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

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

No. 03-814 | MAY 24 2005

tics the cue |

3n The

Supreme Court of the Anited States

WILLARD STEWART,

Petitioner,

DUTRA CONSTRUCTION CoO.,

Respondent.

On Writ Of Certiorari To The

United States Court Of

For The First Circuit

BRIEF OF UNITED BROTHERHOOD

OF CARPENTERS AND JOINERS

OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JOHN T. DECARLO JOHN R. HILLSMAN

General Counsel Counsel of Record

DECARLO, CONNER & SELVO MCGUINN, HILLSMAN &

333 South Fremont Avenue, PALEFSKY

9th Floor 535 Pacific Avenue

Los Angeles, California San Francisco, California

90071 94133

(213) 488-4180 (415) 421-9292

Attorneys for the

United Brotherhood of Carpenters

and Joiners of America

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

OR CALL COLLECT (402) 342-2831

1 AP Ph ergata : QUESTION PRESENTED

gay oa eek eke To qualify for “seaman” status under the Jones Act, a

eS gee gee eer | worker must have an “employment-related connection to a

fg ae A 2 setae vessel in navigation.” Chandris, Inc. v. Latsis, 515 U.S.

age 347, 357 (1995). What is the legal standard for determin-

eo Vey | ing whether a special purpose watercraft (such as a

pear dredge) is a Jones Act “vessel?”

w ss

, is

a? CS rs

fare r

na"

P .

s _

‘

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .........ccccscccscsessesseseseeseseeseeees i

INTEREST OF THE AMICUS CURIAE ......ccccccecessesues 1

SUMMARY OF ARGUMENT. .........cccccsccssssesesseseesesveeee 2

Ni, a 11

I. JONES ACT JURISPRUDENCE NEEDS A _

UNIFORM VESSEL DEFINITION .................. 11

A. 33 U.S.C. § 902(3)G) makes an employ-

ment related connection to a vessel the es-

sential element of seaman status............... 11

B. The lower courts have not been able to

agree on a vessel definition ......................+ 12

II. 10U.S.C. §3 PROVIDES THE ONLY WORKA-

BLE STANDARD FOR DETERMINING SPE-

CIAL PURPOSE VESSEL STATUB................... 13

A. Until recently, the admiralty had always

accommodated special purpose vessels ...... 13

B. Attempts to exclude special purpose ves-

sels under the work platform doctrine

have proven prolix and unpredictable........ 14

C. Attempts to exclude special purpose wa-

tercraft under the “actual navigation test”

articulated in DiGiovanni run afoul of

CORIO ...<<0cccsssessescestnntesaiaaeee 17

Ill. CHANDRIS AND THE SUBSTANTIAL CON-

NECTION REQUIREMENT HAVE MOOTED

THE NEED TO EXCLUDE SPECIAL PUR-

FUGED VEIIEBEAD occccccnscecsesecssnensnsespipenisanianaialll 19

A. This Court restated the elements of sea-

man status in Chand is...............ccccccceeeeeeee 19

TABLE OF CONTENTS - Continued

Page

B. Some of the elements restated in Chandris

were designed to be inclusive .................+++. 20

C. The principal restrictions on seaman status

were restated in Chandris as the substan-

tial connection requirement .................:00++ 22

IV. SINCE THERE IS NOTHING ABOUT 33

U.S.C. §902(3(G) INDICATING THAT IT

DOES NOT USE THE WORD “VESSEL” TO

INCLUDE EVERY DESCRIPTION OF WA-

TERCRAFT USED, OR CAPABLE OF BEING

USED AS A MEANS OF TRANSPORTATION

ON WATER, THE PROPER LEGAL STAN-

DARD FOR DETERMINING THE STATUS

OF SPECIAL PURPOSE WATERCRAFT UN-

DER THAT STATUTE IS 1 U.S.C. § 3.............. 26

(eT 27

Te App. 1

TABLE OF AUTHORITIES

Page

FEDERAL CASES

American Dredging Co. v. Miller, 510 U.S. 443

ST hiriessesteticnettianiietiiaiateciadatiieattieiniaiasian lie ieateaiinaadatiem cial laid 27

Beddoo v. Smoot Sand & Gravel Corp., 128 F.2d

EE ars. Seer 3,4

Bernard v. Binnings Construction Co., 741 F.2d 824

ERRNO passim

Blanchard v. Engine & Gas Compressor Services,

Inc., 575 F.2d 1140 (Sth Cir. 1978) ....................00..-0eeeeeees 5

Brinegar v. San Ore Construction Co., 302 F. Supp.

tS SS noone seer oe Oe Sve 5

Brown v. Gardner, 513 U.S. 115 (1994) ....000...ccccce ce eeeeeeeee 12

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

yD Se cnscinscnninrinntesinitceititatniinseieitanieteiaatinaaiidahncetadaiidatls 5

Butler v. Ellis, 45 F.2d 951 (4th Cir. 1930) .....0.......00000000... 2

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

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

TS EE 6, 15, 18, 21

Cope v. Vallette Dry Dock Co., 119 U.S. 625 (1885)....... 5, 15

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

ee enctieneenenesnpantnnnsteiiieneianaiaitiah ites tsdneta tee daa 21

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

FES Fae ctcinninnsccciinindbetsncintanmaninaniansteiiesaiel passim

DiGiovanni v. Traylor Brothers (“DiGiovanni II”),

fo En 12

DiGiovanni v. Traylor Brothers (“DiGiovanni III”),

Oe eS i eriniceiircinniitisnciticesianniicincnianntateds 12

TABLE OF AUTHORITIES — Continued

Page

Early v. American Dredging Co., 101 F. Supp. 393

ERTITER, Tit ncncccnssniientedbencesienenaasieniidnisiniaidainiiabeneiediiiindl 5

Ellender v. Kiva Construction & Engineering, Inc.,

909 F.2d 803 (5th Cir. 1990) ...................ccccceeeeeees 7, 14,17

Ellis v. United States, 206 U.S. 246 (1907)..........ccccccccceeeeee 5

Endeavor Marine v. Crane Operators, Inc., 234 F.3d

Te a a Bi tercntenrctiniincceiniininienngtednisiecsisitintiiaiasess 22

Evansville & Bowling Green Packet Co. v. Chero

Cola Bottling Co., 271 U.S. 19 (1926) ...........cccceceeeeeeeeees 5

Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69 (5th

Gi, BD ccccnicncrctacsisninasinantaiatiatinieiteeindiingaiipamiiaiaiaieditiiiiimmaia, 2

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

Ce , FI cccccncssiccecensiiicinneprnsisinmmapiniinaiinenbinanbadiinn 2,5

George Leary Const. Co. v. Matson, 272 F. 461 (4th

ee TP cccccrenresiicnarninnstesrnreniitccensiiiitiintaiaahianaieaaiaaiataiiiieaiaaiiaiel 5

Gianfala v. Texas Co., 350 U.S. 879 (1955)......-.0:-ssseseneenes 10

Griffith v. Wheeling Pittsburgh Steel Corp., 521

i | t 9). > a eee 10

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

SI conscinncsiennstinrennatiennanieniaanamsinatetimiagaetaiaisessaiiacsitiaatalieidia 10

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

SEY GTI cenencnasiinanaitasiiiitinsinatinstimessitini asa tiaamntiiadiiia 4,18

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

STITT cccenenennenenveniiinieninasaptedieiameninaiinelaiel 11, 18, 19, 22, 23

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

Sa eee 7

TABLE OF AUTHORITIES - Continued

Page

Hicks v. Ocean Drilling and Exploration Co., 512

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

CaO intcnstanineeseiicintnsnininapeicitceeanniiaiaiiiibiaataiinaiaiadanaumsatepnss 5,9

Hill v. Diamond, 311 F.2d 789 (4th Cir. 1962).................... 9

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

ED: Se innpeniciiiiattesnicnseaesinrestnctatanteniaiciananbiniettetiaa 3, 7,17

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

ee 9, 21

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

St caiceseniictdeenndDtitatnienntasnaieniatinalitiiiuititinaiibiaaiailaaiaitialiiaieaat 9, 27

Kibadeaux v. Standard Dredging Co., 81 F.2d 670

EEE UIE ninsinnectencccnsiininilonitiapnsciticinasiianiinitbaiaiadiiaiaineiaeaas 5

Koernschild v. W.H. Streit, 834 F. Supp. 711 (D.N.J.

STE ccsecsetseriecssenseciteniteiteiibeibambititaiaanatiticeterineatiaicianuaaiiaas 16

Leonard v. Transoceanic Sedco Forex, 189 F. Supp.

ey EEE Ws Sa niciicineetincuticsnindiiesiinadetamianiadtitanddeesients 21

Lorimer v. Great Lake Dredge & Dock Co., 2002

eT adicncicncnieninianiiaiitamsiiindaisiaiiatiliniatbiniass 20

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

F.3d 344 (Sth Cir. 1998)..................sscccceeees 3, 7, 15, 16, 17

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

Beas STE sensntenienniennsnssninninnsednnsneanedatiiiitnmeiaiiegeaies 9, 26

Maryland Casualty Co. v. Lawson, 94 F.2d 190 (5th

Sars SaTUIITED saecinisiihacirineniaiinicierenetiltenitiamaisitiatbaiiaimaetiaiatihaaiaiaas 5

McCarthy v. Bark Peking, 716 F.2d 130 (lst Cir.

STi ccninecnieiseuinpurincetbtenieeincainaainitaiiia iinet 12

McDermott, Int. v. Wilander, 498 U.S. 331 (1991).....passi

Vii

TABLE OF AUTHORITIES - Continued

Page

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

gL ee 21

Melanson v. Bay State Dredging & Contracting Co.,

62 F. Supp. 482 (D.C. Mass. 1945) ...............cccccccceeeeeeees 2

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ........... 5, 27

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

I Ge cnctcnenersnsantnintiintinmnnniamnneiemenssmistinibntnaiinninints 12

Norton v. Norton v. Warner Co., 321 U.S. 565

GE cccccensctintncnsscessntniinionscesanemmiciatinibimeapaientl 5, 13, 23, 26

O’Donnell v. Great Lakes Dredge & Dock Co., 318

a 3, 23

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

ITIP ccsrecosncnencennnanainitesiieninatilineiadansiepiiinandnmianaes 5, 6, 8, 13, 24

The Pioneer, 30 F. 206 (E.D.N.Y. 1886)............:cccccccceeeseeees 2

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

BR GG, Fi, Be cctentancsncsmnitnnsinenqmenentiimmmen 2

Sala v. Gates Construction Corp., 868 F. Supp. 474

3 SS 12

Saylor v. Taylor, 77 F. 476 (4th Cir. 1896) ..............0000 2,13

Scindia Steam Navigation Co. v. De Los Santos,

GER WE, Fa ee cccccsercenitnicuntentintiniimaneniatinne 12

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

CED ccconctuinscettuianinemnennnstiniiianeiennaaninmnatin 2, 18, 23

Shade v. Great Lakes Dredge & Dock Co., 154 F.3d —

TOL). a eee ee 2

Sharp v. Johnson Bros. Co., 917 F.2¢ 886 (5th Cir.

