association comprises about 200. employers

including stevedores, marine terminals, oil and gas explo-

ration and drilling companies.

Signal’s members need to know prospectively how to

compensate an injured worker. Due to the ambiguities in

the present system, any of their employees might at any

point in time be classified as: (1) harbor workers covered

by the LHWCA; (2) as land-based workers covered by state

workers’ compensation, or (3) as Jones Act seamen who are

owed maintenance and cure.’ An employer is obliged to

’ The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

? Signal does not cover the employers’ obligations under the Jones

Act or under any state’s workers’ compensation statute. Signal will

assist its Members to cover their crew risks under Maritime law

through insurance provided by other insurance carriers who will

sometimes insure these employers with an endorsement to the em-

ployer’s liability section of a state workers’ compensation policy, or as a

separate liability policy which is often termed a protection and indem-

nity (P&I) policy.

2

pay automatically under each of these regimes. Although

they are, theoretically, mutually exclusive,’ Signal’s

members are required to insure themselves for each

worker under each regime and oftentimes are required to

pay under more than one regime, as they can be held

liable under two regimes for the same injury at the same

time. See e.g., Figueroa v. Campbell Ind., 43 F.3d 311, 316

(9th Cir. 1995) (holding that injured employee was entitled

to bring an action for his pain and suffering under the

Jones Act, after recovering benefits for his unpaid wages

and medical expenses from workers’ compensation).

-

Employees of these Members who suffer injuries can

first obtain compensation under the LHWCA.* Pursuant

to section 20 of the LHWCA (33 U.S.C. §920) they are

* See, e.g., Buras v. Commercial Testing and Engineering Co., 1985

AMC 1177, 1179, 736 F.2d 307, 309 (5th Cir. 1984); Bertrand v. Interna-

tional Mooring & Marine, Inc., 1984 AMC 1740, 1742-43, 700 F.2d 240,

243 (5th Cir. 1983).

* The LHWCA compensation system is generous and was deliber-

ately made so by the 1972 Amendments which substantially increased

the compensation payments in return for the eliding of a longshore-

man’s rights to sue for unseaworthiness and the employer’s freedom

from liability on the basis of a warranty of workmanlike performance.

See S.Rep. No. 92-1125, 92d Congress 2d Sess. (1972) (“The Committee

believes that especially with the vast improvement in compensation

benefits which the bill would provide, there is no compelling reason to

continue to require vessels to assume what amounts to absolute

liability for injuries which occur to longshoremen or other workers

covered under the Act who are injured while working on those vessels.”)

The compensation system contemplates payment of two-thirds of the

average weekly wage of a harbor worker during temporary total

disability. 33 U.S.C. §908(b). This is subject to a cap of approximately

$1,000 per week which escalates for cost of living increases. 33 U.S.C.

§906(b). Compensation payments are not taxable and therefore the

harbor worker often receives amounts for disability that come close to

their take-home pay while they work.

3

presumptively entitled to LHWCA benefits which an

employer must pay or otherwise face penalties.’ Having

collected the benefits under the LHWCA, the employee is

not precluded from later commencing Jones Act lawsuits

to recover wages and pain and suffering. See Southwest

Marine, Inc. v. Gizoni, 502 U.S. 81 (1991); G. Gilmore & C.

Black, Law of Admiralty 435 (2d ed. 1975).°

Worker’s compensation is “part of a quid pro quo in

which the sacrifices and gains of employees and employers

are to some extent put in balance, for, while the employer

assumes a new liability without fault, it is relieved of the

prospect of large damage verdicts.” 2 Larson’s Workers’

Compensation §100.01 at 100-2 (Desk Ed.2003); see also

Peter v. Hess Oil VI. Corp., 903 F.2d 935, 952 (3d Cir.

1990) (noting that permitting tort liability would obstruct

“the purposes of LHWCA by depriving maritime employers

of their side of LHWCA’s quid pro quo....”). No such

balance is struck when harbor workers are indistinguish-

able from seamen. When the employee brings a Jones Act

lawsuit, he has not elected LHWCA benefits and the

jury is entitled to decide whether he is a seaman under

the Jones Act. Southwest Marine, 502 U.S. at 91. He can

then be compensated for lost wages and pain and suffer-

ing by a jury in generous amounts. See e.g., Figueroa, 43

F.3d at 316; Boudreaux v. American Workover, Inc., 680

F.2d 1034, 1053 (5th Cir. 1983) (making reference to the

* See 33 U.S.C. §914(e) (10% penalty for installment not paid

within 14 days when it is due with award); Jd. §914(f) (20% penalty for

installment not paid within 14 days of when it is due with award).

* Further, because the two regimes have separate systems to

resolve disputes there is no single forum which can address the

question in the alternative. See Harbor Tug and Barge v. Papai, 520

U.S. 548 (1997).

4

“lucrative” Jones Act recovery). The employer who as-

sumed a liability without fault and pays compensation

receives no relief from the large verdicts whose avoidance

was supposed to be part of the quid pro quo. See Larson,

§100.01 at 100-2; see also Peter, 903 F.2d at 952.

