Petition for Writ of Certiorari — Yoash v. McLean Contracting Co.

we ae fs Sy

90-608 | iTein’!

~ No. 990 | ios 1 80

a SPANIOL, JR.

In THE le

Supreme Court of the Unitea States

OcTOBER TERM, 1990

PAUL YOASH anp MARK CASSON,

Petitioners,

V.

McLEAN CONTRACTING COMPANY, INCORPORATED

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTICRARI

JosEPH F. Lentz, Jr.

LeENTz, Hooper, JACOBS

& Bwevins, P.A.

222 St. Paul Place

Baltimore, Maryland 21202

(301) 685-8718

Attorneys for Petitioners

QUESTION PRESENTED FOR REVIEW

Whether a worker aboard a special-purpose vessel in

navigation (e.g., dredges, barges, and other such vessels)

whose duties and employmenit relate to the function of

said vessel and not primarily to the transportation

function of the vessel presents a jury question as to

seaman status under the Jones Act.

TABLE OF CONTENTS

Question Presented for Review i

Table of Authorities ....... ill

Opinions Below.......... 1

WN Ge Kwa eh, 1

Statute Involved ......... 2

Statement of the Case ..... 3

Reasons for Granting Writ .. 4

WE Goce ena bens 11

Appendix

li

TABLE OF AUTHORITIES

Barrett v. Chevron, U,S.A., Inc., _ F.2d 1067 (Sth Cir.

ay ee

Butler __v, Whiteman, 356 US. 271 (1958)

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

(3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976)

5

ane SRE TES

Johnson v. John F, Beasley Construction Company,

742 F.2d 1054 (7th Cir. 1984), ceit_denige, 469 USS.

ec aks ss s

Lawrence v, N >dgi 319 F.2d 805

Ts | aire 7

Norton v. Warner Co., 321 US. 565 (1944)

Simko v. C & C Marine Maintenance Co., 594 F.2d 960

(3d Cir.), cert. denied, 444 U.S. 833 (1979)

ili

Slatton v, Martin K. Eby Constr. Co,, 506 F.2d 505 (8th

Cir. 1974), cert, denied, 421 US. 931 (1975)

Perrot ee. ee Se 6

Vv 309 U.S. 251

(Sinisa ck khan 10

Swanson v. Marra Brothers, Inc.,

ee eee 4

Stafford v. Perini Coro., 475 F.2d 507 (1st Cir. 1973)

Stephenson v, McLean Contracting Company, 863 F.2d

340 (4th Cir. 1988), cert. denied, 109 S. Ct. 2110 (1989)

8

CEE 805 ka Sn ew eee 7

Wilkes v, Mississippi River Sand & Gravel Co., 202 F.2d

|. rer ty ee 6

iv

’

<i

ih Lt BONO a ALONE IPA Nal ay Nabe el Nl Og ~ “aes nl A Rattan an ine tet soba costetiadiaieeteiade eee PB a A Hit Dowrirae (m

OPINIONS BELOW

The decision of the Court of Appeals for the Fourth

Circuit is cited as Yoash v. McLean Contracting Co.,

Inc, 907 F.2d 1481 (4th Cir. 1990). The prior opinions

of the United States District Court for the District of

Maryland are unreported and are included in the

appendix starting at A-23.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit sought to be reviewed was entered

on July 13, 1990. Jurisdiction to review this judgment by

writ of certiorari is conferred on the Supreme Court

pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The statute involved is 46 U.S.C. § 688(a), commonly

known as the Jones Act:

(a) Any seaman who shall suffer personal injury in the

course of his employment may, at his election, maintain

an action for damages at law, with the right of a trial by

jury, and in such action all statutes of the United States

modifying or extending the common-law right or remedy

in cases of personal injury to railway employees shall

apply; and in case of the death of any seaman as a

result of any such personal injury the personal

representative of such seaman may maintain an action

for damages at law with the right of trial by jury, and in

such action all statutes of the United States conferring

or regulating the right of action for death in the case of

railway employees shall be applicable. Jurisdiction in

such actions shall be under the court of the district in

which the defendant employer resides or in which his

principle office is located.

STATEMENT OF THE CASE

Paul Yoash and Mark Casson were employed by

McLean Contracting Company and were injured in

separate accidents in the course of their employment

while they were working on board a floating crane barge

in navigation known as the CAPE FEAR.

