Petition for Writ of Certiorari — Dungey v. USX Corp.
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8 6 it 8 i 0 Supreme Court, U.S,
FILED
‘
no. | MAY % Wer.
JOSEPH F. SPANIOL, JR. '
IN THE SUPREME COURT OF THE TED STAGES
October Term, 1986
JOHN DUNGEY, Petitioner
Vv
UNITED STATES STEEL CORPORATION, Respondent
ON WRIT OF CERTIORARI TO THE
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
PETITION FOR WRIT OF CERTIORARI
Bruce N. Cook, Counsel of Record
Ellen A. Dauber
Cook, Shevlin & Keefe, Ltd.
12 West Lincoln Street
Belleville, IL 62220
(618) 235-3500
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1986
NO.
JOHN DUNGEY, Petitioner
Vv
UNITED STATES STEEL CORPORATION, Respondent
PETITION FOR A WRIT OF CERTIORARI TO
THE APPELLATE COURT OF ILLINOIS,
FIFTH DISTRICT
To the Honorable William Rehnquist,
the Chief Justice, and Associate Justices
of the Supreme Court of the United States.
John Dungey, the petitioner herein,
respectfully prays that a writ of
certiorari issue to review the opinion
and order of the Appellate Court of
Illinois, Fifth District, entered in
the above-styled case on September 30,
1986; petition for rehearing denied
November 6, 1986; petition for leave
to appeal denied by the Illinois Supreme
Court on February 6, 1987.
4
QUESTION PRESENTED
Whether the Illinois Court deprived
Petitioner John Dungey of his7~ rights
under the Jones Act, 46 U.S.C. §688 (1985),
by rejecting the Fifth Circuit Court
of Appeals standard for determining
"seaman" status under the Act, and adopting
and interpreting the Seventh Circuit
standard to reverse the trial court's
finding that Petitioner John Dungey was
a "seaman".
ii
TABLE OF CONTENTS
Opinions Below .....
Jurisdiction... +* *
Statute Involved...
Statement of Case. ....
Reasons for Granting Writ.
Appendix
Opinion of the Appellate
Court of Illinois, Fifth
District, of September 30,
eee ss a ee + * ee eS
Order of the Appellate
Court of Illinois, Fifth
District, of November 7,
igee + 2 & «es 6 = e 6
Order of the Illincis
Supreme Court of February 6,
A9G7 2 0 0 4 ee 4 ee 8
Order of the Circuit Court,
Twentieth Judicial Circuit,
St. Clair County, Illinois,
of May 10, 1985. .....
iii
TABLE OF AUTHORITIES
CASES
Ardoin v. J. Ray McDermott
and Co., 641 F.2d 277
(Sth Cir. 1981) 18
Barrett v. Chevron, U.S.A.,
Inc., 781 F.2d 1067,
1070 (5th Cir. 1986) 18,22¢243¢45
Berry v. American Commercial
Barge Lines, 144 Ill.
App.3d 354, 450 N.E.2d
436 (I11.App. 1983) 22,25
Butler v. Whiteman, 356 U.S.
271 (1958) 17
Dungey v. United States Steel
Corporation, 148 Ill.
App.3d 484, 499 N.E.2d
545 (I11.App. 1986) 1,13,23
Gianfala v. Texas Co., 350
U.S. 879 (1955) 15,16,19
Grimes v. Raymond Concrete
Pile Co., 356 U.S. 252
(1958) 16,20
Herb's Welding, Inc. v. Gray,
105 S.ct. 1421 (1985) 17,18
International Stevedoring Co.
v. Haverty, 272 U.S. 50
(i926) 18
Johnson v. John F. Beasley
Construction Company,
742 F.2d 1054 (7th Cir.
1984), cert. denied
469 U.S. 1231 (1984) 10,13,22,24
iv
Norton v. Warner Co., 321
U.S. 565 (1944) | 15,21
Offshore Co. v. Robison,
266 F.2d 769 (5th Cir.
1959) 8,12,13,21,22
Senko v. LaCrosse Dredging
Co., 352 U.S. 370
(1957) 18
South Chicago Coal & Dock
Co. v. Bassett, 309
U.S. 251 (1940) 14,21
Swanson v. Marra Bros., Inc.,
328 U.S. 1 (1946)
The Buena Ventura, 243 F.2d
437 CBeCeBete L916)
Tullos v. Resource Drilling,
Inc., 750 F.2d 380
(Sth Cir. 1985)
STATUTES
The Merchant Marine Act, (Jones Act)
46 U.S.C., §688
44,30
18
15
’
5,11,25
Longshoremen & Harbor Workers' Compen-
sation Act, 33 U.S.C., §§901 et seg.