S

SUMMARY OF ARGUMENT

To provide much needed certainty to all participants

in the compensation systems, a rule which clearly defines

a vessel under both the Jones Act and LHWCA and which

can be easily applied is needed.’ Signal and its Members

respectfully urge a rule that removes the ambiguity

surrounding the meaning of “master or member of the

crew of any vessel,” under 33 U.S.C. §902, such that it

would be clear who is a seaman and who is a harbor

worker which would result in only a single insurance

coverage for each employee and payment to the employee

under one compensation system.*

Congress intended continuity between the benefits

received by the worker on the job with the benefits re-

ceived while disabled. Disabled Jones Act seamen receive

* Ir Davis v. Department of Labor and Industries of the State of

Washington, 317 U.S. 249 (1942) (Stone, J., dissenting), it was urged

that a similar rule designed to avoid the “twilight zone” should be

adopted. A solution which allows a “case by case” determination serves

no purpose. See Randall v. Chevron, 13 F.3d 888 (5th Cir. 1994);

Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999); and Fontenot v.

AWI, Inc., 923 F.2d 1127 (5th Cir. 1991) (demonstrating the dangers of

complicating analysis of employment classifications on a case by case

basis focused on inherently subjective trigger mechanisms).

* With one compensation scheme also comes the benefit of one

forum for the resolution of disputes related to the compensation.

5

maintenance and cure,’ because it is the equivalent of the

food, care and lodging received while living aboard the

vessel. O’Connell v. Interocean Mgmt. Corp., 90 F.3d 82, 84

(3d Cir. 1996). Thus, a Jones Act vessel should be clearly

identified as one which having furnished food, care and

lodging to the seaman while working on the vessel, pro-

vided maintenance and cure as the equivalent while

disabled. Barnes v. Andover, 900 F.2d 630, 634-35 (3d Cir.

1990). In other words, the vessel is a “home.” See Weiss v.

Central Railroad Co. of New Jersey, 235 F.2d 309, 314 (2d

Cir. 1956) (Lumbard, J., dissenting). This easily distin-

guishes the Jones Act vessel from the vessel which pro-

vides no food, care or lodging and therefore must respond

under the LHWCA.

Congress intended such a rule to implement its

preference for worker’s compensation.” The worker’s

compensation remedy is preferable for a number of rea-

sons. First, LHWCA requires a prompt payment of com-

pensation benefits with significant penalties for failure to

make prompt payment. 33 U.S.C. §914. Secondly, the

worker’s compensation payments under the LHWCA are

generous and enable the employee to live comfortably; by

contrast, the Jones Act seaman who is not covered by the

LHWCA must survive on maintenance and cure which

consists of food and lodging expenses only for himself and

not his family. Cf. Macedo v. F/V Paul and Michelle, 868

F.2d 519 (1st Cir. 1989) (reversing district court increase of

* Maintenance is the right of seaman to food and lodging if he falls

ill or becomes injured in the service of the ship. Cure is the right to

necessary medical services. See 1 Thomas J. Schoenbaum, Admiralty

and Maritime Law, §6-9 at 290 (4th Ed. 2003).

* See Section II infra.

6

maintenance payments from $10 per day to $40 per day

and noting that “[mJaintenance and cure is strictly per-

sonal, not family support.”); Service Eng. v. Emery, 1997

AMC 395, 397-98 (9th Cir. 1996) (commenting on generous

federal LHWCA benefits). Thirdly, maritime employees are

presumptively covered under the LHWCA under which

compensation payments are automatically payable and do

not require counsel in order to claim payments. See 33

U.S.C. §920. By contrast, a Jones Act lawsuit is ordinarily

filed by an attorney, whose compensation is contingency

based on usually one-third of the recovery. Fourthly,

payments under the LHWCA are financially secure under

a mandatory insurance program supervised by the U.S.

Department of Labor. 33 U.S.C. §932. No such mandatory

insurance exists under the Jones Act leaving employees to

the discretion of their employer for insurance coverage and

even insured Jones Act employers are vulnerable to the

potential of insolvency of their insurers.

Adopting the “vessel as a home” test, which an analy-

sis of legislative history will show to be the test intended

by Congress, will result in a more efficient system of

maritime workers’ compensation with lower insurance

premiums, more prompt compensation payments, less

attorney and judicial resources and less litigation and

transaction costs. It will also ease the fundamental un-

fairness to workers, employers and insurers posed by the

two incompatible compensation systems.

¢

7

ARGUMENT

I. A JONES ACT VESSEL FURNISHES FOOD,

LODGING AND CARE ON THE VOYAGE

Petitioner and supporting amicus curiae have argued

that the definition of a Jones Act vessel should be as broad

as Congress has given the definition of “vessel” for admi-

ralty jurisdiction purposes." This argument faiis to ascer-

tain the intent of Congress in enacting both the Jones Act

and the LHWCA, which clearly demonstrates that Con-

gress did not intend for every vessel subject to admiralty

jurisdiction to be a Jones Act vessel.

A. Only Vessels on Voyages Away from Home

Employed Seamen Who Were Entitled to

Maintenance and Cure

To understand Congressional inten’ in enacting the

Jones Act, it is necessary to consult the rights of injured

seamen before the passage of the Jones Act in 1920.