Suit was filed in federal court under the Jones Act

and the maritime doctrine of unseaworthiness against

their employer. Summary judgment was subsequently

entered in favor of the employer. The cases were

appealed to the Fourth Circuit, which consolidated their

cases. The appellate court determined that the workers’

duties were not to "serve | naturally and primarily as an

aid to navigation" in that their activities did not relate to

the transportation function of the vessel and any

activities relating to the transportation function were

incidental to the pile driving work. It was held that

neither was entitled to coverage under the Jones Act.

REASONS FOR GRANTING WRIT

The issue of Jones Act coverage for workers on

special purpose vessels (such as dredges, barges, and

other similar vessels) goes beyond the litigants of this

case and directly affects thousands of workers in all

geographic areas of the United States. The Supreme

Court has not ruled upon this subject since 1958 and

should, therefore grant certiorari to resolve conflicting

standards that have developed among the lower courts

for determining coverage under the Jones Act.

By its terms, the Jones Act authorizes any "seaman"

who is injured in the course of employment to maintain

an action at law for damages against his employer. The

Jones Act, however, does not define the term "seaman,"

and it is has been left to the federal courts to develop

the scope of this term. Through judiciai interpretation,

the term "seaman" has become equivalent in meaning to

the phrase "member of the crew of a vessel." Swanson v.

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

4

The federal courts have taken two divergent

approaches in determining coverage under the Jones Act

for workers connected with the operation of special

purpose vessels.’ Specifically, the lower courts differ as

to what, if any, emphasis is to be placed on a worker's

activities to the transportation function of the vessel. The

Seventh and Third Circuits require a worker to have

performed significant duties relating to the transportation

function of the vessel. Johnson v. John F, Beasley

Construction Company, 742 F.2d 1054 (7th Cir. 1984),

cert. denied, 469 U.S. 1211 (1985); Simko v. C & C

Marine Maintenance Co., 594 F. 2d 960 (3d Cir.), cert,

denied, 444 U.S. 833 (1979); Griffith v. Wheeling

Pittsburgh Steel Corp. 521 F.2d 31 (3d Cir. 1975), cert.

denied, 423 U.S. 1054 (1976).

' For an extensive discussion of cases applying the

two different approaches see Annotation, Applicability of

Jones Act to Workers Connected with Operation of

Dredges, Drilling Platforms, Derricks, or Similar Special-

Purpose Equipment, 92 ALR Fed. 733.

5

The First, Second, Fourth (until 1988 discussed infra),

Fifth, Sixth, and Eighth Circuits, on the other hand,

interpret the aid to navigation requirement as satisfied

if an employee's duties relate to the special purpose

function of the vessel, and not just exclusively the

transportation function. See e.g., Bennett v. Perini Corp.,

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

475 F.2d 507 (ist Cir. 1973); Harney v. Moore Building

Corp., 359 F.2d 649 (2d Cir. 1966); Barrett v. Chevron,

U.S.A., Inc., 781 F.2d 1067 (Sth Cir. 1986), Offshore Co.

v. Robison, 266 F.2d 769 (Sth Cir 1959); Wilkes v.

Mississippi River Sand & Gravel Co., 202 F.2d 383 (6th

Cir. 1953); Slatton_v, Martin K. Eby Constr, Co., 506

F.2d 505 (8th Cir. 1974), cert. denied, 421 U.S. 931

(1975). The appellate court in Stafford, for example,

Stated that since on of the primary functions of the

barge was to provide a work area for the construction of

concrete forms, it was clear that the worker's duties

directly related to the performance of the barge's

mission.

The Court of Appeals for the Fourth Circuit in

Whittington v. Sewer Construction Co., 541 F.2d 427, 436

(4th Cir. 1976), established a three-prong test for

determining seaman status under the Jones Act: (1) the

worker must be more or less permanently attached to a

vessel or fleet; (2) his duties serve naturally and

primarily as an aid to navigation in the broadest sense;

and (3) the vessel is in navigation. In Whittington, the

court included the language "in the broadest sense" in

the second prong of the test. In Lawrence v. Norfolk

Dredging Company, 319 F.2d 805 (4th Cir. 1963) the

Fourth Circuit stated that "navigation in the broadest

sense” is not confined strictly to the actual navigating or

movement of the vessel but embraces duties essential for

other purposes of the vessel. Id. at 366. Thus, the

approach in the Fourth Circuit had been that the worker

need not be involved in the transportation function of

7

«

the vessel. The Fourth Circuit, however, eventually

departed from this language in Stephenson v. McLean

Contracting Company, 863 F.2d 340 (4th Cir. 1988), cert,

denied, 109 S. Ct. 2110 (1989) and in the instant case by

holding that the consideration in the Fourth Circuit is

whether the duties primarily contribute, either directly or

indirectly, to the transportation function of the vessel.

