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

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’ U MAR 4 1908

.—<) perce oF Tas Guent

Supreme Court of the United"*tate

IN THE

OCTOBER TERM, 1990

WILLIAM STEPHENSON,

Petitioner,

¥

McLEAN CONTRACTING COMPANY, INCORPORATED

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Joseph F. Lentz, Jr.

LENTZ, HOOPER, JACOBS

& BLEVINS, PA.

222 St. Paul Place

Baltimore, Maryland 21202

(301) 685-8718

Attorneys for Petitioner

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 employment 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.

TAB F

Question Presented for Review ..........-..

Table of Authotities .. 0. ccc ccc es ses

Opinions Below Pr ee Te ee

PI i inn 5k ee eee Ps or

Semtute Teweived one hehe eae eens

Sensomont of the Came wns 6c hein tans

Reasons for Granting Writ ............+4..-

CN og kn nn 5 64 en debe eee

Appendix

ll

TABLE OF AUTHORITIES

Barrett v. Chevron, U,S.A., Inc,, 781 F.2d 1067 (Sth Cir.

gs ss esis vceess 6

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

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

SE ER - 10

EE Se 6

Johnson v. John F, Beasley Construction Company,

742 F.2d 1054 (7th Cir. 1984), cert. denied, 469 U.S.

Ee, Pam 6

Lawrence v. Norfolk Dredging Company, 319 F.2d 805

Decca 8

Wilander v. McDermott International, Inc., 887 F.2d 88

(Sth Cir. 1989), cert. granted, No. 89-1474

ill

Offshore Co, v. Robison, 266 F.2d 769 (Sth Cir. ty

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

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

5 Se to en ian a a ae ak Oa ee ss 6

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

Cor. 1974), cert, denied, 421 U.S. 931 (1975).

5g ae e cen ae ae S ana eee PR an ee? lara ata ee aan he 7

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

fee ear ag a eee 10

wanson v IT roth Inc.,

ti Cf. weeerernrererrer 5

Stafford v, Perini Corp,, 475 F.2d 507 (1st Cir. sai

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

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

Whittington _v. Sewer Construction Co,, 541 F.2d 427

a a cane Cee ae es 7

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

ee nS a ne re eee el ee 7

iV

OPINIONS BELOW

The decision of the Court of Appeals for the Fourth

Circuit is an unpublished opinion and is included in the

Appendix starting at A-). The decision of the United

States District Court for the District of Maryland is

unreported and is included in the Appendix starting at

A-8.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit sought to be reviewed was

entered on Devsiaiine 4, 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 anv

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

William Stephenson was employed by McLean

Contracting Company and was injured on December 23,

1985 in the course of his employment while working as

a piping welder on a crane barge. The crane barge was

being used as a work platform for the construction of a

bridge.

Suit was filed in federal court under the Jones Act

and the maritime doctrine of unseaworthiness against his

employer. Summary judgment was subsequently entered

in favor of the employer, and the case was appealed to

the Court of Appeals for the Fourth Circuit. The

appellate court affirmed the lower court's determination

that Stephenson was not primarily engaged in moving

the barge or otherwise contributing to a transportation

function of the barge, and therefore held that

Stephenson was not entitled to relief under the Jones

Act or the doctrine of unseaworthiness.

REASON 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 recently granted certiorari in

the case of Wilander v. McDermott International, Inc.,

887 F.2d 88 (Sth Cir. 1989), cert. granted, No. 89-1474.

Oral argument was conducted on December 1, 1991 in

this case, but a written opinion has not yet been

rendered. In Wilander, as in the present case, the issue

was the appropriate test to be applied in determining

seaman status under the Jones Act. Moreover, there has

been no disposition by this Court on the Writ of

Certiorari in the case of Yoash v. McLean Contracting

Co., No. 90-602, another admiralty case involving the

issue of seaman status 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 has been left to the federal courts to develop the

scope of this term. Through judicial 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).