Ee 16, 17

TABLE OF AUTHORITIES -— Continued

Page

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

earn reer na CBE Een cen 8, 11, 18, 23

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

P.Dd LADD (Oth Cle. 1GBED .....cocccccccccccccccccccccccccccccccceees 9, 27

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

Re rer Sea FORO ONTO 3

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

F.3d 461 (1st Cir. 2000) .0..........ccccccccecceeeeeeeeees 7, 11, 12, 18

Stewart v. Dutra Const. Co. (“Stewart IT”), 343 F.3d

I a ininiinleniitd eitlanatitinlnnield eeleaaeeae 12

Swanson v. Marra Brothers, Inc., 328 U.S. 1 (1946)........ 1l

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

ERR eee aoe ere aE 7

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

EEE UE earernr one 24

Warner v. Goltra, 293 U.S. 155 (1934) .........ccccccccccceeee eens 23

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

I I a ili ciaicinteatiatititiaiaesleeel iaetimaaiben ieee 24

Estate of Wenzel v. Seward Marine Service, Inc., 709

I SC 27

West v. United States, 361 U.S. 118 (1959)....................... 21

Williams v. Western Pacific Dredging Co., 441 F.2d

RII, SII asistencia teas datiaheeceeriniaitdiicieatenditianadiiie 2

Woods v. Merrill-Stevens Dry Dock & Repair Co., 14

F. Supp. 208 (S.D.Fla. 1986)..........5......ccccccccssseseeseeeeeeeees 3

TABLE OF AUTHORITIES - Continued

Page

STATE CASES

Covington v. Standard Dredging Corp., 61 So. 2d

BOG GERD, BP ccccesvecceressssesssensesssessvesssssnsescnsesmnenanccsnsescese 4

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

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

ee 7, 20

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

4th 466, 124 Cal. Rptr. 2d 97 (2002) 0.0.00... ccccccseeeeeseneees 7

FEDERAL STATUTES

Bits Ob B ercecenenchrensnenteresnstensemsnemamamnemneniaianins 4, 26

8 passim

SB UB.G. 9 COG cnccccvceccetecezeccccsccaccccccsseccsessses 11, 13, 26

BD CRE, © Ge eecececcnecsssesscsssesszssnvsssnceesesensssnssqumsessctneen 11

ET en 12

GB Gat. GR, Ga, FB cecnceceqrvcvecscccccccvsvscsesesscensensscnsnssssnssessemne 4

GB TR LAGAA, © GB ecescscecsscnsvsssssessezssesssersessssnesnssnsnsssnessssesceens 2

MISCELLANEOUS

46 C.F.R. § 197.436(c)(3)............:ccccccccccceeseseessseereeeseseneenees 24

SCHOLARLY COMMENTARY

E. Benedict, American Admiralty Law, § 241 (1850)....... 13

Edwin J Bull, Seaman Status Revisited: A Practical

Guide to Status Determination, 6 U.S.F.Mar.L.J.

ST CTI oss ceeerssenssitenessesiinbanbintieiiasliniarsnemensiatiaitesieiaiiameetenatieed 21

TABLE OF AUTHORITIES — Continued

Page

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

in Admiralty: The Challenges Facing the Admi-

ralty Judges of the Lower Federal Courts, 75 Tul.

SB eae 13

Steven F. Friedell, 1 Benedict on Admiralty, § 165

(7th ed. 1958 & 2003 supp.) .............cccccccssssssseeeeeeees 13, 27

John R. Hillsman, Still Lost in the Labyrinth: The

Continuing Puzzle of Seaman Status, 15

U.S.F.Mar.L.J. 49, 54 (2008)...........cccccccsssssseessseeecees 12, 21

John R. Hillsman, Have All the Recent Twists and

Turns in the Jones Act Left Deep Sea Divers High

and Dry?, 11 U.S:F.Mar.L.J. 47 (1998-99).................0004 25

John Maxton-Graham, The Only Way to Cross, .

a 25

David W. Robertson, A New Approach to Determin-

ing Seaman Status, 64 Tex.L.Rev. 79 (1985)................. 23

David W. Robertson, Continuing Issues in the

Rights of Injured Maritime Workers in the

Wilander-Gizoni Era, 24 Rutgers L.J. 443 (1999)......... 21

David W. Robertson, The Law of Seaman Status

Clarified, 23 J. Mar. L. & Com. 1 (1992)...................0604 16

David W. Robertson, The Supreme Court’s Ap-

proach to Determining Seaman Status: Discern-

ing the Law Amid Loose Language and

Catchphrases, 34 J. Mar. L. & Com. 547, 570 & n.

ER ee cicccccicnccncuictsiililinatsinsieiisitiiasiapinasibithtaaitiassiiilataaiial 23

John G. Rogers, Origins of Sea Terms (4th ed.,

Mystic Seaport Museum, 1985)..................cccceceeeeeereeeees 15

1 Thomas J. Scheonbaum, Admiralty & Maritime

eS 5 RIESE RPS ra pene nana 5, 16

TABLE OF AUTHORITIES -— Continued

Page

John R. Wagner, Jr., Applicability of Jones Act (46

U.S.C. § 688) to Workers Connected with Opera-

tion of Dredges, Drilling Platforms, Derricks, or

Similar Special-Purpose Equipment, 92 A.L.R.

Fed. 733 (1989 & 2004 Supp.) .........:cccccceeecereereeeeeeeeeeeeeees 2

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae is filed, with the consent of

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

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

an international labor organization with affiliates in the

United States and Canada. It enjoys a total membership of

more than 531,000 working men and women. Many of

those men and women are employed upon the navigable

waters of the United States as commercial divers, diver

tenders, pile drivers, carpenters, riggers, and welders.

They build, repair and demolish piers, wharves, bridges,

oil platforms, submarine pipelines, underwater transit

tubes, and open ocean sewer outfalls. They typically

perform these tasks from the decks of crane ships, drilling

ships, tug boats, dive boats, derrick barges, spud barges,

dredges, mud scows, jack-up rigs, work-over rigs and other

special purpose watercraft. Such work often invests the

people who perform it with seaman status under the Jones

Act. 46 U.S.C.A. § 688. That status, in turn, gives many

UBCJA members access to a “trilogy of heightened legal

protections.”” The UBCJA is interested in this case be-

cause the Court’s decision will affect its members’ rights to

claim these protections.

* This brief was prepared on behalf of the UBCJA by its under-

signed counsel. It was not authored, in whole or in part, by counsel for

any party. No person or entity other than the UBCJA, or its counsel,

made a monetary contribution to the preparation or submission of the

brief.

* Often called the “seaman’s remedial trident,” these remedies

include the rights to sue for Jones Act negligence, unseaworthiness and

maintenance, cure and found. Chandris, Inc. v. Latsis, 515 U.S. 347,

354 (1997).

SUMMARY OF ARGUMENT

Dredge hands have always been treated as seamen by

the maritime law’ and dredges have always been treated

as vessels.‘ We cannot find a single reported case holding

that a dredge is not a vessel — except for the decision

below.” That decision is based on the First Circuit’s ruling

* See, e.g., Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957);

Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143 (3d Cir. 1998);

Williams v. Western Pacific Dredging Co., 441 F.2d 65 (9th Cir. 1971);

Gahagan Const. Corp. v. Aramao, 165 F.2d 301 (2nd Cir. 1948); Ramos

v. Universal Dredging Corp., 547 F.Supp. 661 (D.C. Ha. 1982); Melan-

son v. Bay State Dredging & Contracting Co., 62 F.Supp. 482 (D.C.

Mass. 1945). As the Fourth Circuit explained more than 100 years ago,

when it upheld seaman’s rights for a Virginia dredge hand in Saylor v.

Taylor, 77 F. 476, 479 (4th Cir. 1896), “in all times and in all countries

those who are employed upon a vessel in any capacity, however humble,

and whose labor contributes in any degree, however slight, to the

accomplishment of the main object in which the vessel is engaged, are

clothed by the law with the legal rights of mariners, ‘no matter what

may be their sex, character, station or profession.’” Jd.

* The first reported case to treat a dredge as a vessel under

maritime law was The Pioneer, 30 F. 206, 207 (E.D.N.Y. 1886). By 1930,

so many courts had followed suit, the Fourth Circuit could correctly

note that the vessel status of dredges “is sustained by the overwhelm-

ing weight of authority.” Butler v. Ellis, 45 F.2d 951, 955 (4th Cir. 1930).

* In a recent A.L.R. Annotation entitled Applicability of Jones Act

(46 U.S.C: § 688) to Workers Connected with Operation of Dredges,

Drilling Platforms, Derricks, or Similar Special-Purpose Equipment, 92

A.L.R. Fed. 733 (1989 & 2004 Supp.), the author, John R. Wagner, Jr.,

cites many published opinions treating dredges as Jones Act vessels, see

id. at § 3(a), and seven that do not. Jd. at § 3(b). One of those seven is

the decision below. But a close examination of the other six shows that

Mr. Wagner is misreading them. Many, if not all of these cases, are no

longer good law. Most of them turned on jurisdictional issues, but not

one them on vessel status.

The first of Mr. Wagner’s cases, Fuentes v. Gulf Coast Dredging Co.,

54 F.2d 69 (5th Cir. 1931), involved a plaintiff who was hurt working on

a dredge that lay partially aground at the end of a channel it had dug

(Continued on following page)

off Galveston Bay. The district court denied his Jones Act claim on the

merits, and the Fifth Circuit affirmed, ruling sua sponte that the

district court had lacked subject matter jurisdiction because the tort

had occurred on a dredge doing landfill work in marginally navigable

water. But see O'Donnell v. Great Lakes Dredge & Dock Co., 318 US.

36, 39 (1943) (holding that the Jones Act covers any injury that occurs

in the course of a seaman’s employment and not just those that occur

afloat). Assuming arguendo that Fuentes was sound, it did not hold,

state, or even fairly imply that the dredge was not a vessel.

Woods v. Merrill-Stevens Dry Dock & Repair Co., 14 F.Supp. 208,

209-10 (S.D.Fla. 1936) expressly followed Fuentes in holding that

dredge work at a shipyard was too “purely local” to fall under the

federal courts’ admiralty jurisdiction. It did not consider vessel status

either.

Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir. 1989) upheld

the district court’s denial of Jones Act damages to a plaintiff who had

been injured aboard a dredge that was deepening a land-locked,

irrigation channel lying wholly within the State of California. The

decision was handed down six years before this Court’s lodestar

decision in Chandris, and concluded that the land-locked situs of the

project in question precluded a finding of seaman status at the time of

injury, even though the plaintiff had been employed by the defendant

for a number of years, aboard several different dredges, on a variety of

other projects, all of which had occurred on navigable waters, because

the “fleet seaman doctrine” neither obtained in the Ninth Circuit nor

encompassed an injury “arising from service to a vessel in non-

navigable waters.” 869 F.2d at 525 (emphasis added); but see Chandris,

515 U.S. at 363 (holding that courts should not employ “a ‘snapshot’ test

for seaman status, inspecting only the situation as it exists at the

instant of injury”). There is thus nothing in the decision to suggest that

a dredge is not a vessel.