Summary judgments in both Stephenson and in this case

were ¢ntered by Judge Motz of the U.S. District Court

for Maryland.

Although the Supreme Court has never enunciated

a precise test in determining the status issue for

coverage under the Jones Act, this Court has indicated

that a worker's status must be defined in reference to

the vessel upon which he is working and that navigation

embraces duties other than the vessel's transportation

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

this Court stated that members of the crew are not

confined to those who can “hand, reef and steer." Id, at

8

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

the employee was a member of a drilling crew and was

killed while unloading drilling pipe onto the barge. At

trial, the issue of the employee's status was submitted to

the jury, which found in favor of the employee. The

Fifth Circuit Court of Appeals reversed, holding thai as

a matter of law the employee was not aboard primarily

to aid in navigation. The Supreme Court, without

discussion, reversed and remanded the case to the trial

court with instructions to reinstate the jury verdict in

favor of the employee. Similarly, in Grimes v. Raymond

Concrete Pile Co., 356 U.S. 252 (1958) this Court

determined that a worker assisting in the erection of a

ee on ete etn et Let Bare ah BE ee) sre a ee em |

radar station may be a seaman for purposes of the Jones

| Act. Lastly, this Court in Butler v. Whiteman, 356 U.S.

271 (1958) held that an employee doing odd jobs around

his employer's wharf may be a seaman for purposes of

the Jones Act.

The standard developed by the Fourth Circuit is not

consistent with the Supreme Court decisions previously

discussed. These Supreme Court cases indicate that

coverage is extended to those who work to further the

purpose or function of the vessel. The circuit courts that

emphasize the transportation function of the vessel have

focused on the Supreme Court's statement that seaman

are those aboard "primarily to aid in navigation." See

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

251 (1940). This approach, however, disregards the later

holdings of this Court.

In keeping with the remedial purpose of the Jones

Act, the Act has been and should be construed broadly.

The test announced by the Fourth Circuit and those

circuits adopting a similar approach requiring a worker

to be involved with the "transportation function" is not

consistent with opinions from this Court and other

federal circuits. Certiorari should therefore be granted to

provided useful guidance to the lower courts and to

10

promote uniform application of the Jones Act throughout

the United States.

| CONCLUSION

For the foregoing reasons, Petitioners respectfully

requests that a Writ of Certiorari be granted.

f} Lepr b ‘ Dery In

Joseph F. Lentz, Jr. =}

Lentz, Hooper, Jacobs

& Blevins, P.A.

222 St. Paul Place

Baitimore, Maryland 21202

(301) 685-8718

Counsel for Petitioners

11

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-2449

PAUL J. YOASH,

Plaintiff - Appellant,

versus

MCLEAN CONTRACTING COMPANY, INC.,

Defendant - Appellee.

No. 89-2450

MARK CASSON,

Plaintiff - Appellant,

versus

MCLEAN CONTRACTING COMPANY, INC.

Defendant - Appellee.

Appeals from the United States District Court for the

District of Maryland, at Baltimore. J. Frederick Motz,

District Judge. (CA Nos. 88-2797, CA-88-1244-JFM).

: Argued: April 4, 1990 Decided: July 13, 1990

Before ERVIN, Chief Judge, SPROUSE, Circuit Judge,

and SMITH, United States District Judge for the Eastern

District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Smith wrote the

opinion, in which Chief Judge Ervin and Judge Sprouse

joined.

ARGUED: Randolph C. Baker, LENTZ, HOOPER,

JACOBS & BLEVINS, P.A., Baltimore, Maryland, for

Appellants. Thomas G. Young, III, Baltimore, Maryland,

for Appellee. ON BRIEF: Joseph F. Lentz, Jr., LENTZ,

HOOPER, JACOBS & BLEVINS, P.A., Baltimore

Maryland, for Appellants. Andrew Martin Battista,

Baltimore, Maryland, for Appellee.