(1927)
17
Nee
OPINIONS BELOW
The opinion and order of the Appellate
Court of Illinois, Fifth District, is
reported in Dungey v. United States Steel
Corporation, 148 I11.App.3d 484, 499
N.E.2d 545 (1I11.App. 1986), and is printed
in the Appendix at page A-l. The order
of the Appellate Court of Illinois, Fifth
District, denying rehearing is unreported,
and is printed in the Appendix at page
A-38. The order of the Illinois Supreme
Court denying leave to appeal is
unreported, and is printed in the Appendix
at page A-40. The opinion and _ order
of the St. Clair County Circuit Court,
Twentieth Judicial Circuit, Illinois
*
is printed in the Appendix at page A-4l.
JURISDICTION
The order of the Appellate Court
of Illinois, Fifth District (Appendix
A-l1) was entered on September 30, 1986.
A petition for rehearing was denied on
November 7, 1986. (Appendix, page A-38)
On February 6, 1987, the Illinois Supreme
Court denied leave to appeal. (Appendix,
page A-40) The jurisdiction of this
Court is invoked under 28 Pome.
§1257(c) (1985).
STATUTE INVOLVED
The Merchant Marine Act, 46 U.S.C. §688
(1986):
§688. Recovery tor injury to or death
of seaman
-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
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'~ principal office is
located.
STATEMENT OF CASE
This is an action brought pursuant
to the Merchant Marine Act, 46 U.S.C.
§688 (1985)(hereinafter "the Jones Act").
In August, 1982, petitioner John Dungey
was employed by defendant U.S. Steel
Company as an oiler on a crane barge,
known as Ringer Barge #2. The Ringer
Barge #2 consisted of two barges welded
together, (R.1001) on top of which was
mounted a crane. The barge was’ used
to transport steel from various’ vessels
onto the Jefferson Barracks bridge, which
was then under construction in the
Mississippi River between Missouri and
Illinois. (R.49-50) The barge could
move short distances through the use
of winches and anchor lines, (R.67, 128)
and the movement of spuds that ran through
the corners of the barge and were imbedded
in the river bottom. (R.65) At the time
of plaintiff's accident, the barge was
anchored in the Mississippi River. (R.651)
5
Petitioner's job as an oiler was
to oil and grease the crane portion of
the barge. (R.658) Thus, petitioner,
along with an operating engineer, was
required to remain on the barge all day
long. (R.142) Two iron workers’ also
worked on the barge at times. During
the day, however, the iron workers would
leave the barge to work on the actual
construction of the bridge. (R.142)
Petitioner and the other workers” ate
lunch on the barge, in a heated wooden
shed. (R.1002) :
On December 5, 1982, Ringer Barge
#2 broke loose from its moorings, struck
the bridge, and travelled several miles
downstream. (R.931) The crane boom was
severely damaged by its collision with
the bridge, (R.931), so the crane was
moved to shore for repairs. On December
30, 1982, the barge was’ repositioned
in the river, and the boom was transported
to the barge by tugboat. (R.937) In
6
preparation for fastening the boom to
the Ringer Barge #2, petitioner began
to clean the holes in the crane's boom
carrier. (R.82) To do this, petitioner
had to walk on the beams and girders
without a safety belt or lifeline. He
slipped and fell onto the deck of the
barge. (R.671, 673, 963) An iron worker
who arrived at the scene shortly after
the accident testified that there was
grease, oil and dirt on the girders and
beams where plaintiff slipped. (R.1046)
As a result of his fall, Petitioner
sustained serious injuries to his neck,
lower back, and right arm. (C.359)
Petitioner filed suit against
Respondent United States Steel Corporation.