The federal courts have taken two divergent

approached 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.

'. For an extensive discussion of cases applying

the 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 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 (3rd Cir.),

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

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

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

The First, Second, Fourth (until 1988 discussed

infra), Fifth, Sixth, and Eight 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 (1st 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),

6

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 one 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

7

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 has been that the worker

need not be involved in the transportation function of

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 entered 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

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 the

employee. The Fifth Circuit Court of Appeals reversed,

holding that as a matter of law the employee was not

aboard primarily to aid navigation. The Supreme Court,

without discussion, reversed and remanded the case to

the trial court with instruction to reinstate the jury

9

verdict in favor 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 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.

10

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 provide useful guidance to the lower courts and to

promote uniform application of the Jones Act

throughout the United States

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that a Writ of Certiorari be granted.

ntz, Hooper, Jacobs

~~ & Blevins, P.A.

222 St. Paul Pi., Sth FI.

Baltimore, Maryland 21202

(301) 685-8718

Counsel for Petitioner

11

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-2301

WILLIAM E. STEPHENSON,

Plaintiff-Appellant,

V.

MCLEAN CONTRACTING COMPANY, INC.,

Defendant-Appellee

Appeal from the United States District Court for the

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

District Judge. (CA-88-2690-JFM)

Argued: October 29, 1990 Decided: December 4, 1990

Before RUSSELL and NIEMEYER, Circuit Judges, and

CACHERIS, United States District Judge for the

Eastern District of Virginia, sitting by designation.

A-1

Affirmed by unpublished per curiam opinion.

ARGUED: Joseph Francis Lentz, Jr., LENTZ,

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

Maryland, for Appellant. Thomas G. Young,

Ill, YOUNG & BATTISTA, P.A., Baltimore, Maryland,

for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See 1.0.P. 36.5 and 36.6.

PER CURIAM:

This suit seeks recovery under the Jones Act for

injuries sustained by William Stephenson while working

as a pipe welder on and off a crane barge which was

being used as a work platform in the construction of a

bridge across the Choptank River in Maryland.

Stephenson originally brought both Jones Act and

unseaworthiness claims, and the district court sustained

the defendant's motion for summary judgment in

connection with both counts. The Court found that the

plaintiff did not qualify as a "seaman" under the Jones

A-2

Act, nor was he "doing the work of a seaman" at the

time of his injury and thus was without any claim for

unseaworthiness. The employee appealed the dismissal

of his Jones Act claim, but not the denial of the

unseaworthiness count. We affirm the district court's

grant of summary judgment dismissing plaintiffs Jones

Act claim.

I.

This is the second appeal by the plaintiff, William

Stephenson, in cases where he has sought recovery under

the Jones Act, 46 U.S.C. App. § 688 (a), and under the

maritime doctrine of unseaworthiness, for injuries

sustained by him as an employee of the defendant

McLean Contracting Company while engaged in the

construction of a bridge across the Choptank River in

Maryland. The first action dealt with injuries alleged to

have been sustained by the plaintiff on March 26, 1986.

This case was decided adversely to the Plaintiff by the

district court in a decision affirmed by us. Stephenson

A-3

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

denied, 109 S. Ct. 2110 (1989). The present action

concerned an alleged injury sustained by the plaintiff on

December 23, 1985, while working on the same

constréction project as the first in a similar capacity.