SMITH, District Judge:

Paul J. Yoash ("Yoash") and Mark Casson ("Casson")

brought separate suits in the district court of Maryland

asserting claims under the Jones Act, 46 U.S.C. § 688

A-2

(a), and under the maritime doctrine of unseaworthiness

against their former employer, McLean Contracting

Company ("McLean"). The district court granted

summary judgment in favor of McLean in both cases

because neither Yoash nor Casson qualified as a seaman

under the test for seaman status applicable in this

circuit. In this consolidated appeal, Yoash and Casson

urge this court to adopt a broader definition of seaman

status under the Jones Act. For the reasons stated

below, we affirm the decisions of the district court.

I,

At the time of their respective injuries, Yoash and

Casson were working as members of the pile driving

crew on board the floating crane barge, CAPE FEAR.

McLean was performing tests and engaged in pile driving

for the construction of bridge piers for a new bridge

over the Choptank River on the Eastern Shore of

Maryland. Yoash began working for McLean as a pile

driver on April 3, 1985. His employment history shows

A-3

that he was engaged in construction work on bridges and

industrial piers from 1972 until his injury on October 15,

1985. Yoash was first employed as a pile driver in 1976.

On board the CAPE FEAR, one of Yoash's jobs was

to run the power pack which operates the ICE Machine.

An ICE machine is a vibrating hammer used to drive or

extract pile or steel beams. Yoash performed a variety —

of other tasks on board the CAPE FEAR, which tasks

included: cleaning out concrete pilings; escorting state

inspectors who were there to insure that pilings were not

cracked; manning the desk winches when the crane barge

was being moved a short distance to drive another piling;

making repairs to the deck winches and to the jet pumps

used in the dredging operation for setting pilings; and

marking off pilings for cutting. Yoash never did any

cleaning or painting on the barge and he also never slept

overnight on the barge. He was never certified by the

United States Coast Guard for maritime work.

A-4

Since the CAPE FEAR has no motive power of its

own, except for the deck engines which operate the

anchor lines, it is pushed into place by a tugboat and

then it is anchored. Because it can move the distance

of its anchor lines, the CAPE FEAR is equipped with

long steel beams, known as spuds, which are dropped to

the river bottom to hold the barge in place during pile

driving. Each spud has a cable that is long enough to

reach the deck so that someone standing on the deck

can raise and lower the spud. The spud cable is

normally placed above the anchor line to avoid tugging

the anchor line when the spud cable is pulled. In this

case, the spud cable was improperly placed underneath

the anchor line. As Yoash was stepping over the anchor

line, which is no higher than eighteen (18) inches off the

deck, the spud line was pulled, causing the anchor line

to jerk up underneath Yoash, who tripped and injured

his leg. At the time of his injuries, Yoash was installing

falsework pilings.

Casson began working for McLean on March 4,

1985. His work experience with respect to building

docks and piers began 1984, when he learned pile

driving and worked off a crane barge. Shortly before his

employment with McLean, Casson was employed as a

carpenter doing building interior finishes, and he did

some sheet metal work on the sides of prefabricated

steel buildings which were set up on the Eastern Shore.

During the course of his employment with McLean,

Casson performed a variety of duties. Prior to his first

injury on July 20, 1985, Casson was employed on a

coches which was used to push vessels to their

destination. He was injured when he jumped from a

barge being pushed by a workboat onto the deck of the

CAPE FEAR. After recuperating from his injury,

Casson was assigned to the CAPE FEAR where he was

employed as a pile driver. Casson asserts that his duties

included more than just pile driving. McLean concedes

that approximately two to three times per week Casson

A-6

would work on a workboat. On the CAPE FEAR,

Casson maintained the jet (dredge) pumps used in pile

driving and he alleges that he performed general

maintenance duties on the vessel.

Casson was laid off from December 20, 1985, until

February 24, 1986. _Upon his return, Casson's duties

were about the same as they had been before he was

laid off, with the exception that he spent all of his time

on the CAPE FEAR or the vessels alongside of the

barge. Casson did not sleep overnight on the barge.

Casson was injured on March 25, 1986, while performing

pile driving work. He knelt down on a template to

mark a grade, and as he knelt down, his kn€e popped.

In granting summary judgment for McLean, the

district court relied solely on the case of Stephenson v.

McLean Contracting Co., 863 F.2d 340 (4th Cir. 1988),

cert. denied, US. ___,, 109 S. Ct. 2110 (1989).

It concluded that neither Yoash nor Casson had

distinguished his case from Stephenson, and therefore

the court was bound by that decision. This appeal by

Yoash and Casson followed.

II.