The watercraft involved in Hurst v. Pilings & Structures, Inc., 896

F.2d 504 (11th Cir. 1990), was not a dredge at all but “a spud barge”

being used as a commercial diving platform. But see Manuel v. PA.W.

Drilling & Well Service, Inc.,135 F.3d 344, 351 (5th Cir. 1998) (holding

that “special purpose craft such as submersible drilling rigs, jack-up

rigs, and spud barges remain stationary while performing work, yet

retain their vessel status.”) (emphasis added).

The court in Beddoo v. Smoot Sand & Gravel Corp., 128 F.2d 608,

610 (CA D.C. 1942), excluded the plaintiff dredgerman from Jones Act

(Continued on following page)

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

1992) (en banc), and is manifestly erroneous. Rather than.

belabor it any further, or dwell on the particular status of

the Super Scoop, we have attached a Chronological Table

cataloguing the long and hitherto unbroken line of cases

holding or assuming that a dredge is a vessel. Appendix A

hereto. We will devote the remainder of this brief to the

much broader, and far more important question posed by

the Petition for Certiorari: What is the legal standard for

determining whether a special purpose watercraft is a

vessel?

Congress and the circuit courts have offered different

answers to that question. The Congressional standard is

codified in the Rules of Construction Act. 1 U.S.C. §§ 1 et

seq.; 61 Stat. 633, ch. 388. Those rules were adopted to

assist “in determining the meaning of any Act of Con-

gress,” 1 U.S.C. § 1, and provide that: “The term ‘vessel’

includes every description of watercraft or other artificial

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

transportation on water.” 1 U.S.C. § 3. This is not only the

coverage on the view — later “jettison[ed]” by this Court in McDermott,

Int. v. Wilander, 498 U.S. 331, 353 (1991) — that a seaman’s duties must

“pertain to navigation”. Although it expressed doubt about the proposi-

tion that mining sand from a navigable river bank should be considered

maritime, 128 F.2d at 610; but see Grubart v. Great Lakes Dredge &

Dock, 513 U.S. 527, 540 (1995) (“There are many cases holding that a

dredge, or a barge with a pile driver, employed on navigable waters is

subject to maritime jurisdiction ...’”), the Beddoo decision never

questioned the vessel status of the dredge involved.

The decision in Covington v. Standard Dredging Corp., 61 So.2d

644, 645 (Fla. 1952), refers to a dredge doing landfill work as a “vessel”

while excluding the worker from seaman status on the same mistaken

ground as Beddoo, supra.

“most widely used” definition of the term, 1 Schoenbaum,

Admiralty & Maritime Law § 6-9 (4th ed. 2003), it has

already been utilized by this Court in a variety of con-

texts. Since “[mJaritime tort law is dominated by statute,”

Miles v. Apex Marine Corp., 498 U.S. 19, 36 (1990), the

UBCJA agrees with Petitioner Stewart that 1 U.S.C. §3

supplies the best legal standard for determining the vessel

status of special purpose watercraft under the Jones Act.

Lower courts continued to use 1 U.S.C. § 3 for deter-

mining Jones Act vessel status right into the 1980's.’ Since

that section merely requires that a vessel be “practically

capable of being used as a means of transportation”,

Evansville, 271 U.S. at 19 (emphasis added), experienced

admiralty courts like the Fifth Circuit left Jones Act status

open to a whole armada of “special purpose structures not

usually employed as a means of transportation” and

entrusted close cases to the jury. Offshore Co. v. Robi-

son, 266 F.2d 769 (5th Cir. 1959). As Judge Wisdom’s

landmark decision in Offshore summed up: .

* See Norton v. Warner Co., 321 U.S. 565, 571 n. 4 (1944); Evans-

ville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S.

19 (1926); Ellis v. United States, 206 U.S. 246 (1907); Cope v. Vallette

Dry Dock Co., 119 U.S. 625 (1885).

” See, e.g., Burks v. American River Transp. Co., 679 F.2d 69, 75

(5th Cir. 1982) (river barge); Brinegar v. San Ore Constr. Co., 302

F.Supp. 630 (E.D.Ark. 1969) (dredge); Early v. American Dredging Co.,

101 F.Supp. 393 (E.D.Pa. 1951) (dredge); Gahagan Const. Corp. v.

Armao, 165 F.2d 301 (1st Cir. 1948) (dredge); Maryland Cas. Co. v.

Lawson, 94 F.2d 190 (5th Cir. 1938) (dredge); Kibadeaux v. Standard

Dredging Co., 81 F.2d 670 (5th Cir. 1936) (dredge); George Leary Const.

Co. v. Matson, 272 F. 461 (4th Cir. 1921) (pile driver scow).

* See also Blanchard v. Engine & Gas Compressor Services, Inc.,

575 F.2d 1140, 1142 (Sth Cir. 1978); Hicks v. Ocean Drilling and

(Continued on following page)

Attempts to fix unvarying meanings having a

firm legal significance to such terms as ‘seaman,’

‘vessel,’ ‘member of the crew’ must come to grief

on the facts. These terms have such a wide range

of meaning, under the Jones Act as interpreted in

the courts, that, except in rare cases, only a jury

or trier of facts can determine their application

under the circumstances of a particular case.

Even where the facts are largely undisputed, the

question at issue is not solely a question of law

when, because of conflicting inferences that may

lead to different conclusions among reasonable

men, a trial court cannot state an unvarying rule

of law that fits the facts.

266 F.2d at 779-80.

This Court expressly approved Offshore in 1991 when

it “jettisoned” the requirement that a Jones Act plaintiff be

aboard “primarily to aid in navigation,” and made all those

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

accomplishment of its mission’” eligible for seaman status.

Wilander, supra, 498 U.S. at 354-55 quoting Robison, 266

F.2d at 779. By then, however, some of the lower courts

had forgotten Judge Wisdom’s teaching. Beginning with

Cook v. Belden Concrete Products, Inc., 472 F.2d 999, 1001-

02 (5th Cir. 1973), even the Fifth Circuit started deciding

close cases as a matter of law because of a subtle distinc-

tion it had come to perceive between watercraft that were

“designed or used primarily for the transportation of

passengers, equipment and cargo,” and those whose

transportation function was only “incidental.” Bernard v.

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

(1976).

Binnings Constr. Co., 741 F.2d 824, 828-29 (5th Cir. 1984).

This distinction gradually swamped the broad language in

1 U.S.C. § 3, and led first to the so-called “floating work

platform” doctrine espoused to varying degrees by the

Fifth, Eleventh and Second Circuits,’ and ultimately to the

First Circuit’s radical departure in DiGiovanni.” Accord-

ing to DiGiovanni, and the decision below, “if a barge, or

other float’s ‘purpose or primary business is not navigation

or commerce,’ then workers assigned thereto for its shore

enterprise are to be considered seamen only when it is in

actual navigation or transit.” 959 F.2d at 1123 (original

emphasis). This capricious rule builds on Bernard and the

work platform doctrine, id., and permits maritime workers

like Petitioner Stewart to oscillate in and out of Jones Act

coverage in the course of their regular duties.

But as the Fifth Circuit eventually concluded in

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

347-50 (5th Cir. 1998)," the work platform doctrine was

* See, e.g., Ellender v. Kiva Constr. & Eng’g, Inc., 909 F.2d 803 (5th

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

Tonnensen v. Yonkers Contracting Co., 82 F.3d 30 (2nd Cir. 1996).

” DiGiovanni, 959 F.2d at 1123 (original emphasis). This rule is

even more restrictive than the work platform doctrine, 959 F.2d at 1128

(Torruella, J., dissenting), and has been adopted by both the Sixth

Circuit, Hatch v. Durocher Dock & Dredge, Inc., 33 F.3d 545, 547-48

(6th Cir. 1994), and the California Court of Appeal. See, Spears v.

Kajima Eng. & Const. Co., 101 Cal.App.4th 466, 475, 124 Cal.Rptr.2d

97 (2002); Gault v. Modern Continental / Roadway Const. Co., Inc. J.V.,

100 Cal.App.4th 991, 1005, 123 Cal. Rptr. 2d 85 (2002). It is also the

basis for the decision below. Stewart v. Dutra Const. Co., Inc. (“Stewart

I”), 230 F.3d 461, 467 (1st Cir. 2000), Pet. App. B, 22.

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

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

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

(Continued on following page)

formulated during the 1980's, before this Court’s decision

in Wilander, and more specifically, before this Court had

affirmed the putative seaman status of a San Diego

shipyard worker injured aboard “a floating work platform”

in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991).

For its part, DiGiovanni was decided in 1992, three years

before this Court handed down Chandris. Between them,

Wilander, Gizoni, and Chandris resurrected Judge Wis-

dom’s opinion in Offshore, see, Wilander, 498 U.S. at 353,

emphasized that it is the plaintiff’s connection to a vessel

and not his or her particular job that is determinative,

Gizoni, 502 U.S. at 88, rejected a “snapshot” or “moment of

the injury” test in favor of a scrolling inquiry assessing the

“total circumstances” of the plaintiff’s overall employ-

ment, Chandris, 515 U.S. at 363, and handed down the

“essential requirements” for seaman status:

“First ... an employee’s duties must contribute

to the function of the vessel or to the accom-

plishment of its mission. . . .

Second, and most important for our purposes -

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

sel in navigation (or to an identifiable group of

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

reversed and questioned the continued vitality of the work platform

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

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

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

fact existed ‘regarding whether the floating platforms [upon which

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

n. 8 (quoting Gizoni, 502 U.S. at 92). As the decision observed, “special

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

spud barges remain stationary while performing work, yet retain their

vessel status.” Jd. at 351.

such vessels) that is substantial in terms of both

its duration and its nature.’” Jd. at 368.

In retrospect, it is obvious that both DiGiovanni and

the work platform doctrine were fledgling, unsuccessful,

and in the end unnecessary attempts to restrict Jones Act

coverage to sea-based workers who “ ‘face those particular

perils to which the protection of maritime law, statutory as

well as decisional, is directed.’” 959-F.2d at 1122 quoting

Wilander, 498 U.S. at 354. Now that this Court has handed

down the substantial connection requirement to accom-

plish this very same goal, Chandris, 515 U.S. at 368, there

is no longer any need for such restrictive vessel defini-

tions. Many lower courts recognized, from the outset, that

there never was.

