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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 972

## Text

| se la A Sasa

’ 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

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