Summary judgment is appropriate when there is no

genuine issue of any material fact and it appears that the

moving party is entitled to a judgment as a matter of

law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477

US. 317, 322-24 (1986). The material facts of a

controversy are those identified by controlling substantive

law as essential elements of claims and defenses.

Anderson v, Liberty Lobby, 477 U.S. 242, 248 (1986). A

moving party is entitled to summary judgment if the non-

moving party has failed to make a sufficient showing on

an essential element of the case with respect to which

the non-moving party has the burden of proof. Celotex,

477 US. at 322-23. In evaluating a case, a court must

view the facts and inferences reasonably to be drawn

therefrom in the light most favorable to the non-moving

party. Ross v. Communications Satellite Corp., 759 F.2d

A-8

355, 364 (4th Cir. 1985)(citations omitted). Questions of

law are reviewed de novo on appeal. Higgins v. E.L

DuPont de Nemours & Co., 863 F.2d 1162, 1166-67 (4th

Cir. 1988).

Il.

The Jones Act, 46 U.S.C. § 688, provides in

pertinent part: "Any seaman who shall suffer personal

injury in the course of his employment may, at his

election, maintain an action for damages at law... .”

(Emphasis added.) Only a worker who qualifies as a

"seaman" may avail himself of the benefits provided by

the Act. Because the Jones Act does not define the

term "seaman" or provide criteria for eligibility, federal

courts have developed definitions on a case by case

basis. Through judicial interpretation, the term "seaman"

has become equivalent in meaning to the phrase

"member of the crew of a vessel plying in navigable

waters.” Swanson v. Marra Brothers, Inc., 328 U.S. 1, 7

(1946). The Supreme Court in South Chicago Coal &

A-9

ra

-

\

Dock Co, v. Bassett, 309 U.S. 251, 260 (1940) (citations

omitted), recognized tha: the word "crew" meant

“employees on the vessel who are naturally and primarily

on board to aid in her navigation." This court in

Whittington v, Sewer Constr. Co., 541 F. 2d 427, 436

(4th Cir. 1976), established a three-prong test for

determining seaman status under the Jones Act: (1) the

worker must be more or less permanently attached to a

vessel or fleet; (2) he must be one whose duties serve

naturally and primarily as an aid to navigation in the

broadest sense; and (3) the vessel must be in navigation.

Id. at 436.”

2, In setting forth this three-prong test in

Whittington, this court specifically noted that Congress,

by enacting the Longshoremen's and Harbor Workers’

Compensation Act (33 U.S.C. $§ 901 et seq.), intended

to limit Jones Act benefits to those persons who are

members of a crew or vessel plying in navigable waters.

541 F.2d at 436 (quoting Swanson v. Marra Brothers,

Inc,, 328 U.S. 1, 7 (1946)).

A-10

In Whittington, the plaintiff alleged that he

performed the work of a deckhand and a seaman and

that he was a member of the crew aboard a barge used

in a bridge demolition project. The barge was moored

in the river beneath a hole cut in the bridge. As the

bridge was dismantled, the scrap was lowered onto the

barge through the hole. The plaintiff sustained injuries

when he fell from the bridge onto the barge, as he was

being lowered through the hole by a cable. Applying the

three criteria set forth above, this court concluded that

Whittington did not qualify as a seaman, thereby

affirming the dismissal of plaintiffs case for lack of

admiralty jurisdiction. 541 F.2d at 436-37. °

>. In Whittington, all three alternative criteria for

establishing admiralty jurisdiction were examined, namely

(1) whether the "injuries occurred upon navigable waters

and had a maritime nexus," or (2) whether "the injuries

were caused by a vessel in navigable waters or an

appurtenance of the vessel,” or (3) whether "the person

injured was a seaman ... injured in the course of his

A-11

in Stephenson v, McLean Contracting Co,, 863 F.2d

340 (4th Cir. 1988), cert, denied, ___ U.S.___, 109

S. Ct. 2110 (1989), this court had another opportunity to

address the issue of seaman status under the Jones Act.