His third amended complaint, filed April
22, 1985, contained two counts: a count
under the Jones Act, 46 U.S.C. §688,
alleging that defendant's negligence
caused Petitioner's injuries; and a count
under the general maritime law, in which
7
Petitioner claimed that the barge was
an ounseaworthy- vessel. (Cc. 2971 Thus,
the federal question involved in this
cause -- the right of Petitioner to recover
under the Jones Act, a federal statute
-- was first raised at the pleadings
stage in the trial court.
The conflicting standards in the
United States Courts of Appeal for
determining "seaman" status were first
discussed by the trial court in ruling
upon defendant's motion for a directed
verdict at the close of plaintiff's case.
(C. 377-386; R. 1082-1124) At that time,
Judge Donovan adopted the broader standard
first announced in Offshore Co. v. Robison,
266 F.2d 769 (5th Cir. 1959). In reaching
this decision, he made the following
statements and findings:
THE COURT: But the real thrust
of your argument here is that
he wasn't involved in the
transportation of the vehicle?
(sic)
MR. BROOM: Or the navigation
8
ef it.
THE COURT: Or the navigation
or transportation?
MR. BROOM: Correct, and 5
don't think there's any argument
about that really.
THE COURT: No, I don't think
there is.
THE COURT: Do you want me
to rule on this? — Wa.l. I
should, just so we can move
ahead. My opinion is that
if I were to follow Johnson
I think these facts are similar
to Johnson and - would result
in a directed verdict. I am
not following Johnson, I'm
following -- If this goes to
the Appellate Court, they can
make up their minds, but MI,
I think the Tullos’ decision
and the Robinson decision are
more in line with United States
Supreme Court than the Johnson
G@ecieios. {«8.1i116, 1117, 1123,
1124)
The trial court again adopted
in the amount of $650,000.00.
page A-41)
the
Robison standard in his final. order,
in which he entered judgment for Petitioner
(Appendix,
The federal question of plaintiff's
9
rights under the Jones Act, and the proper
standard for determining such rights,
was timely presented to the Appellate
Court of Illinois, Fifth District, as
it was briefed thoroughly by both parties.
The Appellate Court reversed the decision
of the trial court, applying the more
narrow standard announced in Johnson
v. John F. Beasley Construction Company,
742 F.2d 1054 (7th Cir. 1984), cert.
denied 469 U.S. 1211 (1984) to determine
that Petitioner was not a seaman (Appendix,
page A-1l).
The court denied a petition for
rehearing (Appendix, page A-38). The
Illinois Supreme Court denied a petition
for leave to appeal (Appendix, page A-40).
Petitioner has no other remedies or methods
of review in Illinois.
10
REASONS FOR GRANTING WRIT
I. PETITIONER HAS BEEN SUBSTANTIALLY
DEPRIVED OF HIS RIGHTS UNDER THE
MERCHANT MARINE ACT, 46 U.S.C. §688
(1985), BY THE ILLINOIS COURT'S
REJECTION OF THE PREVAILING FEDERAL
STANDARD FOR DETERMINING "SEAMAN"
STATUS, AND ITS APPLICATION OF THE
MINORITY STANDARD TO DETERMINE’ THAT
PETITIONER WAS NOT A SEAMAN WITHIN
THE MEANING OF THE ACT.
This Court should grant this petition
for writ of certiorari because the decision
of the Illinois court below has deprived
Petitioner of his rights under the Merchant
Marine Act, 46 U.S.C. §688 (hereinafter
"the Jones Aet”). Furthermore, the
decision of the Appellate Court conflicts
with decisions by this Court interpreting
the application of the Jones Act’ and
emphasizes conflicting standards in the
United States Courts of Appeal. This
Court should therefore issue a writ of
certiorari in this case to promote the
uniform application of the Jones-~ Act
and maritime law throughout the United
States, in compliance with this Court's
11
previous decisions.