Unlike the courts following DiGiovanni, or the work

platform doctrine, the Ninth Circuit holds “that unusual-

looking craft whose purpose is not the transportation of

persons or things can be considered vessels under the

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

56 F.3d 1139, 1140, n. 1 (9th Cir. 1995). That Circuit still

leaves close questions to a jury, Martinez v. Signature

Seafoods, Inc., 303 F.3d 1132, 1136-37 (9th Cir. 2002), and

only denies vessel status to watercraft that have no

transportation function of any kind. Kathriner v. UNISEA,

Inc., 975 F.2d 657, 660-61 (9th Cir. 1992). The Third,

Fourth and Seventh Circuits have taken a similar tack.”

" See, e.g., Johnson v. John F. Beasley Construction Co., 742 F.2d

1054, 1063 (7th Cir. 1984). (“Any floating structure, including those

designed for special purposes, is a ‘vessel’. . . so long as the structure at

some time serves as a means of transportation on water.”); Hill v.

Diamond, 311 F.2d 789, 791 (4th Cir. 1962) (“It is well established that

many special purpose craft, such as dredges, floating derricks and

(Continued on following page)

This ecumenical approach to vessel status not only fits the

doctrinal framework established in Wilander and Chan-

dris by leaving the winnowing process to the substantial

connection requirement, it preserves the uniformity of

maritime law by conforming to the statutory rule of

construction codified in 1 U.S.C. § 3. It also sidesteps the

vague distinction between a watercraft’s “primary” and

“incidental” purposes and holds to the course set in Chan-

dris by eschewing “the temptation to create detailed tests

to effectuate the congressional purpose, tests that tend to

become ends in and of themselves.” 520 U.S. at 369. We

respectfully submit that none of the special purpose vessel

standards on which Dutra and its amici will rely can claim

any of these advantages. For these reasons, the UBCJA

supports Petitioner’s reliance on 1 U.S.C. § 3.

barges equipped for special purposes or operations are vessels within

the meaning of the Jones Act/.]”); Griffith v. Wheeling Pittsburgh Steel

Corp., 521 F.2d 31, 37 (3rd Cir. 1975) (upholding Jones Act vessel status

for a dumb barge because “the Supreme Court has extended that

remedy so as to permit claims brought for injuries incurred in the

construction of a “Texas Tower,” Grimes v. Raymond Concrete Pile Co.,

356 U.S. 252 (1958), and an off-shore oil rig, Gianfala v. Texas Co., 350

U.S. 879 (1955).”).

ARGUMENT

I. JONES ACT JURISPRUDENCE NEEDS A

UNIFORM VESSEL DEFINITION

A. 33 U.S.C. § 902(3)(G) makes an employment

related connecticn to a vessel the essential

element of seaman status.

Although the Jones Act neither uses nor defines the

term “vessel,” the LHWCA does.” That statute specifically

excludes “a master or a member of a crew of any vessel”

from its protection. 33 U.S.C. §902(3)G). Since that

phrase was designed to bar Jones Act beneficiaries from

LHWCA benefits, it is not only synonymous with the term

“seaman,” it codifies “the key requirement for Jones Act

coverage|.]” Wilander, 498 U.S. at 347; Swanson v. Marra

Bros., Inc., 328 U.S. 1, 6-7 (1946). It is therefore thor-

oughly settled that a Jones Act plaintiff must have an

“employment-related connection to a vessel in navigation.”

Chandris, 515 U.S. at 357. Defining the term “vessel” thus

remains the last, “pivotal issue” in this labyrinthine corner

of the law. See, Stewart I, 230 F.3d at 466, Pet. App. B, 21."

“ Unfortunately, the circular vessel definition set forth in the

LHWCA sheds no light on the seaman status question. According to

that definition, “the term ‘vessel’ means any vessel upon which or in

connection with which any person entitled to benefits ucder this Act

suffers injury or death arising out of or in the course of his employment,

and sid vessel’s owner, owner pro hac vice, agent, operator, charter or

bare ooat charterer, master, officer, or crew member.” 33 U.S.C.

§ 902(21).

“ This Court handed down four Jones Act decisions between 1990

and 1997. Wilander, supra; Gizoni, supra, Chandris, supra; Harbor Tug

& Barge Co. v. Papai, 520 U.S. 548, 554 (1997). But those cases did not

present an opportunity to address the question of vessel status. See gen.

(Continued on following page)

12 |

B. The lower courts have not been able to

agree on a vessel definition.

The lower courts have developed a gaggle of conflict-

ing vessel definitions. The only point on which they seem

to agree is their unanimous assertion that: “The LHWCA

definition of ‘vessel’ is significantly more inclusive than

that under the Jones Act.” Morehead v. Atkinson-Kiewit,

J/V, 97 F.3d 603, 607 (1st Cir. 1996) (en banc)."* While the

cases that make this assertion are not construing the crew

member exclusion in § 902(3)(G), but the third party

liability provisions in § 905(b),” the notion that the word

“vessel” means one thing in the former and another in the

latter offends the “presumption that a given term is used

to mean the same thing throughout a statute.” Brown v.

Gardner, 513 U.S. 115, 118 (1994). Because most lower

courts employ the rule of construction in 1 U.S.C. §3 to

determine whether a floating structure is a “vessel” under

LHWCA § 905(b), Morehead, supra,” and since this Court

John R. Hillsman, Still Lost in the Labyrinth: The Continuing Puzzle of

Seaman Status, 15 U.S.F. Mar. L.J. 49, 54 (2003).

* See Petition for Certiorari, § I.

* See also Stewart v. Dutra Const. Co. (“Stewart II”), 343 F.3d 10,

13 (1st Cir. 2003), Pet. App. A, 5; Kathriner, 975 F.3d at 662; DiGiovanni

v. Traylor Bros. (DiGiovanni III"), 97 F.3d 624 (ist Cir. 1996);

McCarthy v. Bark Peking, 716 F.2d 130, 133-34, n. 3 (1st Cir. 1983);

Sala v. Gates Constr. Corp., 868 F.Supp. 474, 479 (E.D.N.Y. 1994);

DiGiovanni v. Traylor Bros. “DiGiovanni II”), 830 F.Supp. 106, 108-109

(D.R.I. 1993).

" That section permits LHWCA beneficiaries to seek third party

tort damages for injuries caused by “the negligence of a vessel|.!” 33

U.S.C. § 905(b); see gen. Scindia Steam Navigation Co. v. De Los

Santos, 451 U.S. 156 (1981).

* See also McCarthy, 716 F.2d at 33-34; Kathriner, 975 F.2d at 662;

DiGiovanni II, 830 F.Supp. at 108-109.

Bata eas Sais nL

has already used that same section to interpret LHWCA

§ 902(3)(G), Norton, 321 U.S. at 571 n. 4, it is difficult to

understand why that rule should- not be universally

applied.

II. 10U.S.C. §3 PROVIDES THE ONLY WORKABLE

STANDARD FOR DETERMINING SPECIAL

PURPOSE VESSEL STATUS.

A. Until recently, the admiralty had always

accommodated special purpose vessels.

As this Court recognized in Wilander, the purposes for

which vessels are employed upon the waters are “myriad.”

498 U.S. at 344. The maritime law was therefore evolving

to accommodate unconventional watercraft long before

Judge Wisdom articulated his version of the special

purpose doctrine in Robison. As the Fourth Circuit ob-

served in Saylor v. Taylor” back in 1896, “so far-reaching

are the principles which underlie the jurisdiction of the

courts of admiralty that they adapt themselves to all the

new kinds of property and new sets of operatives and new

conditions which are brought into existence in the pro-

gress of the world.” 77 F. at 479.” This has “enabled the

law to develop naturally along with the development of

unconventional vessels[.]” Offshore, 266 F.2d at 780. The

rule of construction codified in 1 U.S.C. § 3 can be seen as

a reflection of that long standing policy. See, Steven F.

” See footnote 3 supra.

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

Admiralty: The Challenges Facing the Admiralty Judges of the Lower

Federal Courts, 75 Tul. L. Rev. 1355, 1375 (2001); E. Benedict, Ameri-

can Admiralty Law § 241 (1850).

Friedell, 1 Benedict on Admiralty § 165 (7th ed. 1958 &

2003 supp.). The relatively recent efforts of some lower

courts to curtail the admiralty’s traditional accommoda-

tion of special purpose vessels represents a sea change in

the law. DiGiovanni and the floating work platform

doctrine are symptomatic of this change.

B. Attempts to exclude special purpose vessels

under the work platform doctrine have

proven prolix and unpredictable.

The floating work platform doctrine rests on three

“non-requisite criteria” and nine free-floating “factors,”

and purports to deny Jones Act vessel status to any

watercraft that is not used primarily for transportation.

Ellender, 909 F.2d at 806. The “non-requisite criteria”

inquire whether the craft at issue was (a) constructed and

used primarily as a work platform rather than for trans-

porting people or things, (b) moored or otherwise secured

at the time of the accident, and (c) capable of anything

other than a “merely incidental” transportation function.

See Bernard, supra, 741 at 831-832. The free floating

factors ask if it had (1) navigational aids, (2) a raked bow,

(3) lifeboats or other life-saving equipment, (4) bilge

pumps, (5) crew quarters, (6) Coast Guard registration/,

(7) the ability to float, (8) the ability to move, and (9) a

recent history of movement. Jd. These factors and criteria

frame the very type of “detailed,” self-executing tests that

this Court eschewed in Chandris. 520 U.S. at 369. Just

how the Fifth Circuit culled them from the countless,

seamless features that centuries of art, technology and

‘ psn eng

tradition have built into the ever-evolving concept of a

“vessel” has never been adequately explained.

As we saw earlier, the work platform doctrine is

generally thought to have been launched by Cook v. Belden

Concrete Products, Inc., supra. See Bernard, 741 F.2d at

829. Cook involved a barge constructing platform, not

unlike a building way, that was functionally identical to

the floating dry dock this Court refused to term a “vessel”

in Cope v. Valette Dry Dock Co., 119 U.S. 625 (1887). In

other words, the building way in Cook was merely “an

extension of land.” See Manuel, 135 F.3d at 350 (explain-

ing Cook). There was thus nothing about the case that

should have scuttled the Jones Act status of special pur-

pose barges and dredges generally. As Judge Clark’s

opinion in Cook was careful to observe: “Conventional

ships and barges as well as unconventional craft such as

submersible drilling barges and floating dredges which are

designed for navigation and commerce are vessels within

general maritime and Jones Act jurisdiction and retain

such status even while moored, dry-docked, or otherwise

immobilized and secured to land.” 472 F.2d at 1001 (nu-

merous citations omitted).

Quite apart from its questionable provenance, the

floating work platform doctrine is impractical and un-

wieldy. First of all, it turns on the abstract and often

subjective” distinction between a watercraft’s “primary”

* The word “vessel” apparently comes to us from the Old French

“vaissel” or “vaisseau.” John G. Rogers, Origins of Sea Terms (4th ed.,

Mystic Seaport Museum, 1985) 189.

* All too often, this involves inferring or devining the “intention of

the owner.” See, e.g., Manuel, 135 F.3d at 350.

and “incidental” purposes. But as one insightful district

court observed:

Not all floating structures which serve as

work platforms are excluded from vessel status.