In Stephenson, the plaintiff was an employee of McLean

and was regularly assigned to work on the ANNAPOLIS,

a crane barge which was being used as a work platform

to construct the columns of a bridge. Stephenson was

working in a cofferdam, when he slipped and feil to the

bottom of it. The district court found that "the nature

employment.” 541 F.2d at 432 (citations omitted). The

three-prong test for Jones Act seaman status was set

forth by the court in Whittington when it examined the

third criteria for admiralty jurisdiction, together with an

examination of the distinction between the remedies

available under the Jones Act and the warranty of

seaworthingness. Id. at 433-36; see infra at 14-15. As

recognized in Whittington, the class of persons

traditionally defined as "seaman" for admiralty

jurisdictional purposes are the same as those afforded a

remedy under the Jones Act, 541 F.2d at 435; whereas

those afforded a remedy under the warranty of

seaworthiness need only to be performing the traditional

work of a seaman, after having first established a basis

for admiralty jurisdiction. Id. at 433; see infra at 14-15.

A-12

and purpose of [Stephenson's] activities were to construct

a bridge." 863 F.2d at 341. The district court then

applied the Whittington test and concluded that

Stephenson's duties did not serve naturally and primarily

as an aid to navigation because they did not contribute

directly or indirectly to the "transportation function" of

the vessel. Id. “ Consequently, the district court granted

summary judgment in favor of McLean on the Jones Act

claim. This court, agreeing that the second prong of the

Whittington test had not been satisfied and that there

were no genuine issues of material fact to go to the jury,

affirmed the judgment of the district court. Id.

*. Specifically, the district court held that

Stephenson's "duties, considered in the aggregate, did not

primarily serve as an aid to navigation and that he was

not primarily engaged in moving the ANNAPOLIS or

~

the vessel.” 863 F.2d at 341 (emphasis added). The

district court further found that Stephenson was not even

"indirectly contributing to the vessel's navigational

functions by providing support services to those who

were performing them.” Id,

A-13

In Stephenson, the only matter at issue under the

Jones Act was whether Stephenson's duties served

naturally and primarily as an aid to navigation, the

second prong of the Whittington test. Stephenson, 863

F.2d at 341. The district court in the cases at bar did

not specify any basis for its decisions other than it felt

bound .by Stephenson. Therefore, it is inferred that the

district court found that neither Yoash nor Casson could

satisfy the second prong of the Whittington test, even

viewing the facts in a light most favorable to each of

them. Accordingly, we oniy address this issue on

appellants’ Jones Act claims.

On appeal, Yoash and Casson advance two

arguments for reversing the district court's decisions.

First, they assert that this court in Stephenson improperly

injected a "transportation function" element into the

second prong of the Whittington test, and, therefore,

Stephenson should be re-examined. Second, they argue

that their cases, in any event, are factually distinguishable

A-14

ee ee |

from Stephenson. We do not agree with either of these

4

contentions.

IV.

The second prong of the Whittington test does

require that a worker's duties serve naturally and

primarily as an aid to navigation in order for a worker

to be considered a seaman. Whittington, 541 F.2d at 436.

The courts of appeals differ with respect to the emphasis

and weight given to this prong of the test for seaman

status. The Seventh and Third Circuits require a worker

to have performed significant navigational functions in

order to be considered a seaman. The Court of Appeals

for the Seventh Circuit has stated:

Because a Jones Act "seaman" is one who is a

member of a crew of a vessel, and because a

"vessel" under the Jones Act, while interpreting

liberally, has been consistently defined as a

floating structure that must have as one of its

functions the transportation of personnel or.

materials across navigable waters, we believe it is

the employee's relation to the transportation

function of the vessel, i.¢., whether the employee

contributes to the maintenance, operation, or

navigation of the vessel as a means of transport

= cae name en

A-15

on water, that is critical for Jones Act purposes.

Such an interpretation fulfills what we believe to

be the central purpose of the Act: to provide

protection for those subjected to risks associated

with the transportation function of vessels on

navigable waters.

Johnson v. John F. Beasley Constr. Co., 742 F.2d 1054,

1061-62 (7th Cir. 1984), cert. denied, 469 U.S. 1211

(1985) (citations omitted) (emphasis in original). This

view is consistent with the approach taken by the Third

Circuit. See_ Griffith v. Wheeling Pittsburg Steel Corp.,

521 F.2d 31 (3rd Cir. 1975), cert. denied, 423 U.S. 1054

(1976); Simko v. C & C Marine Maintenance Co., 594

F.2d 960 (3rd Cir.), cert. denied, 444 U.S. 833 (1979).

In contrast, the Fifth Circuit in Offshore Co. v. Robison,

266 F.2d 769 (Sth Cir, 1959), and in Barrett v, Chevron,

US.A., Inc., 781 F.2d 1067 (Sth Cir. 1986), has taken

the position that the aid to navigation requirement must

be interpreted quite broadly in light of the Supreme

Court's early Jones Act decisions. It interprets the aid

to navigation element as being satisfied if an employee

A-16

participates in any function a vessel may be designed to

serve, not just exclusively the transportation function.