The Jones Act provides that a "seaman"
who suffers personal injuries during
the course of his employment may maintain
an action for damages at law to recover
for his injuries. 46 U.S.C. §688. The
establishment of a person's status as
a seaman governs his right to sue not
only under the Jones Act, but under the
general maritime law as well. At issue
before the Court in this case is’ the
proper definition of "seaman", a term
which has been a frequent source of
litigation.
The federal courts have taken two
different approaches in determining seaman
status. The Fifth Circuit Court of Appeals
in Offshore Co. Vv. Robison, 266 F.2d
769 (5th Cir. 1959) announced a liberal
standard, which has been applied by a
number of courts since 1959, and which
was adopted by the trial court in this
cause. The Seventh Circuit Court of
12
Appeals, however, in Johnson v. John
F. Beasley Construction Company, 742
F.2d 1054 (7th Cir. 1984), cert. denied
469 U.S. 1211 (1984), recently adopted
a more restrictive standard, which was
applied by tie Appellate Court of Illinois
to reverse the decision of the trial
court and deny recovery to Petitioner.
The Appellate Court held that a
person is a seaman only if his duties
make a significant contribution to the
maintenance, operation, or welfare of
the transportation function of the vessel."
Dungey v. United States Steel Corporation,
148 I11.App.3d 484, 492, 499 N.E.2d 545,
552 (1986) (quoting Johnson, 742 F.2d
at 1063).
In reaching this decision, the
Appellate Court expressly rejected the
majority approach first set ferth by
the Fifth Circuit Court of Appeals in
Offshore Co. Vv. Robison, 266 F.2d 769
(Sth Cir. 1959). In Robison, the Court,
13
relying on the liberal policy of protection
underlying the Jones Act, and attempting
to reconcile United States Supreme Court
decisions on the matter, held that a
person waS a “seaman "if the capacity
in which he was employed or the duties
which he performed contributed to the
function of the vessel or to the
accomplishment of its mission." Robison,
266 F.2d at 779.
The Johnson- standard, as adopted
and applied by the Appellate Court in
this cause, is contrary to United States
Supreme Court decisions discussing "seaman"
status. A review of Supreme Court
decisions shows that this Court has adopted
a broad definition of "seaman", and has
shown a tendency to expand upon the
application of the Jones Act. In South
Chicago Coal & Dock Co. v. Bassett, 309
0.8. 251, (1940), the Court announced
the requirement that seamen be "naturally
and primarily aboard to aid in navigation".
14
This criterion, upon which the Court
in Johnson relied heavily, has been
somewhat relaxed throughout the years.
See Barrett Vv. Chevron, Uemames Inc. ,
781 F.2d 1067, 1070 (5th Cir. 1986). In
Norton v. Warner Co., 321 U.S. 565 (1944),
the Court held that a barge worker was
a seaman. In reaching this decision,
they noted that
navigation is not limited to
‘putting over the helm'. e
'{E]veryone is’ entitled
to the privileges of a seaman
who, like seamen, at all times
contributes to the labors about
the operation and welfare of
the ship when she iS upon a
voyage’.
Norton, 321 U.S. at 572, (quoting The
Buena Ventura, 243 F.2d 797, 799 (D.C.N.Y.
1916)).
This Court, in later cases, continued
to apply a broad interpretion of "seaman".
Gianfala v. Texas Co., 330 U.S. 879,
(1955), appears to be directly controlling
over the present’ case. In Gianfala,
a member of a drilling crew aboard a
15
ae
submersible drilling barge was’~ killed
while unloading drilling pipe onto the
barge. At trial, the jury found for
plaintiff after the Court denied
defendant's motion for a directed verdict
based on plaintiff's status as a seaman.