Unlike the treatment of a “vessel” for purposes of admi-

ralty jurisdiction, the 19tm Century couris differentiated

vessels on the basis of their liability to compensate a

seaman for maintenance and cure as opposed to those

" Historically, the term vessel was given the broadest definition, so

as to avoid having admiralty jurisdiction turn on artificial distinctions

based on the vessel’s size, use, propulsion or lack thereof:

A scow, a lighter, a ferry-boat, and probably a raft or timber

ship, under certain circumstances, would be held to be a

ship or vessel, and subject to the same maritime law as

other vessels. It is not the form, the construction, the rig,

the equipment, or the means of propulsion that establishes

the jurisdiction, but the purpose and business of the craft as

an instrument of naval transportation.

Erastus C. Benedict, The American Admiralty, §218 at 122 (1850).

8

which had no such liability. Drawing on ancient jurispru-

dence,” the courts charged the ship on a foreign voyage

with costs of curing mariners stranded ashore in foreign

ports. See Harden v. Gordon, 11 F.Cas. 480 (D.Me. 1823).

See also, Barnes, 900 F.2d at 637 (noting that the adjec-

tives “friendless” and “helpless” as used by the Harden

court were generally used to describe sailors in foreign

ports). It was soon recognized that the voyage need not be

foreign; the maintenance and cure obligation attached to

vessels employed on voyages in “navigable fresh waters.”

The Ben Flint, 3 F.Cas. 183 (D.Wis. 1867). However the

voyage had to take the mariner away from home to trigger

the requirement of maintenance and cure: “the same

consideration under the rule may not be extended indis-

criminately to all classes of seamen . . . the same liberality

need not be extended to a seaman shipping for a voyage

for a few days on the lakes....” Id. If the crewmember

was close to home where he could ob sin medical treat-

ment, then he was denied cure at the expense of the ship.

The J.F. Card, 43 F. 92 (E.D. Mich. 1890).

A voyage away from home was the basis for a mainte-

nance and cure award. See Reed v. Canfield, 1 Sumner

195, 202, 20 F.Cas. 426 (C.C.D. Mass. 1832).” The voyage

* By general maritime law, if a seaman fell sick during thee voyage,

he was to be cured at the expense of the vessel. See Laws of.“Oleron Art.

7; Laws of Wisbuy, Art. 19; Laws of the Hanse Towns, Art. 45, see also

Harden v. Gordon, 11 F.Cas. 480 (1823).

*” The connection between maintenance and curre and a voyage was

premised on the crewmember having a stake in the voyage:

But the truth is that the maritime law furnishes entirely

different doctrines upon this, as wel] «as many other subjects

from the common law. Seamem are in some sort co-

adventurers upon the voyage, and lose their wages upon

casualties which do not affect: artisans at home. They share

(Continued. on following page)

requirement also triggered the vessel’s liability for wages:

if a seaman fell ill or injured on the voyage and had to be

discharged before the voyage was completed, the wages

were paid to the end of the voyage but not beyond the

voyage, at least where the ship was faultless. See Great

Lakes S.S. Co. v. Geiger, 261 F. 275, 277-78 (6th Cir. 1919).

Nor was maintenance and cure originally paid beyond the

voyage. See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527

(1938). The courts struggled with whether liability for

maintenance and cure extended beyond the voyage, with

the lower courts at the turn of the 20th Century leaning in

favor of extending cure and attendant lodging for sick

seamen beyond the voyage. See id; The Mars, 149 F. 729

(3d Cir. 1907); Benedict on Admiralty, §83 at 131 (5th Ed.

1925)."* However, the ultimate extension of seamen’s rights

to maintenance and cure beyond the voyage did not imply

or forecast the extension of the class of maritime workers

who were entitled to maintenance and cure.”

the fate of the ship in cases of ship-wreck and capture. The

policy of the maritime law, for great and wise and benevo-

lent purposes, has built up peculiar rights, privileges, duties

end Ganiiies ta. Ge cen corvice whieh G ast Seleag

home pursuits.

The City of Alexandria, 17 F. 390, 395-96 (S.D.N.Y. 1883) (quoting Reed

v. Canfield, 1 Sumner 195, 20 F.Cas. 426 (C.C.D. Mass. 1832)).

“ The courts were not in unison in extending maintenance and

cure beyond the voyage. Many courts allowed maintenance and cure

beyond the voyage in situations where the treatment had already begun

and was to continue past the time of the voyage and to other situations

where the ship failed to provide competent maintenance and cure. See

The City of Alexandria, 17 F. 390 (S.D.N.Y. 1883); Brown v. Overton, 4

F.Cas. 418 (D. Mass. 1859).

“ See Calmar S.S. Co. v. Taylor, 303 U.S. 525 (1938) and note 20

infra.