Aircraft carriers, fishing boats, cable-laying

boats, for example, are work platforms in a very

real sense. Yet no one would dispute their status

as vessels. What distinguishes these vessels from

the work platforms in Davis [v. Cargill, 808 F.2d

361 (5th Cir. 1986) (following Bernard)} is that

the former move people or equipment across wa-

ter to the place where the work will be per-

formed, while the latter are affixed close to the

shoreline so that work may be brought to them.

Koernschild v. W.H. Streit, 834 F.Supp. 711, 717 (D.N.J.

1994) (holding that anchored “flexifloat” could be vessel).

Because of the doctrine’s self executing nature, however,

only a few work platform cases seem to recognize this

distinction. See, e.g., Sharp v. Johnson Bros. Co., 917 F.2d

886 (5th Cir. 1990) (where Fifth Circuit reversed a sum-

mary dismissal entered under the work platform doctrine

and held that a pile driving spud barge could be a vessel

because it transported its crane and pile driving equip-

ment to the construction site).

The multifaceted work platform test has also been

criticized as “prolix,” “arbitrary,” and “extremely flabby.”

See Robertson, The Law of Seaman Status Clarified, 23

J.Mar.&Com. 1 (1992) at 14-15; 1 Schoenbaum, supra.

That may be why the Fifth Circuit seized the opportunity

to reconsider it in Manuel v. PA.W. Drilling Well Service,

Inc., 135 F.3d at 347-51.” This reconsideration included

the realization “that a vessel can serve the dual function of

transporting cargo, equipment, or persons across naviga-

ble waters and acting as a work platform.” Jd. at 351.

Congress must have recognized the same thing when it

refused to speculate about a vessel’s primary and inciden-

tal uses and defined the term to include “every description

of water craft or other artificial contrivance used, or

capable of being used, as a means of transportation on

water.” 1 U.S.C. §3 (emphasis added). That definition is

much easier to apply, and produces far more predictable

results,” than the floating work platform doctrine.

C. Attempts to exclude special purpose water-

craft under the “actual navigation test” ar-

ticulated in DiGiovanni run afoul of

Chandris.

While the actual transit test employed by DiGiovanni

was extrapolated largely from the Fifth Circuit’s decision

* See footnote 17 supra.

* For an examination of the unpredictable results produced by the

work platform doctrine, see The Amicus Curiae Brief of the Association of

Trial Lawyers of America in Support of the Petition, § IV. That Brief cites

the notoriously irreconcilable results in Sharp, supra (where the Fifth

Circuit reversed a summary judgment and held that a pile driving spud

barge could be a vessel) and Ellender, supra (wheie the same circuit

affirmed a summary judgment and held that a pile driving spud barge

could not be a vessel). It also compares Manuel v. PA.W. Drilling & Well

Service, Inc., 135 F.3d at 351 (noting that “special purpose craft such as

submersible drilling barges, jack-up rigs, and spud barges remain

stationary while performing work, yet retain their vessel status”) to

Hurst v. Pilings & Structures, Inc., 896 F.2d at 504 (holding that a spud

barge was a work platform, and not a vessel, as a matter of law).

in Bernard, its lineage can also be traced back to Cook. As

we saw, Cook was “governed by the proposition that, ‘as a

matter of law, a floating dry dock is not a vessel when it is

moored and in use as a dry dock.’” 472 F.2d at 1002

(original emphasis) (citations omitted). The opinion none-

theless suggested that: “Although the floating construction

platform was not designed for the purpose of navigation,

the structure might be classified as a vessel subject to the

liabilities arising from an allegedly unseaworthy condi-

tion, if at the time of appellant’s injury it had actually

been engaged in navigation.” Jd. DiGiovanni turned this

suggestion into law.

DiGiovanni and the decision below hold that “if a

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

commerce, then workers assigned thereto for its shore

enterprise are to be considered seamen only when it is in

actual navigation or transit” DiGiovanni, 959 F.2d at 1123

(original emphasis); Stewart I, 230 F.3d at 467, Pet. App.

B, 22. But that holding cannot be reconciled with this

Court’s opinions in Chandris or Harbor Tug.” Under those

opinions, a plaintiff’s Jones Act status must be deter-

mined, not from a fleeting “snapshot” of his duties at the

* Nor can they be squared with Senko v. LaCrosse Dredging Corp.,

352 U.S. 370, 371 (1957) (which upheld seaman status for an Illinois

dredge hand injured in the service of “a stationary earth removing

machine”); Grubart v. Great Lakes Dredge & Dock, 513 U.S. 527, 535

(1995) (where this Court observed that no one could “seriously dispute

the conclusion of each court below” that a spud barge is a “vessel for

maritime tort purposes” even “though the barge was fastened to the

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

tion”) and Gizoni, 502 U.S. at 83-84 (where this Court held that a

shipyard worker could be a seaman even though he was injured aboard

a floating work platform that was moored to a dry dock.)

moment of injury, but “‘in the context of his entire em-

ployment’ with his current employer.” Chandris, 515 US.

at 366; Harbor Tug, 520 U.S. at 558 (1997). The idea is “to

avoid engrafting upon the statutory classification of a

‘seaman’ a judicial gloss so protean, elusive, or arbitrary as

to permit a worker to walk into and out of coverage in the

course of his regular duties.” Chandris, 515 U.S. at 363.

By permitting special purpose watercraft to carry their

crews in and out of seaman status every time they weigh

or drop an anchor, DiGiovanni and the decision below

varnished the Jones Act with just such a protean gloss.

This gloss evidently flowed from the First Circuit’s

desire to separate land-based workers from sea-based

workers by means of a restrictive vessel definition. See

DiGiovanni, 959 F.2d at 1122. Though the authors of the

work platform doctrine never stated their intentions as

clearly as the First Circuit did in DiGiovanni, they were

probably inspired ‘y the same goal. Bernard, 741 F.2d at

828-29. But that goal was mooted by this Court’s Chandris

decision.

III. CHANDRIS AND THE SUBSTANTIAL CONNEC-

TION REQUIREMENT HAVE MOOTED THE

NEED TO EXCLUDE SPECIAL PURPOSE VES-

SELS.

A. This Court restated the elements of seaman

status in Chandris.

Chandris was decided in 1995, three years after

DiGiovanni and more than a decade after Bernard. It

restated the theretofore tangled jurisprudence of seaman

status as follows:

[T]he employment-related connection to a vessel

in navigation necessary to qualify as a seaman

under the Jones Act comprises two basic ele-

ments: The worker’s duties must contribute to

the function of the vessel or the accomplishment

of its mission, and the worker must have a con-

nection to a vessel in navigation (or an identifi-

able group of vessels) that is substantial in terms

of both its duration and its nature.

515 U.S. at 376 (internal quotation marks and citation

omitted). Lower courts have broken down these two basic

elements still further:

A seaman is any worker who faces “regular

exposure to the perils of the sea.” A worker faces

regular exposure to the perils of the sea if (1) his

duties contributed to the function of a vessel or to

the accomplishment of its mission; (2) he has a

connection to a vessel (or to an identifiable group

of such vessels) that is substantial in duration;

(3) he has a connection to a vessel (or to an iden-

tifiable group of such vessels) that is substantial

in nature; and (4) the relevant vessel (or group of

vessels) is in navigation.

Lorimer v. Great Lake Dredge & Dock Co., 2002

U.S.App.LEXIS 10775, p. 3 (9th Cir. 2002) (citations

omitted) (unpublished); see also Gault v. Modern Continen-

tal / Roadway Constr. Co., 100 Cal.App.4th at 998-99. Each

of those four elements helps to define the term “seaman.”

B. Some of the elements restated in Chandris

were designed to be inclusive.

The Jones Act has always been “entitled to a liberal

construction to accomplish its beneficent purposes.”

Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783,

790 (1949). Some of the elements of seaman status were

therefore designed to be expansive. Element number (1),

for example, the requirement that a seaman’s duties

“contribute to the function” of his or her vessel, “is very

broad,” Chandris, 515 U.S. at 368, and extends Jones Act

coverage to anyone who perform ship’s work. Wilander, 498

U.S. at 354-55. Element number (4), the requirement that

the relevant vessel or group of vessels be “in navigation,”

is also very expansive and reaches any seaman who serves

aboard any operating watercraft even when “‘she is not

voyaging, but is at anchor, berthed or dockside.’” Chan-

dris, 515 U.S. at 373.” The only requirement that was

designed to be restrictive is the so-called “substantial

connection requirement” set forth in elements (2) and (3).

* The phrase “in navigation” is thus “used in its broad sense and is

not confined strictly to the actual navigating or movement of the

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

Status Revisited: A Practical Guide to Status Determination, 6

U.S.F.Mar.L.J. 547, 582-84 (1994). A vessel is “in navigation if it is

engaged in its expected duties on navigable waters.” Leonard v.

Transoceanic Sedco Forex, 189 F.Supp.2d 627, 629 (S.D. Tx. 2002). The

distinction is between a “dead ship” and an operational one. See

Chandris, 515 U.S. at 372-76. While a ship in mothballs is “out of

navigation” even when it’s being towed across the Atlantic, see West v.

United States, 361 U.S. 118, 123-24 (1959), and an unfinished ship has

not yet “entered navigation” even though it has already voyaged from

New Orleans to Tacoma, see McKinley v. All Alaskan Seafoods, Inc., 980

F.2d 567, 568 (9th Cir. 1992), an operating vessel with a crew aboard

remains “in navigation” even when it is sitting in dry dock See,

Chandris, 515 U.S. 347; Cook, 472 F.2d at 1001-02; see also David W.

Robertson, Continuing Issues in the Rights of Injured Maritime Workers

in the Wilander-Gizoni Era, 24 Rutgers L.J. 443, 464 (1993), John R.

Hillsman, supra, 15 U.S.F.Mar.L.J. at 66-70.

C. The principal restrictions on seaman status

were restated in Chandris as the substan-

tial connection requirement.

“The fundamental purpose of the substantial connec-

tion requirement is to give full effect to the remedial

scheme created by Congress and to separate the sea-based

maritime employees who are entitled to Jones Act protec-

tion from those land-based workers who have only a

transitory or sporadic connection to a vessel in navigation,

and whose employment does not regularly expose them to

the perils of the sea.” Chandris, supra, 515 U.S. at 368.

There are two elements to this requirement; the first is

temporal: “A maritime worker who spends only a small

fraction of his working time on board a vessel is funda-

mentally land based and therefore not a member of the

vessel's crew, regardless of what his duties are.” Jd. at 371.

According to one well settled rule of thumb: “A worker who

spends less than 30 percent of his time in the service of a

vessel should not qualify as a seaman under the Jones

Act.” Id. at 371.