The Fifth Circuit Court of Appeals
reversed, holding that, as a matter of
law, decedent was not aboard primarily
to aid in navigation. They stated that
plaintiff was not a member of the-_ ship's
crew, but was a member of the drilling
crew, and performed only work done by
oil field workers. The Supreme Court,
without discussion, remanded the case
to the trial court for’ reinstatement
of the original judgment. Gianfala,
350 U.S. at 879.
Similarly, in Grimes Vv. Raymond
> ere
Concrete Pile Co., 356 U.S. 252, (1958),
in a short per curiam opinion, the Court
found that a pile driver assisting in
the erection of a "Texas Tower", a radar
16
ee a
station at sea, might be a seaman. In
Butler v. Whiteman, 356 U.S. 271, (1958),
another per curiam opinion, the Court
held that a man who performed odd jobs
around the defendant's wharf, barge and
tug might be a seaman even though the
tug had been out of navigation for several
months before the accident, ,and_ the
accident occurred ashore.
This Court has not actually considered
the question of seaman status since these
1958 decisions. In 1985, however, in
Herb's Welding, Inc. v. Gray, igs60 sl «Ss.
Ce. 1421 (1985), the Court considered
whether workers engaged in oil production
activities aboard stationary platforms
were covered under the Longshoremen's
and Harbor Workers' Compensation Act,
33 U.8.C., $$ 901 et seq.
(1927)(hereinafter "LHWCA"). The LHWCA
provides coverage to longshoremen-= and
harbor workers, and not to masters or
members of the crew of a vessel. Swanson
17
v. Marra Bros., Inc., 328 U.S. 1 (1946).
A seaman has been identified as one who
is a master or member of the crew of
the vessel under the LHWCA. Swanson,
328 U.S. at 1; Senko v. LaCrosse Dredging
Sess sae U.8. 370 (1957). The LHWCA
therefore narrows the scope of the Jones
Act, see International Stevedoring Co
v. Haverty, 272 U.S. 50 (1926), so that
the courts may look to cases under the
LHWCA to determine whether a person is
a seaman. See Ardoin v. J. Ray McDermott
& Co., 641 F.2d 277 (5th Cir. 1981).
In discussing the status of oilfield
workers, the Court in Herb's Welding
noted:
Floating structures have _ been
treated as vessels by the lower
courts. Workers on them, unlike
workers on fixed platforms,
enjoy the same remedies as
workers on ships. If permanently
attached to the vessel as
crewmembers, they are regarded
as seamen. Herb's Welding,
105 Pate at 1424, Bs ro
(citations omitted).
13
These cases clearly indicate that
"seaman" is to be defined to allow recovery
not only to those traditionally considered
seaman, but to all those who are
permanently assigned to vessels, and
who work to further the purpose or function
of that vessel. The standard announced
in Robison, 266 F.2d 769 (1959), was
adopted by the Court as an attempt to
reconcile these Supreme Court decisions
with the previously stated law, and clearly
reflects the Supreme Court's interpretation
of "seaman".
The Johnson~ standard, as applied
by the Appellate Court of Illinois, Fifth
District, is not consistent with’ the
decisions cited above, and deprives
Petitioner of his rights under the Jones
Act. The facts and circumstances. of
Petitioner's employment are virtually
indistinguishable from those of the injured
plaintiffs in Gianfala, 350 U.S. at 879,
19
and Grimes, 356 0.8. at 232. The
plaintiffs in Gianfala and Grimes were
both, like Petitioner, aboard vessels
designed for specific purposes. Their
duties, like Petitioner's, were directed
solely toward the special purpose of
the vessel. The plaintiffs in Gianfala
and Grimes, however, unlike Petitioner,
were held to be seamen, and thus entitled
to recovery under the Jones Act and general
maritime law. The lower court's decision
in this case, conflicting as it does
with the law established by this Court,
must not be allowed to. stand. Rather,
the Johnson standard applied by the lower
court must be rejected as an improper
deprivation of Petitioner's rights under
the Jones Act.
In emphasizing the transportation
function of the vessel in its
interpretation of "seaman", the Johnson
Court has focused on the Supreme Court's
early pronouncement that seamen are those
20
aboard "primarily to aid in navigation".
See South Chicago Coal & Dock Co. vv.
Bassett, 309 U.S. 251 (1940). They have,
however, disregarded the decisions of
the Court, and its later pronouncements,
which clearly indicate that persons who
contribute to the operation and welfare
of the vessel are entitled to seaman
status. See Norton v. Warner Co., 321
U.S. 572 (1944). The standard applied
by this Court in the past must not now
be changed to deny recovery to injured
persons.