10

B. The Jones Act only Applied to Vessels on

Voyages Away from Home

The Osceola, 189 U.S. 175 (1903) linked maintenance

to the voyage away from home by confirming that mainte-

nance was payable “at least so long as the voyage is contin-

ued,” but denied seamen a negligence remedy.” Congress

enacted the Jones Act in 1920 which established a negli-

gence remedy for The Osceola seamen. 46 U.S.C. §688 et.

seq. While the Jones Act contained no reference to a “ves-

sel,” Jones Act seamen were later defined to be the masters

or members of a crew of any vessel within the meaning of

LHWCA. 33 U.S.C. §902; see also Swanson v. Marra Bros.,

Inc., 328 U.S. 1 (1946). Jones Act vessels were those whose

seamen were entitled to maintenance and cure and wages

to the end of the voyage, as the only purpose of the Jones

Act was “to remove the bar created by The Osceola, so that

seamen would have the same rights to recover for negli-

gence as other tort victims.” Gilmore & Black, Law of

Admiralty, §328-329 (2d Ed. 1975), quoted in McDermott

International v. Wilander, 498 U.S. 337, 342 (1991). Thus,

Jones Act seamen are Osceola seamen working on vessels

that embarked on voyages away from home. There is no

evidence of a Congressional attempt to embrace within the

Jones Act all workers who worked on “every description of

watercraft or other artificial contrivance used, or capable of

* In The Osceola, 189 U.S. 175 (1903), the court codified the ill and

injured seaman’s rights into four propositions: (1) the sick or injured

searnan was entitled to maintenance and cure “at least so long as the

voyage is continued”; (2) the seaman may recover indemnity for injuries

sustained as a result of unseaworthiness; (3) the seaman cannot recover

from the owner for injuries sustained through the negligence of fellow

servants; (4) the seaman is not allowed to recover for the negligence of

the master or member of the crew beyond maintenance and cure. /d. at

175.

11

being used, as a means of transportation on water.” 1

U.S.C. §3.

This easy classification of Jones Act vessels and

seamen would have been more easily discerned were it not

for the Court’s humane decision in International Stevedor-

ing Co. v. Haverty, which gave maritime workers who

lacked any compensation remedy under state or federal

law” a Jones Act remedy, despite their work on vessels

which did not embark on voyages and which did not

provide food, care or lodging. 272 U.S. 50 (1926). Haverty

created a new class of Jones Act seamen. Jd. One court

held that this new class of “seaman” was not entitled to

maintenance and cure. See Flanagan & Sons, Inc. v.

Carken, 11 S.W.2d 392 (Tex. Civ. App. 1928). But the issue

was never seriously litigated, as Congress overruled

Haverty in enacting the LHWCA in 1927.

C. With The Passage Of The LHWCA, Con-

gress Intended Only To Exclude Those

Mariners Who Were Entitled To Mainte-

nance And Cure And Wages To The End Of

The Voyage

All seamen were initially included in the House Bill

and to avoid the exclusion of any inland vessel workers,

" As to the workers who were maritime employees but outside .of

the Jones Act, this Court held unconstitutional an attempt to apply

state worker’s compensation to any worker whose injury occurred

seaward of the gangplank. See Southern Pacific Co. v. Jensen, 244 U.S.

205 (1917). Congressional attempts to apply state law to injuries

seaward of the gangplank were similarly rebuffed in Knickerbocker Ice

Co. v. Stewart, 253 U.S. 149 (1920). .

12

the House created a laundry list of watercraft that were

subject to the LHWCA:

This Act shall apply to any maritime employ-

ment performed —

* * x

(B) As master or member of a crew of a barge,

lighter, tug, dredge, vessel, or other ocean,

lake, river, canal, harbor or floating craft

owned by a citizen of the United States.”

At the same time, Congress reserved to “the masters

or members of the crew” maintenance and cure and their

“wages to the end of the voyage.” H.R. Report No. 1767,

69th Cong. 2d Sess. at 20 (1927). The legislative history

makes it clear that Congress connected the “vessels” to a

voyage:

~ The bill has been amended so as to provide the

benefits of compensation to seamen, or, to use the

language of the bill, ‘to masters and members of

the crew.’ As to this class of workers, the bill pro-

vides that they are to receive compensation, in

addition to their right to maintenance and cure,

and wages to the end of the voyage as now pro-

vided by maritime law.”

This class of workers referred to the Jones Act seamen

who had previously received maintenance and cure and

wages to the end of the voyage.” Congress intended to

* H.R. No. 1767, 69th Cong. 2d Sess. at 2 (1927)

* H.R. Report No. 1767, 69th Cong. 2d Sess. at 20 (1927).

* Those rights were not extended to the laundry list of vessels

whose workers were to be conferred rights under the LHWCA, namely,

the crew of the barges, lighters, tugs, dredges or other ocean, lake,

(Continued on following page)

——

13

overrule the Jones Act but to preserve those two unique

rights peculiar to seafarers who embarked on voyages

away from home. This narrow class, the Jones Act seamen,

but none other, was, for the reasons stated below, excised

from the LHWCA.

The International Seaman’s Union protested the

inclusion in the LHWCA of the Jones Act seaman.” In

response, Congress exempted “master or member of a crew

on any vessel” from the LHWCA. The exemption did not

include the laundry list of floating craft that had previ-

ously been included in the LHWCA and it is clear that, in

amending the bill, Congress excised only the class of

seamen who were entitled to maintenance and cure and

wages to the end of the voyage.”

river, canal, harbor or floating craft who were also to be included in the

LHWCA. See H.R. No. 1767.