The other element focuses on the job-related hazards

that a putative seaman faces. As this Court put it obiter

dicta in Harbor Tug, “the inquiry into the nature of the

employee’s connection must concentrate on whether the

employee’s duties take him to sea.” 520 U.S. at 555. But

that dictum should not be taken literally; “read in context”

it is just “a shorthand way of saying that the employee’s

connection to the vessel regularly exposes him ‘to the

perils of the sea.’” Endeavor Marine v. Crane Operators,

Inc., 234 “3d 287, 292 (5th Cir. 2000) (holding that a

crane operator serving aboard a barge in the Port of New

Orleans was a seaman as a matter of law). A worker does

not have to breast ocean swells to face those perils. See

Harbor Tug, 520 U.S. at 558-59 (referring to the work of a

deckhand on harbor tugs and ferry boats as “seagoing

activity” and stating that such work subjects the worker to

“the perils of the sea”). This Court has always afforded

seaman status to workers who serve on inland waters.” As

a seminal commentary by Professor David Robertson”

explained, the Jones Act was designed to protect anyone

who regularly encounters the characteristic perils of a

seaman’s work environment aboard an operating vessel,

“even though it may be within sight and hailing distance

of land.” David W. Robertson, A New Approach to Deter-

mining Seaman Status, 64 Tex.L.Rev. 79, 80 (1985) cited in

Wilander, 498 U.S. at 354.”

The lower courts should thus be using the elements of

the substantial connection requirement, and not the

definition of the term “vessel,” to separate those sea-based

” Gizoni, 502 U.S. at 83-84 (plaintiff injured on work platform in

San Diego Harbor); Senko, 352 U.S. at 371-72 (plaintiff injured on levee

in Illinois); Norton, 321 U.S. at 571 (plaintiff injured on harbor barge in

Port of Baltimore); O’Donnell, 318 U.S. at 39 (plaintiff injured on shores

of Lake Michigan). Cf. Chandris, 515 U.S. at 355 (characterizing work

on an Ohio River towboat as “life upon the sea”) (quoting Warner v.

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

* Professor Robertson is also the author of Petitioner's Brief on the

Merits herein.

* That article identifies the characteristic perils faced by seamen

as “the full range of dangers associated with deep water, wind and

weather, tide and currents, ocean predators, great distances from shore,

relative isolation, and inaccessibility of shore-side facilities for aid and

succor” as well as the full panoply of “risks attending the movement of

vessels on navigable water.” 64 Tex.L.Rev. at 80-81. See also David W.

Robertson, The Supreme Court’s Approach to Determining Seaman

Status: Discerning the Law Amid Loose Language and Catchphrases, 34

J. Mar. L. & Com. 547, 570 & n. 140 (2003).

maritime employees who are entitled to Jones Act protec-

tion from those land-based workers who have only a

transitory or sporadic connection to a vessel. Chandris,

supra, 515 U.S. at 368. The threshold vessel status inquir-

ies posed by DiGiovanni and the work platform cases are

not only unwieldy, they are unnecessary and irrelevant.

When all is said and done, myopic definitions banning

special purpose watercraft from vessel status do not

predictably advance the process by which those who do not

regularly face seaman’s perils are winnowed out of Jones

Act coverage. To the contrary, as Judge Wisdom recog-

nized, the workers who serve aboard special purpose

watercraft may be even more exposed to those peculiar

hazards than the sailors who man more traditional ships.

Offshore, 266 F.2d at 780 (observing that because offshore

oil workers “run the risk of top-heavy drilling barges

collapsing” they “are exposed to more hazards than are

blue-water sailors”).

Th.se heightened hazards are by no means limited to

offshore drill rig workers. Commercial divers, who work

almost exclusively aboard special purpose barges, and who

are strictly prohibited from diving off moving vessels

by the Coast Guard “liveboat” regulations, 46 C.F.R.

§ 197.436(c)(3), are literally and continuously immersed in

the perils of the sea. See, e.g., Wallace v. Oceaneering

International, 727 F.2d 427, 435 (5th Cir. 1984) (“It is the

inherently maritime nature of the tasks performed and

perils faced by this profession, and not the fortuity of his

tenure on the vessel from which he makes the particular

dive on which he was injured, that makes [a diver] a

seaman.”); Webster v. Seahorse Fleet, Inc., 637 F.Supp. 151,

153 (W.D.La. 1986) (commercial divers are “continuously

subject to the perils of the sea like blue-water seamen if

not more so”).” Another obvious example is furnished by

the hands who served aboard the Nantucket lightship. The

primary mission of that special purpose watercraft was

not the transportation of cargo, equipment or passengers;

it was to provide a fixed beacon for mariners. As a conse-

quence, the lightship made nothing but short, infrequent

voyages, and lay at anchor for most of its long career. But

the tenders who kept its beacon lit faced all the character-

istic perils of a seaman’s work environment — especially

the risks of collision and allision. Transatlantic liners,

beginning or ending their voyages in the coastal waters off

Massachusetts, routinely homed-in on the lightship’s

signature radio beam to guide themselves through the fog.

One morning in May, 1934, R.M.S. Olympic (Titanic’s

sister) steamed out of the murk, sliced the anchored

lightship in two and killed seven of its crew members. See

John Maxton-Graham, The Only Way to Cross (Macmillan

Co., 1972) 307. The remorseless rule in DiGiovanni would

have automatically barred the victims’ craft from vessel

status, but the UBCJA respectfully submits that the light

tenders involved in that allision were clearly seamen. So

was Petitioner Stewart when he was injured in the allision

aboard the Super Scoop.

” See gen. John R. Hillsman, Have All the Recent Twists and Turns

in the Jones Act Left Deep Sec Divers High and Dry?, 11 U.S.F.Mar.L.J.

47 (1998-99).

IV. SINCE THERE IS NOTHING ABOUT 33 U.S.C.

§ 902(3)(G) INDICATING THAT IT DOES NOT

USE THE WORD “VESSEL” TO INCLUDE

EVERY DESCRIPTION OF WATERCRAFT USED,

OR CAPABLE OF BEING USED AS A MEANS OF

TRANSPORTATION ON WATER, THE PROPER

LEGAL STANDARD FOR DETERMINING THE

STATUS OF SPECIAL PURPOSE WATERCRAFT

UNDER THAT STATUTE IS 1 U.S.C. § 3.

The statutory rules of construction must be used “[i]n

determining the meaning of any Act of Congress, unless

the context indicates otherwise[.)” 1 U.S.C. §1. Under

those rules: “The term ‘vessel’ includes every description of

watercraft or other artificial contrivance used, or capable

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

U.S.C. § 3. As Petitioner points out, at least nineteen other

federal statutes either incorporate that definition by

reference or essentially reiterate it on their face.” At risk

of belaboring the point, this Court has already used it to

construe the crew member exclusion set forth in

§ 902(3(G) of the LHWCA. Norton, 321 U.S. at 571 n. 4.

So, in effect, have the lower courts in the Third, Fourth,

Seventh and Ninth Circuits.”

The Ninth Circuit is the leader in this regard. Al-

though “[t]here is no generalized test in the Ninth Circuit

for determining whether a craft is a vessel in navigation”

see Martinez, 303 F.3d at 1136-37, & n. 2, that court only

denies vessel status to special purpose watercraft if they

" See Petitioner’s Brief on the Merits, footnote 6 and accompany-

ing text.

™ See footnote 12 supra and accompanying text.

TT in lial

“are incapable of independent movement over water, are

permanently moored to land, have no transportation

function of any kind, and have no ability to navigate.”

Kathriner v. UNISEA, Inc., 975 F.2d 657, 660 (9th Cir.

1992). These cumulative criteria may be redundant, and

stated in the negative, but they are perfectly consistent

with 1 U.S.C. § 3. They also accept “that unusual-looking

craft whose purpose is not the transportation of persons or

things can be considered vessels under the Jones Act.”

Gizoni II, 56 F.3d at 1140, n. 1 (floating work platform); see

also Estate of Wenzel v. Seaward Marine Service, Inc., 709

F.2d 1326, 1328 (9th Cir. 1983) (submerged cleaning and

maintenance platform). It has thus been suggested that:

“There is no significant difference between the statutory

definition of the term vessel [in 1 U.S.C. §3] and the

meaning attributed to it by the general maritime law as

obtaining in this country.” Steven F. Friedell, supra.

Since “[mlaritime tort law is dominated by statute,”

Miles, 498 U.S. at 36, and since the Jones Act is the

“[floremost” enactment in the field of maritime torts,

American Dredging Co. v. Miller, 510 U.S. 443 (1993), the

UBCJA respectfully submits that 1 U.S.C. § 3 supplies the

best legal standard for determining the vessel status of

special purpose watercraft.

CONCLUSION

WHEREFORE, the UBCJA respectfully joins the

Petitioner in asking the Court to complete its restatement

of the essential clements for Jones Act standing by revers-

ing the decision below and identifying 1 U.S.C. § 3 as the

“8

legal standard for determining special purpose vessel

status.

Respectfully submitted,

JOHN R. HILLSMAN

Counsel of Record

McGuINN, HILLSMAN & PALEFSKY

535 Pacific Avenue

San Francisco, California 94133

(415) 421-9292

JOHN T. DECARLO

General Counsel

DECARLO, CONNER & SELVO

533 South Fremont Avenue,

9th Floor

Los Angeles, California 90071

(213) 488-4180

Attorneys for the

United Brotherhood of Carpenters

and Joiners of America

App. 1

APPENDIX A

CHRONOLOGICAL TABLE OF

PUBLISHED DECISIONS HOLDING OR

ASSUMING THAT A DREDGE IS A VESSEL.

Supreme Court Decisions

The Virginia Ehrman, 97 U.S. 309 (1877) (allision

case — repeatedly referring to a dredge as a “ship” (id.

at 310), a “vessel at anchor” (id. at 315), and a “ves-

sel” (id. at 315, 316), and holding that a tug and the

ship it was towing were both liable for allision dam-

ages to the owners of the anchored dredge).

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

case — reversing dredge owners misdemeanor convic-

tions for violation of a federal wage and hour statute

on the ground that their employees were seamen and

vessel crew members excluded from the act, holding

that “the floating dredges were vessels” (id. at 259),

and citing Rev. Stat. (1873) §3 (now codified as 1

U.S.C. § 3).)

Standard Dredging Corp. v. Murphy, 319 U.S. 306

(1943) (unemployment insurance tax case — holding

that State of New York could collect unemployment

insurance taxes from the employer of an assistant

cook on a dredge, indicating that a dredge is a vessel

(id. at 308 & n. 3) and citing Internal Revenue Service

Cumulative Bulletin 1937-1, p. 408, which states that

“dredges used for navigation and transportation in

carrying on the work of deepening and removing ob-

structions from channels and harbors are vessels

within the meaning of . . . the Social Security Act.” )

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

(1957) (Jones Act case — affirming a state court sea-

man’s award to « handyman assigned to a dredge that

lay moored alongside a levee in [Illinois throughout

App. 2

the plaintiff’s employment, and which the Court de-

scribed as “a stationary earth removing machine” (id.

at 371), because: “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.”

Id. at 371 n. 16.)