The plaintiff, at the time both his alleged injuries,

was working - and off the ANNAPOLIS, the crane

barge used as a work platform in connection with the

construction of columns which were to support the

bridge's span over the river. The barge itself was not

self-propelled but was moved from one work station to

another along the length of its anchor lines. In his first

case, we found that as an employee of the defendant,

the plaintiff performed "a variety of duties, including

welding, cutting off piling, constructing on the framework

for the bridge, riding concrete buckets and assisting in

the pouring of concrete [for the bridge]." 863 F.2d at

341. Under these facts, we held that as a matter of law

Stephenson could not claim "seaman" status because his

A-4

duties did not serve naturally and primarily as an aid

to navigation; likewise, his unseaworthiness claim was

also properly dismissed because he was not “doing the

work of a seaman." Based on this earlier holding, the

defendant here moved for summary judgment. After

finding that Stephenson "was in the same status and was

performing the same type of work which he was

performing when he suffered [the other] injury on March

26, 1986, "the district court granted the motion on both

counts of plaintiffs complaint.

II.

On the plaintiffs Jones Act claim, the district court

in Stephenson's first case "assume[d] that plaintiff was

permanently attached to the ANNAPOLIS and that the

ANNAPOLIS was in navigation." The Court found,

however, that the plaintiff "was not primarily engaged in

moving the ANNAPOLIS or otherwise contributing to a

transportation function of the barge. Nor was he

indirectly contributing to the vessel's navigation functions

A-5

by providing support to those who were performing

them. Rather, the nature and purpose of his activities

were to construct a bridge, a job not in aid of

navigation.” On those facts, the Court concluded the

plaintiff had not established that he was a "seaman"

entitled to invoke the benefits of the Jones Act.

On appeal, we affirmed the district court's granting

of summary judgment to dismiss plaintiffs Jones Act

claim, holding that on these facts

[W]e think it is clear that the duties of

Stephenson did not "serve naturally and primarily

as an aid to navigation in the broadest sense."

itti Vv, Sew l , 541 F.2d

427, 436 (4th Cir. 1976}.

We thus agree with the district court that the

plaintiff failed to present evidence that he was

a seaman within the test set forth in Whittington,

and that there was no genuine issue of material

fact to go to the jury. Such judgment is proper

where it is quite clear what the truth is.

863 F.2d at 341.

The earlier Stephenson case has been reaffirmed by

Yoash_v, McLean Contracting Co,, 907 F.2d 1481 (4th

Cir. 1990), which involved claims by two employees

A-6

engaged on the same project as Stephenson in much the

same capacity. We find Stephenson and Yoash

controlling in this case and accordingly affirm the

decision herein.

A-7

IN THE UNITED STATES DISTRICT COURT

FOR DISTRICT OF MARYLAND

WILLIAM E. STEPHENSON *

v. * Civil No. JFM-88-2690

MCLEAN CONTRACTING COMPANY

MEMORANDUM

In this action plaintiff, William E. Stephenson,

asserts Jones Act and unseaworthiness claims in

connection with an accident which occurred on

December 19, 1985. Defendant has moved for summary

judgment on the ground that at the time of the accident

plaintiff was not a seaman.

Defendant's motion will be granted. Plaintiff was in

the same status and was performing the same type of

work which he was performing when he suffered another

injury on March 26, 1986. He asserted Jones Act and

unseaworthiness claim in connection with that accident,

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

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

A-8

the Fourth Circuit, affirming this Court, held that

plaintiff was not a seaman. That ruling controls here.

The only fact to which plaintiff points to attempt to

distinguish the prior case is that he was moving an iron

pipe when the December 9, 1985 accident occurred.

He contends that this pipe was "cargo," and that he was

therefore contributing to the "transportation functions" of

the crane barge ANNAPOLIS. However, the pipe in

question was construction material to be used at the

immediate job site, and the pipe was not being

transported by the ANNAPOLIS but was to be welded

to pilings.

A separate order granting defendant's motion is

being entered herewith.

Date: November 22, 1989

J. Frederick Motz

U.S. District Court

A-9

IN THE UNITED STATES DISTRICT COURT

FOR DISTRICT OF MARYLAND

WILLIAM E. STEPHENSON *

v. * Civil No.: JFM-88-2690

MCLEAN CONTRACTING CO.

ORDER

For the reasons stated in the memorandum entered

herein, it is this 22nd day of November, 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-10