*” Testimony before the House Judiciary Committee by Andrew

Furuseth, President of the International Seaman’s Union of America,

outlined the difference between Jones Act seamen and harbor workers:

When a man is working in a harbor or on shore, and he, us-

ing his eyes and his understanding can see that there is

grave danger of him being, seriously hurt or maimed or

killed, there is nothing to hinder that man from taking off

his overalls, putting on his coat and saying, ‘no, I will not do

that work.’ He can do that, and go away and nobody can say =~

anything to him.

But where a vessel is at sea the seaman must obey orders,

he has got no choice. He is in the same positidn as the sol-

dier in the front line of a battle. He is there to obey such ovr-

ders as are given to him by his superior officers, regardless

of whether he is risking his life in so doing or not.

H.R. No. 9498, 69th Cong., ist Sess. at 104.

* This implicates the statutory construction rule “inclusic unius

est expresio alterius.” See People v. Island Wide Ins. B» , 197

Misc. 2d 668, 670 (NY Dist. Ct. Nassau County, 1998) (citing Black’,

(Continued on following page)

14

There is no evidence to suggest that Congress implic-

itly amended the Jones Act by excluding from the LHWCA

(and therefore adding to the Jones Act), seamen who

worked on those vessels that did not embark on voyages

away from home and who therefore were not eligible for

maintenance and cure. Nor is there a scintilla of evidence

that Congress engaged in only a partial overrule of

Haverty by confirming that Court’s creation of a new class

of Jones Act seamen who were not lodged, fed or cared for

by the vessel. In short, a Jones Act seaman returned to

what he was before Haverty, namely, one entitled to

maintenance and cure and wages to the end of the voy-

age.” As a result, the Haverty seamen became covered by

the LHWCA, not the Jones Act.”

Law Dictionary, 6th Ed.). The House Bill reported that the LHWCA

would cover a “barge, lighter, tug, dredge, vessel or other ocean, lake,

river, canal, harbor or floating craft... .” H.R. No. 1767, 69th Cong. 2d

Sess. at 2 (1927) (emphasis added). Congress deleted “a master or

member of a crew of any vessel” from coverage. By listing only the term

“vessel” in its exclusion, it is fair to infer that the other “floating craft”

were to maintain LHWCA coverage.

* The “voyage” continued to play a major role in Jones Act

jurisprudence as in 1937, the Court in Calmar S.S. Co. v. Taylor, 303

U.S. 525 (1938), laid to rest the issue at the turn of the 20th Century

concerning the length of payment of maintenance and cure and

extended maintenance and cure for the sick or injured seaman past the

end of the voyage, until the point of maximum cure. Clearly, the rights

to maintenance and cure continued to be connected to a vessel on a

voyage.

* Congress intended the LHWCA to cover all those maritime

workers who could not be covered by state laws. See 1 Force & Norris,

The Law of Seamen, §2:6 at 2-23 (2003).

15

D. The Vessel On A Voyage Away From Home

Was The Seaman’s Home And Therefore

Was A Jones Act Vessel

The vessel on a voyage away from home provided food,

care and lodging to the seaman which was to continue

during the seaman’s disability. See The Henry B. Fiske,

141 F. 188 (D. Mass. 1905) (holding that a seaman is to

receive the same value of room and board that he was

receiving while he was on the ship). As it was before

Haverty, the Jones Act vessel was a “home” or a “place to

live” for the seaman as set forth in Judge Lumbard’s

dissenting opinion in Weiss v. Central Railroad Co. of New

Jersey:

The most important single factor which has justi-

fied the creation of the remedy for seamen and

for no one else is, I think, the peculiar relation of

the seaman to his ship. The typical seaman looks

to his ship, not only as the place where he works,

but as a home. It is his ‘framework of existence.’

Aguilar v. Standard Oil Co., supra, 318 U.S. at

732. Thus, when sickness makes it impossible for

him to work on the ship, he is deprived of a place

to live as well as a place to work. Under these

circumstances, it was appropriate to require the

shipowner to provide him with a means of main-

taining himself during his illness.

235 F.2d 309, 314 (2d Cir. 1956) (Lumbard, J., dissent-

ing).” ’

* The Weiss majority found that the “vessel” was engaged on a

“voyage” by making short trips in the harbor. 235 F.2d at 313. Such a

holding unnecessarily dilutes the meaning of a “voyage” for mainte-

nance and cure purposes. See The Ben Flint, supra.

16

The Court’s previous decisions are not inconsistent

with a “vesse! as a home” test under the Jones Act. In

Norton v. Warner, the employee worked on a barge that

had no motive power of its own, but the barge provided

him with quarters. 321 U.S. 565 (1944). He bought his own

meals and lived, ate and slept on the barge. And he was

continuously aboard. 321 U.S. at 567. The court reversed

the Deputy Commissioner’s finding that he was entitled to

compensation under the LHWCA, and found that he was

“a master or member of a crew of any vessel.” Dictum in

the case might suggest a broader meaning to the word

“vessel,”” but the Court did not have to address the limits

of the meaning of a vessel under the Jones Act. Accord-

ingly, Norton cannot be seen to be controlling authority for

broadening the meaning of the word “vessel” in the

LHWCA beyond a vessel which provides the seaman with

a home or a place to live.