Lower Court Decisions

5. The Alabama, 22 F. 449 (C.C.S.D.Ala. 1884) (maritime

lien case — upholding admiralty jurisdiction over a

dredge hand’s wage lien in rem for unpaid wages

against a dredge and two scows, stating a maritime

lien for unpaid wages, stating that a dredge is probably

a vessel and holding that a dredge and its scows taken

“as one craft or thing” clearly constitute a vessel.)

6. The Pioneer, 30 F. 206 (E.D.N.Y. 1886) (maritime lien

case — Relying on The Alabama (just above), awarding

damages on a supplier’s libel in rem against a dredge,

citing the statute now codified as 1 U.S.C. §3, and

holding that a dredge is a vessel because it “is an arti-

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

means of transportation on water.” Jd. at 207.)

7. The City of Alexandria, 31 F. 427 (S.D.N.Y. 1887)

(collision case — holding that a steamship, a tug, and

the dredge it was towing were all at fault for a colli-

sion that occurred partly because the dredge had not

discharged its obligations as a “vessel” under tow.)

* Three members of the Court dissented on the ground - later

disapproved by McDermott Intl, Inc. v. Wilander, 498 U.S. 337, 353

(1991) — that Jones Act seaman status requires the worker to aid in

navigation. Even the dissenters, however, “assumed that this dredge

may properly be regarded as a ‘vessel.’” 352 U.S. at 375 n. 1.

10.

11.

12.

App. 3

The Commodore, 40 F. 258 (E.D.Va. 1887) (libel in

rem — holding that an anchored dredge could be held

liable in rem, for the negligence of its raaster, just like

any other vessel.)

The Endless Chain Dredge, 40 F. 253 (E.D.Va. 1889)

(maritime lien case — holding that a dredge could be

held liable in rem for the maritime liens of suppliers

and repairers, referring to the “vessel” (id. at 254),

and stating that: “As to the question whether a

steam-dredge, which is a floating scow fitted with

steam appliances, bucket, and scoop, for deepening

channels of navigation and like purposes, is a subject

of admiralty jurisdiction, there have been repeated

decisions in the United States and Great Britain in

the affirmative.” Jd. (citations omitted).)

Seabrook v. Raft of Railroad Cross-Ties, 40 F. 596

(D.S.C. 1889) (allision case - awarding damages to

the owner of an anchored dredge that was run down

by a raft made of railroad crorsties (as a way of bring-

ing them to market), taking the vessel status of the

dredge for granted (id. at 5{'7), and holding that the

raft was a vessel because it satisfied the rule of con-

struction that is codified as 1 U.S.C. § 3. Id. at 598.)

McNamara v. The Atlantic, 53 F. 607 (D.S.C. 1893)

(maritime lien case - upholding a dredge engineer’s

maritime lien for unpaid wages, and stating that:

“Dredges and scows are subject to a maritime lien for

services rendered. The Alabama, 19 F. 544.” Id. at

608.)

The Starbuck, 61 F. 502 (E.D.Pa. 1894) (maritime lien

case — upholding dredge crew’s maritime lien for un-

paid wages, and stating that: “That a dredge and her

scows are to be treated as one concern, and are sub-

ject to the admiralty jurisdiction, has been several

13.

14.

15.

16.

17.

App. 4

times decided, and I think rightly. To discuss the sub-

ject would be a waste of time.” Jd. at 502 (citations

omitted).)

Saylor v. Taylor, 77 F. 476 (CA4 1896) (maritime lien

case — granting primacy to a dredge crew’s maritime

lien for wages on the ground that all “those who are

employed upon a vessel in any capacity, however

humble, and whose labor contributes in any degree,

however slight, to the accomplishment of the main ob-

ject in which the vessel is engaged, are clothed by the

law with the legal rights of mariners” (id. at 479), and

holding that a dredge was a vessel under the defini-

tion that is now codified as 1 U.S.C. § 3.)

The International, 83 F. 840 (E.D.Pa. 1897), aff’d, 89

F. 484 (CA3 1898) (customs case —- holding that the

Collector of Customs could not seize a foreign built

dredge under a tariff act because vessels could not be

seized under that act, and because “Dredges transport

their crews, coal, and other supplies, and are ‘capable’

of being used to transport other things” and are there-

fore “vessels” within the meaning of «.* rule of con-

struction that is now codified as 1 U.S.C. § 3 excluded

dredges (83 F. at 841).)

McRae v. Bowers Dredging Co., 86 F. 344

(C.C.D.Wash. 1898) (maritime lien case - upholding

dredge crew’s maritime lien for unpaid wages and

concluding that their dredge was a vessel.)

Steam Dredge No. 1, 87 F. 760 (D.N.J. 1898) (mari-

time lien case — holding that a dredge foreman could

assert a maritime lien for unpaid wages, and taking it

as settled law that dredges are vessels.)

McMaster v. One Dredge, 95 F. 832 (D.Ore. 1899)

(maritime lien case — holding that a maritime lien

against a newly completed dredge was invalid be-

cause the underlying claim was for construction

18.

19.

App. 5

rather than repairs, but suggesting that, once it had

entered navigation, the dredge would be a vessel “be-

cause she was constructed so as to move from place to

place upon navigable waters” Jd. at 833.)

Bowers Hydraulic Dredge Co. v. Federal Contracting

Co., 148 F. 290 (S.D.N.Y. 1906), aff’d, 153 F. 870 (CA2

1907) (contract case — upholding admiralty jurisdic-

tion over contract dispute arising from a dredge char-

ter, and rejecting the defendant’s argument that the

landfill work the dredge had been contracted to per-

form was non-maritime, hecause, “artificial distinc-

tions [arising] out of the work of a dredge being

performed partly on land and for the purpose of a

land transaction should not oust the court of jurisdic-

tion of a floating structure when its ordinary purpose

is distinctly maritime.” Jd. at 294.)

North American Dredging Co. v. Pacific Mail S.S. Co.,

185 F. 698 (CA9 1911) (liable in rem - Upholding

damage claim brought by the owner of a steamship

against the dredge whose anchor chain had fouled the

steamship’s propeller, and treating the dredge as a

vessel because: “A floating dredger capable of carrying

her own machinery and implements and working

crew, when employed as an aid to commerce in deep-

ening navigable channels and harbors, is subject to

the maritime law and to a maritime lien for a tortious

injury to another vessel «caused by negligence of those

controlling her operations.” Jd. at 702 (emphasis

added) citations omitted).)

Richmond Dredging Co. v. Standard American

Dredging Co., 208 F. 862 (CA9 1913) (liable in rem -

holding that a dredge could be libeled in rem by an

owner seeking its return from a charterer who was al-

legedly wrongfully retaining possession, and stating

that North American [just above] definitively estab-

lished that a floating dredge is a vessel. Jd. at 866.)

21.

22.

23.

24.

App. 6

The Steam Dredge A, 204 F. 262 (CA4 1913) (maritime

lien case - upholding and re-ranking the maritime

liens of various ereditors, and treating a dredge, with-

out comment, as a vessel.)

The Dredge A, 217 F. 617 (E.D.N.C. 1914) (maritime

lien — accepting the case on remand from the decision

just above, and stating “that Dredge A, after it was

completed, was a vessel, and within the admiralty ju-

risdiction.” Jd. at 623-24 (citations omitted).)

The Steam Dredge No. 6, 222 F. 576 (S.D.N.Y. 1915),

aff’d, 241 F. 69 (CA2 1917) (limitation case - accept-

ing jurisdiction over a dredge owner’s petition for re-

lief under the Vessel Owners Limitation of Liability

Act (now 46 U.S.C. app. § 183 et. seq.), which protects

onlv “the owner of any vessel,” and concluding that

the defendant’s arguments against the dredge’s vessel

status “are unsound, and do not require special atten-

tion.” Id. at 580.)

Eastern S.S. Corp. v. Great Lakes Dredge & Dock Co.,

256 F. 497 (CA1 1919) (limitation case - upholding ju-

risdiction over a “drill boat” owner’s petition for relief

under the Vessel Owners Limitation of Liability Act,

(supra), and stating that the statute that is now 1

U.S.C. §3 supported jurisdiction because: “Drillboat

No. 4 was a navigable structure having a permanent

cargo, viz., its engines, boilers, drilling machinery,

etc., which it transported from place to place for the

purpose of removing ledges in navigable water and as

an aid to commerce and navigation. It was not a float-

ing dry dock intended to be permanently moored ... ,

but was intended and used for the transportation of a

App. 7

cargo which it carried from place to place to remove

ledges.” Jd. at 501.)’

25. Zurich General Acc. & Liab. Ins. Co. v. Industrial Acc.

Comm’n, 191 Cal. 770, 218 P. 563 (1923) (workers’

compensation case — holding that a dredge hand killed

in the course of his employment was a seaman, and

therefore excluded from state workers’ compensation

benefits, because: “The dredger in this case, being en-

gaged in deepening navigable waters, was a ‘vessel’

within the meaning of title 1, section 3 of the Revised

Statutes of the United States [now codified as 1

U.S.C. § 3}.” 218 P. at 567 (citations omitted).)

26. a 70 (E.D.Pa. 1924), aff’d, 9 F.2d

396 (CA3 1925) (maritime lien case - upholding a

maritime lien for the unpaid wages of the crew of the

dredge Hurricane, and holding that “the Hurricane,

being engaged in the work of deepening channels in

navigable water, an occupation incident to navigation,

is a vessel... .” 2 F.2d at 72.)

27. Butler v. Ellis, 45 F.2d 951 (CA4 1930) (bankruptcy

case — upholding the priority of a dredge crew’s claim

for wages because: “The rule that dredges engaged in

work in furtherance of navigation are vessels within

the meaning of the maritime law, and as such are

subject to maritime liens for wages and supplies fur-

nished, is sustained by the overwhelming weight of

authority.” Jd. at 955 (citations omitted).)

* Judge Anderson dissented on the vessel-status point. He seemed

to acknowledge 1 U.S.C. § 3 as the controlling statute, but he asserted

that the drill boat was not “means of transportation” because it did

most of its work standing still. Jd. at 505.

28.

31.

32.

App. 8

Warren & Arthur Smadbeck, Inc. v. Heling Contract-

ing Corp., 50 F.2d 99 (CA2 1931) (fire damage case -

accepting admiralty jurisdiction over a dispute be-

tween the owner and the charterer of a dredge that

arose from destruction of the dredge by fire, and cit-

ing Bowers, supra, for the proposition that a floating

dredge remains a vessel (and a contract for its hire

remains maritime) whether it was doing landfill work

or channel-deepening work.)

Whalen v. Twin City Barge and Gravel Co., 280

Ill.App. 596, 1935 WL 348 (1935) (Jones Act case -

upholding an award of Jones Act damages to a dredge

hand because: “The defendant was the owner .and

possessor of a dredge boat and it was afloat on navi-

gable waters of the United States and the plaintiff

was in its employ and suffered personal injury in the

course of his employment. He was a seaman within

the meaning of the [Jones] act... .” 1935 WL 348 at

*8.)