The narrow definition of "“seaman"
adopted by the Johnson Court and the
lower court in this case also conflicts
with the overwhelming majority of cases
interpreting "seaman". The Fifth Circuit
Court of Appeals, the preeminent
jurisdiction for Jones Act cases-~ and
other maritime law, first adopted the
standard of Offshore Co. Vv. Robison,
266 F.2d 769 (1959). Since that time,
21
Robison has been cited with approval
approximately one hundred times, and
has been relied on in innumerable
unpublished opinions. See Barrett vv.
Chevron, UF Inc., 78] F.2d 1067
(5th Cif. 1986) (reaffirming Robison,
266 F.2d at 769 and expressly rejecting
Johnson, 742 F.2d at 1054). Indeed,
the Fifth District Appellate Court of
Illinois, the Court which reversed the
judgment in the instant cause, cited
Robison with approval only three years
ago. See Berry v. American Commercial
Barge Lines, 114 I11.App.3d 354, 450
N.E.2d 436, 71 111.Dec.1 (I11.App. 1983).
For more than twenty-five years, since
1959, the vast majority of Jones Act
and maritime cases have been decided
under the Robison standard. The lower
court in this case even noted that Robison
has been "considered the seminal case
in answering what has been referred to
as the "“riddle" of who is a Jones Act
22
"seaman". Dungey v. United States Steel
Corporation, 148 I11.App.3d at 489, 499
N.E.2d at 548. The Supreme Court has
signalled no disapproval of Robison.
Barrett, 781 F.2d at 1074. Neither has
Congress seen fit to amend the Jones
Act to more narrowly define "seaman",
though the Act was amended in 1982 with
regard to foreign seamen. See 48 U.S.C.,
Sec. 688(b)(1982). Robison is still
the law in the Fifth Circuit, and should
be the law throughout the United States,
as it has clearly withstood the test
of time.
In Barrett v. Chevron, U.S.A., Inc.,
781 F.2d 1067, 1070 (5th Cir. 1986),
the Fifth Circuit considered, and expressly
rejected the Johnson standard for the
reasons discussed above. Most maritime
litigation occurs in the Fifth Circuit.
Dungey, 148 I11.App.3d at 491, 499 N.E.2d
at 550. Claims brought under the Jones
Act are not litigated frequently in the
23
Seventh Circuit. Johnson, 742 F.2d at
1056. It would be both inequitable and
contrary to prior Supreme Court law for
this Court to adopt the minority Johnson
standard. This Court, however, should
adopt one of the two prevailing standards.
Unless this Court adopts a standard for
the determination of "seaman" status,
uniform a plaintiff's status aS a seaman
could change as his location on_ the
Mississippi River changes. Clearly,
Congress did not intend for the law to
be applied in such a disparate manner.
The Johnson standard must therefore be
rejected by this Court.
The Johnson Court adopted the
"transportation function" test in an
effort to create a bright line test and
abolish inconsistencies in the
interpretation of "Seaman". Johnson,
742 F.24 at i854. As the dissent in
the instant case, however, shows, this
test is still not absolute. Furthermore,
24
the portion of the Robison standard changed
by Johnson “= whether the employee
contributed to the function of the vessel
or the operation of its mission -- is,
by its nature, easily ascertained.
Barrett, 781 F.2d at 1073. Inconsistencies
exist because of different definitions
of "vessel" and "vessel in navigation".
These inconsistencies will not be abolished
by the adoption of the Johnson standard,
but may actually be increased. Application
of Johnson, may, for example, lead to
cases in which structures regularly
regarded as vessels suddenly have no
crew members or seamen at all.