In several cases in the late fifties, the issue of Jones

Act vessel status arose but these decisions provided no

clear authority on the contours of a Jones Act vessel.” For

* “A barge is a vessel within the meaning of the act even when it

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

water.” Jd. at 571 (citations omitted).The court did refer to Revised Stat

Section 3, 1 U.S.C. §3 which defines a vessel as “every description of

watercraft or other artificial contrivance used, or capable of being used,

as a means of transportation on water.” Jd. at 571 n.4.

” Other cases have addressed the issue of whether the vessel was

“in navigation.” However, these cases are not apposite here, because the

question is not whether there was anything in navigation but whether

there was a “vessel” as Congress intended the meaning in determining

whether the LHWCA benefits or Jones Act rights would apply. See

Desper v. Star Rock Ferry Co., 342 U.S. 187, 188 (1952) (an employee

who was cleaning, painting and waterproofing boats which had been

beached for the winter was not a seaman under the Jones Act, as he

was not doing seaman’s work but work which “customarily (would) be

(Continued on following page)

17

instance, in Senko v. LaCrosse Dredging, an employee

aboard a dredge was held to be a Jones Act seaman but the

court specifically excluded from consideration whether the

dredge was a “vessel.” See 352 U.S. 370, 371 n.1 (1957)

(“no question has been raised at any time as to whether

the dredge involved here had the status of a ‘vessel’ at the

time of Petitioner’s injury”). Nor did the Court reach the

issue in Gianfala v. Texas Co., despite holding that an

employee who played a part in the operation of moving a

barge was entitled to have the jury decide whether he was

a Jones Act seaman. 350 U.S. 879 (1955) (per curiam).

The issue of what was a Jones Act vessel was dis-

cussed only in the dissent in Grimes v. Raymond Concrete

Pile Co., which was a short, per curiam decision reversing

the First Circuit which had held that a pile driver, who

worked on a fixed tower and who sustained injuries while

being transferred at sea in a “Navy life ring” from a tug to

the Texas Tower was not a seaman. 356 U.S. 252 (1958).

The case, however, does not answer the question posed by

Justice Harlan in his dissent, “[p]resumably the court does

not consider as a vessel this man-made island, the Texas

Tower, which was securely fixed to the ocean bed before

petitioner was injured.””

done by exclusively shore-based personnel”), West v. United States, 361

U.S. 118 (1959) and-Roper v. United States, 368 U.S. 20 (1961) (ships

that had been laid up in the “mothball fleet” were withdrawn from

navigation, so as not to be vessels in navigation for purposes of the

Jones Act); Butler v. Whitman, 356 U.S. 271 (1958) (the tug or barge

from which the employee fell and drowned were not in navigation).

* Id. at 255 (Harlan, J. dissenting).

18

Nonetheless, if the Texas Tower in Grimes was a

“vessel” under the Jones Act and LHWCA, such an inter-

pretation is not inconsistent with a “vessel as a home” test,

since it provided food and lodging to the crew.”

More recent decisions which concerned the necessary

connection of the seaman to the vessel are not dispositive

and do not address whether a Jones Act vessel is limited to

a certain class. In Southwest Marine v. Gizoni, the issue

was not whether the moving platform was a Jones Act

vessel but merely whether the employee working a listed

occupation under the LHWCA was precluded from being a

Jones Act seamen. 502 U.S. 81, 92 (1991). (“Because a ship

repairman may spend all of his working hours aboard a

vessel in furtherance of its mission — even one used exclu-

sively in ship repair work — that worker may qualify as a

Jones Act seaman.”)

Similarly, in McDermott International v. Wilander,

498 U.S. 337 (1991); Chandris v. Latsis, 515 U.S. 347

(1995), and Harbor Tug and Barge Co. v. Papai, 520 U.S.

548 (1997), the ships on which the employees worked did

provide food, lodging and care to the employees, but the

question was whether the employees had the requisite

connection to the vessel to qualify as Jones Act seamen.

Wilander, 498 U.S. at 364. (“[I]t is not the employee’s

particular job that is determinative, but the employee's

connection to a vessel.”) Thus, none of the Court’s prior

* In Grimes the court noted “when the tower was towed to sea,

petitioner with about 25 other workmen lived on the tower and kept it

in condition by operating air compressors, generators, and pumps to

expedite installation at the permanent site, as well as by performing

certain functions to keep it in safe tow.” 356 U.S. at 254.

19

cases preclude the adoption of the “vessel as a home” test

for Jones Act vessels.

Except for the Second Circuit’s decision rejecting the

“vessel as a home” definition in Weiss,” no circuit court has

attempted to explore the connection between the definition

of “vessel” and legislative history in distinguishing the

Jones Act from the LHWCA. Several tests have evolved for

defining a “vessel” under the Jones Act, some of which

attempt to distinguish vessels which are or are not covered

by the Jones Act on the basis that certain vessels present

risks peculiar to seamen which Congress intended to be

covered by the Jones Act. It is submitted that such tests

have no grounding in legislative history and are impracti-

cal to administer. The First Circuit in this case and in

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

1992) (en banc) held that a Jones Act vessel must be

primarily used in transportation of cargo or passengers,

and if not, then it must be actually navigating at the time

of injury. The Sixth Circuit in Hatch v. Durocher Dock and

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

Circuit in Johnson v. John F. Beasley Constr. Co., 742 F.2d

1054 (7th Cir. 1984), follow this approach.

