# Petition for Writ of Certiorari — Yoash v. McLean Contracting Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0987%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1117 ## Text 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 ’ . 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. A-17 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 A-18 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. A-19 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. A-20 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 A-21 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. A-22 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 A-24 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 A-25 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 A-26 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 A-28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0987%3A1. Public record. Not legal advice.