Barrett, 781 F.2d at 1073.

A review of the foregoing authorities and this court's

decisions in Whittington and Stephenson lead to the

conclusion that Stephenson did not improperly narrow

the second prong of the Whittington test by injecting a

"transportation function" into the inquiry. In

Whittington, the court did include the language "in the

broadest sense" with the "aid to navigation"

consideration, citing a 1966 Second Circuit case, Harney

v. William M, Moore Building Corp., 359 F. 2d 649, 654

(2nd Cir. 1966).° No specific interpretation or refinement

*. However, the court in Harney specifically stated:

"But we need not decide whether tasks performed

aboard ship in furtherance of the vessel's special mission

ji.e., bridge building, dredging, operation, etc.], but not

of the vessel itself, are evidence of the crewman status."

359 F.2d at 655-56. Rather, the court determined that

Harney had numerous nautical tasks apart from the

vessel's special mission to thereby permit an inference of

seaman status to merit a jury's consideration. Id. at 656.

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of this language was offered in Whittington, The court in

Stephenson then refined and focused the second prong

of the test to include consideration of a direct or

indirect relation to the transportation function of the

vessel in determining whether the worker's duties

primarily served as an aid to navigation. The second

prong of the test for. determining seaman status under

the Jones Act, after Whittington and Stephenson, is

whether a worker's duties, when considered in the

aggregate, serve naturally and primarily as an aid to

navigation. In making the "aid to navigation"

determination, a consideration of whether the duties

primarily contribute, either directly or indirectly, to the

transportation function of the vessel is appropriate. We

also disagree with appellants’ second contention that

their cases are factually distinguishable from Stephenson.

First, appellants point to the fact that Stephenson was

not injured on a vessel or on a appurtenance to a vessel,

but instead was injured in a cofferdam. In the instance

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cases, however, Yoash was injured on the deck of the

CAPE FEAR, and Casson was injured on a template

beam which may constitute an appurtenance to the

vessel. © Nevertheless, the situs of a worker's injuries

has no determinative value for purposes of evaluating

seaman status under the Jones Act. See O'Donnell v.

Great Lakes Co., 318 U.S. 36, 39, 42-43 (1943).’

°. McLean argues in its brief that the template

beam is not an appurtenance of the CAPE FEAR. Brief

of Appellee at 25. Since the situs of appellants’ injuries

is not pertinent to seaman status under the Jones Act,

determination of this point is not necessary.

7. Moreover, in Whittington, the plaintiff was

injured when he fell onto a barge. 541 F.2d at 430. In

Johnson, plaintiff was injured on a floating barge. 742

F.2d at 1056, And, in Barrett, the plaintiff was injured

while transferring from a crewboat to a barge and then

suffered a second injury the next day while working on

the barge. 781 F.2d at 1069. In each cise, the

respective plaintiffs were found not to be Jones Act

seamen. The court in Barrett focused on plaintiff's

length of service on the vessel to determine whether he

performed a substantial amount of his work aboard it.

Id. at 1074-76. In Whittington and Johnson, the courts

directed their attention to the plaintiffs’ duties considered

in the aggregate. Whittington, 541 F.2d at 434-46;

Johnson, 742 F.2d at 1064.

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Next appellants claim that their duties, when

considered as a whole, establish that they served as an

aid to navigation in the broadest sense. They do not

contend that their duties primarily contributed to the

transportation function of the vessel. It is clear that

Yoash and Casson were pile drivers whose primary

purpose was to aid in the building of a bridge, not in

the navigation of the vessel.® Their duties, when

considered in the aggregate, were not to "serve naturally

and primarily as an aid to navigation." Stephenson, 863

F.2d at 341; Whittington, 541 F.2d at 436. Those

activities which did relate to the transportation function

of the CAPE FEAR were offshoots of the pile driving

work. There was no genuine issue of material fact to

be determined on these points. Therefore, the district

® Of particular interest in the grievance Casson

filed after his second injury on March 25, 1986, on the

ground that he was not being paid as a pile driver. A

pile driver's hourly wage was considerably higher than

what Casson was earning. casson won this wage claim.

Joint App. at 348, 419.

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court correctly granted summary judgment for McLean

on the Jones Act claims because neither Yoash nor

Casson qualified as a seaman under the second prong of

the Whittington test as refined in Stephenson.