* One court har defined the claimant’s connection to a vessel in

terms that would support a “vessel as a home” test. For example, in

rejecting the application of admiralty jurisdiction for an injured

employee working on a barge, the concept of a permanent attachment

to a vessel or fleet of vessels was discusseu in Whittington v. Sewer

Construction Company, Inc., 541 F.2d 427 (4th Cir. 1976), where the

court noted that the claimant neither “took his meals or slept on any of

the barges or towing vessels.” Jd. at 436. This language presents a clear

parallel to the Weiss “vessel as a home” test. See also Thibodeaux v. J.

Ray McDermott & Co., 276 F.2d 42 (5th Cir. 1960) (refusing to find

Jones Act status as the injured maritime employee “was a regular shore

worker. He lived, ate and slept at home.”)

20

The Fifth Circuit requires that the vessel must have

been built with the intent of performing a transportation

function and transportation had to be an important part of

the vessel’s business at the time of the accident. See

Manuel v. PA.W. Drilling & Well Service, 135 F.3d 344

(5th Cir. 1998). The Second Circuit approved part of the

Fifth Circuit’s test but rejected the need for the vessel to

be built for transportation purposes and focused instead

on its present use as a means of transportation or a work

platform. See Tonneson v. Yonkers Contracting Co., 82 F.3d

30 (2d Cir. 1996).

Finally, the Ninth Circuit defines a Jones Act vessel as

to what it was not. See Martinez v. Signature Seafoods,

303 F. 3d 1132, 1135 (9th Cir. 2002) (quoting Katriner v.

Unisea, Inc., 975 F. 2d 657, 660 (9th Cir. 1992)). A vessel is

not a Jones Act vessel if it is “‘incapable of independent

movement over water, [is] permanently moored to land,

ha[s] no transportation function of any kind, and ha[s] no

ability to navigate.’”

Missing from these cases is discussion on the legisla-

tive history as to the meaning of “vessel” under the

LHWCA which, in turn, defines a Jones Act vessel. It is

submitted that the link between the meaning of “vessel”

and the differences between the Jones Act and the

LHWCA must be explored.

21

Il. THE TERM “VESSEL” SHOULD BE INTER-

PRETED IN ACCORDANCE WITH THE ENDS

TO BE ATTAINED BY THE LHWCA AND JONES

ACT

No “transportation function” reference can be found in

the legislative history of the Jones Act or the LHWCA in

reference to vessels. Further, nothing in the legislative

history of the LHWCA or the Jones Act supports the

proposition that Congress intended the word “vessel” to

have the broad, jurisdictional meaning in the Rules of

Construction Act. 1 U.S.C. §3.

Arguing essentially that the term “vessel” in the

LHWCA carries old statutory baggage, Petitioner and

amici have pointed to a “cardinal rule of statutory con-

struction” that where Congress borrows terms of art which

have accumulated in the legal tradition in meaning of

centuries of practice, it adopts the cluster of ideas that

were attached to the borrowed word in the body of learn-

ing from which is was taken and the meaning its use will

convey to the judicial mind unless otherwise instructed.

Petitioner’s Brief at 13 (quoting Molzof v. United States,

502 U.S. 301, 307 (1992)); see also Wilander, 498 U.S. at

342. However, this cardinal rule must yield to anther tenet

of statutory construction. Statutory language “must be

read in light of the mischief to be corrected and the end to

be attained.” Wilander, 498 U.S. at 349 (quoting Warner v.

Goltra, 293 U.S. 155, 158 (1934)).

Both the LHWCA and the Jones Act were statutes

meant to provide relief to different sets of maritime

workers. In the case of Osceola seamen, attempts to confer

a negligence remedy had been thwarted, see Chelentis v.

Luckenbach S.S. Co., 247 U.S. 372 (1918), and had finally

succeeded with the Jones Act. In the case of maritime

22

workers who were not Osceola seamen, Congress searched

for a valid compensation remedy when state laws could

not be constitutionally applied to these workers. See

Southern Pacific, 244 U.S. at 215.

In enacting the LHWCA, Congress demonstrated a

clear preference for compensation benefits over common

law suits:

Workmen’s compensation has come to be univer-

sally recognized as a necessity in the interest of

social justice between employer and employee. It

is the modern substitute for the old common-law

remedy afforded through actions at law for dam-

ages, and promptly affords relief to the injured

employee by furnishing medical attendance and

supplies immediately upon the occurrence of the

injury or as soon thereafter as possible and com-

pensation during the period of his illness or in-

ability to pursue his usual employment, and in

case of death, financial assistance to his depend-

ents, without the delay and expense which an ac-

tion at law entails.

H.R. Report No. 1767 supra. at 20.

Congressional preference for the worker’s compensa-

tion remedy must be read with a practical examination of

the differences between a Jones Act seaman and a harbor

worker, in order to devise a valid test for what is a vessel

under both the Jones Act and the LHWCA. There are

distinct differences between the two. These differences

assist in articulating a bright line test.

A defining feature of a Jones Act seaman is that he or

she receives food, lodging and medical care aboard the

vessel and is entitled to a continuance of that maintenance

and care, when he is separated from the ship due to

23

disability as a result of illness or injury in the service of

the ship. Calmar S.S. Co. v. Taylor, 303 U.S. 525 (1938);

Cortes v. Baltimore Insular Lines, 287 U.S. 367 (1932). It

is not an award of compensation for damages for the

disability a seaman suffers. See Calmar, 303 U.S. at 528.