Kibadeaux v. Standard Dredging Co., 81 F.2d 670

(CA5 1936) (Jones Act case — holding that a dredge

hand could be a seaman and citing 1 U.S.C. §3 in

support of characterizing the dredge as a vessel. Jd. at

673.)

Maryland Cas. Co. v. Lawson, 94 F.2d 190 (CA5 1938)

(LHWCA case - excluding a drowned dredge worker

from LHWCA compensation because he was a “mem-

ber of a crew” under the statutory provisions now

codified as 33 U.S.C. § 902(3G), and concluding that

his dredge was a “vessel” under 1 U.S.C. § 3.)

Beddoo v. Smoot Sand & Gravel Corp., 128 F.2d 608

(D.C.Cir. 1942) (Jones Act case - assuming that a

dredge was a vessel but holding that an injured

dredge worker was not entitled to proceed under the

Jones Act because he was not aboard primarily to aid

33.

35.

37.

App. 9

in navigation — a view later disapproved by this Court

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

(1991).)

Bolan v. Bay State Dredging & Contracting Co., 48

F.Supp. 266 (D.Mass. 1942) (Fair Labor Standards

Act case — holding that a dredge hand was “employed

as a seaman”, and therefore excluded from The Fair

Labor Standards Act by 29 U.S.C. § 213(b)\6), be-

cause: “The dredge here was a vessel and in naviga-

tion.” 48 F.Supp. at 269 (citations omitted).)

Melanson v. Bay State Dredging & Contracting Co.,

62 F.Supp. 482 (D.Mass. 1943) (Jones Act case - up-

holding an injured dredge worker’s right to proceed

under the Jones Act, and taking Supreme Court’s

decision in Ellis v. United States, supra, as conclu-

sively establishing that “floating dredges [are] ves-

sels.” Id. at 483 (quoting Ellis, 206 U.S. at 259).)

Brown v. L.A. Wells Const. Co., 143 Ohio St. 580, 56

N.E.2d 451 (1944) (Jones Act case - holding that a

dredge hand was a seaman and citing 1 U.S.C. § 3 to

support its conclusion that his dredge was a vessel. 56

N.E.2d at 454.)

Pariser v. City of New York, 146 F.2d 431 (CA2 1945)

(Jones Act case - upholding a damage award to a

dredge hand and stating that the employer’s conten-

tion that the injured worker was not a Jones Act sea-

man was “wholly without merit.” Id. at 433.)

Walling v. Bay State Dredging & Contracting Co., 149

F.2d 346 (CA1 1945) (Fair Labor Standards Act case —

disagreeing with Bolan, supra, and holding that

dredge hands are not excluded from the benefits of

the Fair Labor Standards Act, but quoting Butler v.

Ellis, supra, for the proposition that dredges were

vessels. Id. at 351.)

38.

39.

40.

41.

App. 10

Walling v. Great Lakes Dredge & Dock Co., 149 F.2d 9

(CA7 1945) (Fair Labor Standards Act case - conclud-

ing, on grounds of liberal construction, id. at 10, that

dredge hands are not excluded from the benefits of

the Fair Labor Standards Act, but acknowledging

_ that dredges are vessels, and that dredge hands are

seaman for most purposes.

Walling v. W.D. Haden Co., 153 F.2d 196 (CA5 1946)

(Fair Labor Standards Act - agreeing with the two

decisions just above, holding that dredge workers are

not excluded from the benefits of the Fair Labor

Standards Act, but acknowledging that dredges are

vessels and dredge workers seamen for most pur-

poses, including the Jones Act, because “a dredge boat

operating in navigable waters is a vessel subject to

the admiralty jurisdiction, required to show the lights

and give the signals due by vessels; and the men

working on it are in the general sense seamen enti-

tled to enforce liens against it for wages and injuries.”

Id. at 198.)

Gahagan Const. Corp. v. Armao, 165 F.2d 301 (CA1

1948) (Jones Act case - upholding a Jones Act award

to a dredge hand was injured while pumping silt and

sand from the bottom of Boston Harbor to provide

landfill material for Logan Airport on the ground

that: “It is not disputed that Dredge No. 5 is a vessel

within the meaning of the statutory definition of ves-

sel, as including ‘every description of watercraft or

other artificial contrivance used, or capable of being

used, as a means of transportation on water.’ Rev.

Stat. 1875, Sec.3, 1 U.S.C. § 3.” 165 F.2d at 305.)

In re Arundel Corp., 273 A.D. 399, 78 N.Y.S.2d 270

(1948) (unemployment compensation case - holding

that dredge hands did not fall within language ex-

cluding seamen from the state unemployment com-

pensation law, but noting that “/d)jredges have been

42.

43.

45.

App. 11

construed as ‘vessels’ and dredge men considered

‘seamen’ [so as to be entitled to] maritime liens for

wages * * * [and] recoverly] for personal injuries un-

der the Jones Act.” 78 N.Y.S.2d at 273-74 (citations

omitted).)

Early v. American Dredging Co., 101 F.Supp. 393

(E.D.Pa. 1951) (Jones Act case - awarding Jones Act

damages to a dredge hand and stating: “There can be

no doubt that the dredge is a vessel. ‘Vessel’ is defined

in 1 U.S.C. § 3 to include ‘every description of water-

craft or other artificial contrivance used, or capable of

being used, as a means of transportation on water.’ A

dredge is a vessel ... , even when it has no motive

power of its own, since it is a means of transportation

on water. Cf. Norton v. Warner Co., 321 U.S. 565

[1944).” Id. at 395.)

Covington v. Standard Dredging Corp., 61 So.2d 644

(Fla. 1952) (Jones Act case — holding that a dredge

hand hurt while engaged in landfill work was not en-

titled to proceed under the Jones Act on the theory,

later rejected in Wilander, supra, that his duties were

not in aid of navigation, but clearly treating his

dredge as a vessel.)

Wilkes v. Mississippi River Sand & Gravel Co., 202

F.2d 383 (CA6 1953) (Jones Act case - upholding the

Jones Act claims of dredge hands killed during a sand

and gravel mining operation on the Mississippi River

and repeatedly referring to their dredge as a vessel.

Id. at 388.)

McKie v. Diamond Marine Co., 204 F.2d 132 (CA5

1953) (Jones Act case - upholding the right of an in-

jured dredge hand to proceed under the Jones Act,

and repeatedly referring to his dredge as a vessel. Id.

at 134, 136.)

46.

47.

48.

49.

50.

, App. 12

Chesser v. General Dredging Co., 150 F.Supp. 592

(S.D.Fla. 1957) (maintenance and cure - awarding

maintenance and cure to a dredge hand and stating:

“It is well settled that a dredge employed in navigable

waters is a vessel under the Maritime Law ... .” Id.

at 595 (citations omitted). In dictum, the Court dis-

paraged the view that dredges engaged in landfill

work should not be regarded as falling under mari-

time law. Id.)

Brannan v. Great Lakes Dredge & Dock Co., 253

Minn. 28, 91 N.W.2d 166 (1958) (Jones Act case - re-

versing a directed verdict that a dredge undergoing

extensive repairs was not fit for service, holding that

the dredge was a vessel as a matter of law, and re-

manding the case on the ground that the issue of

whether the dredge was “in navigation” at the time of

the injury was a jury question. 91 N.W.2d at 175-76.)

Dunbar v. Henry DuBois’ Sons Co., 275 F.2d 304 (CA2

1960) (Jones Act case —- upholding an award of Jones

Act damages to the widow of a drowned dredge deck-

hand in a case where the defendant did not contest

the dredge’s vessel status or the worker’s seaman

status.)

Tyndall v. Conduit and Foundation Corp., 269 F.2d

947 (CA3 1959) (Jones Act case — affirming Jones Act

award to an injured dredge hand and stating that

if the worker in Butler v. Whiteman, 356 U.S. 271

(1958), was a seaman, then the instant worker was

bound to be one as well. Jd. at 949.)

Arundel Corp. v. Jasper, 219 Md. 519, 150 A.2d 415

(1959) (Jones Act case — affirming award of Jones Act

damages and relying on Senko v. LaCrosse Dredging

Corp., supra.

51.

53.

54.

App. 13

Lawrence v. Norfolk Dredging Co., 319 F.2d 805 (CA4

1963) (Jones Act case - upholding award of Jones Act

damages to an injured dredge hand and noting that

the defendant had conceded the dredge’s vessel status

during oral argument. Jd. at 807.)

Brinegar v. San Ore Constr. Co., 302 F.Supp. 630

(E.D.Ark. 1969) (Jones Act case — holding that an in-

jured dredge hand was a seaman as a matter of law,

and stating that “under a long train of court decisions

the [dredge] Mud Hen is ... a vessel” (id. at 638) and

that in view of 1 U.S.C. § 3, “the defendant here can

hardly claim that the dredge Mud Hen was not a ves-

sel” (id. at 639) (citations omitted).

Toland v. Atlantic Gahagan Joint Venture Dredge No.

1, 109 N.J.Super. 186, 262 A.2d 886, aff’d, 57 N.J.

205, 271 A.2d 2 (1970) (Jones Act case - upholding an

injured dredge hand’s right to proceed under the

Jones Act, and stating that “employees working

aboard dredges on navigable waters are members of a

crew of a ‘vessel’ and are entitled to a cause of action

under the Jones Act and maritime law.” 262 A.2d at

889 (citations omitted).)

Potashnick-Badgett Dredging Inc. v. Whitfield, 269

So.2d 36 (Fla.App. 1972) (Jones Act case — holding

that a dredge was a vessel and a dredge hand a sea-

man as a matter of law because: “It is clear that a

dredge may, in appropriate circumstances, be held to

fulfill the first requirement [for seaman status], that

of being a vessel. It is likewise clear that in order to

be considered to be ‘in navigation’ a vessel need not be

in motion at the time in question, as long as it is per-

forming its particular function in waters that are

navigable.” Jd. at 41 (citations omitted).)

55.

56.

57.

58.

App. 14

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

(D. Haw. 1982) (Jones Act case — holding that a dredge

engineer engaged in landfill operations was a seaman

as a matter of law, and stating that: “A review of the

authorities very quickly makes it clear that a dredge

such as the one in the instant case is a ‘vessel’ within

the meaning of the Jones Act.” Jd. at 663-64 (citations

omitted).

Stanfield v. Shellmaker, Inc., 869 F.2d 521 (CA9 1989)

(Jones Act case — holding that Jones Act did not apply

to injuries incurred on a dredge that was operating on

non-navigable water but repeatedly referring to said

dredge as a vessel.)

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

1991) (Jones Act case - upholding a Jones Act award

to a dredge hand, and assuming that a floating dredge

doing landfill work is a Jones Act vessel.)

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

1247 (CA3 1994) (Jones Act case - holding that the

Jones Act does not apply to injuries on a dredge that

is operating on non-navigable water but noting that

the defendant had conceded the dredge was a vessel.

Id. at 1251.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.