V.

The warranty of seaworthiness imposes a

nondelegable duty on a vessel owner or operator to

insure that the vessel is fit for voyage. See Mahnich v.

Southern S.S. Co., 321 U.S. 96, 99 (1944) ("the admiralty

rule that the vessel and owner are liable to indemnify a

seaman for injury caused by unseaworthiness of the

vessel ... has been the settled law since this Court's

ruling to that effect in The Osceola," 189 U.S. 158, 175

(1903)). A cause of action for unseaworthiness is

separate and distinct from a Jones Act claim. Gosnell v.

Sea-Land Service, Inc,, 782 F.2d 464, 467 (4th Cir. 1986)

(citing Usner v. Luckenbach Overseas Corp., 400 U.S.

494, 498 reh'g denied, 401 U.S. 1015 (1971)). A claim

for unseaworthiness requires a maritime worker to show

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that he was doing the traditional work of a seaman at

the time he was injured. Stephenson, 863 F.2d at 341-

42; Whittington, 541 F.2d at 434. Neither Yoash nor

Casson was performing the job of a seaman at the time

of the injuries in question. They were both injured

while performing their jobs as pile drivers; Yoash was

installing falsework pilings when he was injured, and

Casson was on a template making a grade for the piles.

They have no viable claims under the warranty of

seaworthiness.

VI.

Based on the foregoing reasons, we conclude that

the district court did. not err in granting McLean's

motion for summary judgment on Yoash's and Casson's

claims under both the Jones Act and the warranty of

seaworthiness. Accordingly, the decision below

is AFFIRMED.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARK CASSON 4

v. * Civil No. JFM-88-1244

MCLEAN CONTRACTING COMPANY

MEMORANDUM

In this action plaintiff asserts claims under the

Jones Act and for unseaworthiness. At the time he was

injured plaintiff was working as a pile driver off of the

crane barge CAPE FEAR at the Choptank River Bridge

project. Defendant has moved for summary judgment.

Plaintiff has made no effort to distinguish this

case from Stephenson v. McLean Contracting Co., 863

F.2d 340 (4th Cir. 1988), cert. denied, 109 S. Ct. 2110

(1989). To the contrary, he argues that Stephenson was

"incorrectly decided." This Court is of the view that

Stephenson was correctly decided, and, in any event, it

is bound by that decision. Accordingly, defendant's

motion for summary judgment will be granted. A

separate order to that effect is being entered herewith.

Date: July 14, 1989

J. Frederick Motz

United States District Judge

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IN _THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARK CASSON .

v. * Civil No. JFM-88-1244

MCLEAN CONTRACTING COMPANY

ORDER

For the reasons stated in the memorandum

entered herein, it is this 14th day of July, 1989

ORDERED

1. Defendant's motion for summary judgment is

granted; and

2. Judgement is entered in favor of defendant

against plaintiff.

J. FREDERICK MOTZ

United States District Judge

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FOR THE DISTRICT OF MARYLAND

PAUL J. YOASH r

v. ? Civil No. JFM-88-2797

MCLEAN CONTRACTING COMPANY

MEMORANDUM

In this action plaintiff asserts claims under the

Jones Act and for unseaworthiness. At the time he was

injured plaintiff was working as a pile driver off of the

crane barge CAPE FEAR at the Choptank River Bridge

project. Defendant has moved for summary judgment.

Plaintiff has made no effort to distinguish this

case from Stephenson v. McLean Contracting Co., 863

F.2d 340 (4th Cir. 1988), cert. denied, 109 S. Ct. 2110

(1989). To the contrary, he argues that Stephenson was

"incorrectly decided." This Court is of the view that

Stephenson was correctly decided, and, in any event, it

is bound by that decision. Accordingly, defendant's

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motion for summary judgment will be granted. A

separate order to that effect is being entered herewith.

Date: July 14, 1989

J. Frederick Motz

United states District Judge

A-27

FOR THE DISTRICT OF MARYLAND

PAUL J. YOASH "

aed

v. 7 Civil No. JFM-88-2797

MCLEAN CONTRACTING COMPANY

ORDER

For the reasons stated in the memorandum

entered herein, it is this 14th day of July, 1989

ORDERED

1. Defendant's motion for summary judgment is

granted; and

2. Judgment is entered in favor of defendant

against plaintiff.

J. Frederick Motz

United States District Judge

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