When a Jones Act seaman is taken ill or injured on a ship,

the shipowner must provide fer the equivalent food,

lodging and care that is comparable to what the seaman

received aboard the ship. Jd. This doctrine of maintenance

and cure is steeped in ancient jurisprudence going back to

the Code of Oleron. See Oleron Sea Code, Laws of Oleron,

Art. VI (q soted in 1 Benedict on Admiralty, 1-22 (7th Ed.

1974)). It cannot be contracted away. See Harden v.

Gordon, 11 F. Cas. 480 (C.C.D.Me. 1823) (Story, J.); Bar-

nes, 900 F.2d at 637.

The maintenance and cure obligation exceeds the

scope of LHWCA compensation. Unlike a land worker who

must show disability “arising out of employment,” to

receive maintenance and cure, the Jones / *t seaman need

not prove any causation between the injury/illness and his

employment. See Force & Norris, supra, §26:2 at 26-5. The

illness or injury need only manifest itself “in the service of

the ship and therefore is often sustained or contracted

before the seaman joins the ship.” Jd. Unlike the harbor

worker who must prove a work related injury, the seaman

need not be at work aboard the vessel to claim mainte-

nance and cure for any injury or illness he suffers. See

Aguilar v. Standard Oil, 318 U.S. 724 (1943), (holding

injury on shore leave qualifies for maintenance and cure).

So long as the seaman is answerable to the call of the ship

at the time disability occurs, he is entitled to maintenance.

See Farrell v. United States, 340 U.S. 511 (1949).

The continuity of the benefits paid to the seaman in

disability is the key to the definition of a Jones Act vessel.

24

The Jones Act obligation follows the maintenance and cure

obligation, which is the extension during disability of

benefits the seafarer received while working on the ship. If

he received food, care and lodging while working, he

should receive it in disability.

It is awkward and unnecessary to extend those

benefits during the disability of maritime workers who

receive no such food, lodging or medical care aboard the

vessel but who are eligible for compensation under the

LHWCA. On the other side of that coin, it would be harsh

. to deny immediate LHWCA compensation benefits to a

maritime worker on a vessel that does not provide food,

lodging or care and to force the worker to accept mainte-

nance and cure on the basis that he worked on a vessel

broadly defined to be a Jones Act vessel by a standard

wholly unconnected to the legislative history of the Jones

Act and LHWCA. Nor can any Congressional intent be

discerned that the definition of a vessel be sufficiently

ambiguous to allow the worker to pursue both remedies,

which is the state of the law today.

Ill. THE DREDGE IN THIS CASE WAS NOT A

JONES ACT VESSEL

One of the advantages of the “vessel as a home” test

for Jones Act vessels is the ease and clarity of its applica-

tion in court in Jones Act cases and by Administrative Law

Judges in LHWCA cases. The bright line drawn by the

Court with the “vessel as a home” test will rarely result in

factual issues necessitating a jury decision on whether the

seaman worked on a Jones Act vessel. If the vessel pro-

vided food, care and lodging to the seaman, it is a Jones

Act vessel.

25

Summary judgment was appropriate here. The SU-

PER SCOOP was not Petitioner’s home but it was his

workplace. J.A. 45. The Petitioner did not sleep on the

SUPER SCOOP. J.A. 17, 45. He did not receive any medi-

cal care aboard the dredge and, although there were

dining facilities, there is no record of a cook or anyone to

provide Petitioner with meals aboard the dredge. Id.

Accordingly, Petitioner received no food, care or lodging

aboard the dredge and it would be awkward and unneces-

sary to provide him with the maintenance and cure, when

he did not receive such maintenance, care or cure when he

- worked aboard the vessel.

Here, there are no such facts that could place the

SUPER SCOOP into a category of a home, where the

seaman is fed, lodged or cared for. Because the Petitioner

did not sleep aboard the vessel or was not cared for by the

vessel the Petitioner is similar to a land-based worker. J.A.

17, 45. There is no jury issue to determine if the vessel

provided him with food care or lodging. The vessel was his

workplace and he was entitled to LHWE€A compensation.

Consequently, no genuine issue of material fact as to

whether the SUPER SCOOP is a Jones Act vessel under

the meaning of the Jones Act and LHWCA arose and

therefore the District Court was correct in rendering

summary judgment. See Fed.R.Civ.P. 56; Anderson uv.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

+

CONCLUSION

WHEREFORE, Signal respectfully joins the Respon-

dent in asking that this Court affirm the decision below

and for identifying that in order for a watercraft to be a

Jones Act vessel, the watercraft must act as the injured

seaman’s home in providing food, care and lodging.

Respectfully submitted,

JOHN J. WALSH

Counsel of Record

ZACHARY M. BARTH

FREEHILL, HOGAN & MAHAR LLP

80 Pine Street

New York, NY 10005

(212) 425-1900

(212) 425-1901

THOMAS J. SCHOENBAUM

2000 H Street, NW

Washington, DC 20052

(202) 994-0391

(202) 994-1684

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