Finally, this Court should adopt
the Robison standard because underlying
the Jones Act, 48 U.S.C., Sec. 688, is
the liberal policy of providing recovery
to injured seamen. In keeping with this
remedial purpose, the Act should _ be,
and has been, interpreted broadly. See
Berry v. American Commercial Barge Lines,
25
114 I11.App.3d 354, 450 N.E.2d 436, 71
E1i.Ddec.i, 7 (I11.App. 1983) (listing
cases in which personnel such as
hairdressers, and waitresses have been
found to be seamen). The Johnson Court,
and the Appellate Court in this’ cause,
now attempt to unduly and inequitably
narrow the commonly accepted = reading,
without direction from Congress or this
Court. This should not, and cannot be
allowed to happen. The Johnson standard
is an anomaly, and this Court must clearly
show that Illinois cannot reject Supreme
Court decisions, and can not allow its
injured seamen to be afforded less
protection than seamen injured in the
rest of the country.
26
@B@SS BOBS HRS SS SS SE See = =
CONCLUSION
For the foregoing reasons, this
Court should grant this petition for
writ of certiorari.
Respectfully submitted,
BOCs k—
BRUCE N. COOK
COUNSEL FOR PETITIONER.
12 West Lincoln Street
Belleville, IL 62220
Dated May 7, 1987
Bruce N. Cook, Counsel of Record
Ellen A. Dauber
Cook, Shevlin & Keefe, Ltd.
12 West Lincoln Street
Belleville, IL 62220
(618) 235-3500
27
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No. 5-85-0377
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
JOHN DUNGEY, )
)
)
Plaintiff-Appellee, )
Cross-Appellant, )
vs. )
UNITED STATES STEEL )
CORPORATION, )
Defendant-Appellant )
Appeal from the
Circuit Court of
St. Clair County.
No. 83-L-128
Honorable
James K. Donovan,
Cross-Appellee. ) Judge Presiding.
|
|
|
MR. JUSTICE KARNS delivered the opinion
of the court:
Plaintiff, John Dungey, brought suit
against defendant United States Steel
Corporation, under the Merchant Marine
Act of 1920 (46 U.S.C. §688) commonly
A-1
known as the Jones Act, and under the
general maritime law of the United States,
in the Circuit Court of St. Clair County
to recover damages for personal injuries
received in the course of his employment.
After a trial before the court sitting
without a jury, judgment was”7~ entered
in favor of plaintiff. Both parties
appeal.
Plaintiff was a member of Operating
Engineers Local No. 520; he was employed
by defendant as an oiler on ae crane,
mounted on two barges, welded together,
which served as a floating work platform
Situated in the Mississippi River at
the site of the construction of the
Jefferson Barracks Bridge across the
river in south St. Clair County, Illinois,
connecting the states of Missouri and
Illinois. Plaintiff's only duties were
in connection with the oiling and greasing
of the crane which was used to- set
structural steel in the construction
an2Z
of the bridge.
The crane was designed to move in
a 360 degree circle and was’ referred
to aS a ringer crane. It was mounted
on girders and beams welded to the deck
of the barges. The platform on _ which
the crane rested had no motive power,
and when moved for any considerable
distance, the use of a tugboat ' was
required. Limited movement of the barge
was possible by the use of winches which
secured the anchor lines which positioned
the barge in the river, and the movement
of spuds that ran through the corners
of the barge and were imbedded in the
river bottom. Structural steel and
supplies were transported to the platform
by tugboat. Plaintiff had no duties
associated with movement of the _ barge
and was transported as a passenger morning
and evening to and from the crane platform
by tugboat. At noontime, the crew,
consisting of the crane operator, some
A-3
ironworkers, a mechanic and plaintiff
remained on the platform and took their
meals there. Plaintiff sometimes cooked
for the men on facilities available in
the heated work shed located on the deck.
On December ae 1982, prior to
plaintiff's accident, the platform broke
loose from its moorings, struck the bridge,
damaging the crane, and was’~ propelled
by the river current several miles
downstream. The crane boom was severely
damaged, and the barge was moved to shore
by tugboat so that the crane could be
repaired and rebuilt. Plaintiff was
then assigned, along with members’ of
other crafts, to a "bull gang" to repair
the crane ashore.
After the crane was repaired, the
barge platform was repositioned in the
river and the boom was transported to
the barge by tugboat. On December 30,
1982, the ironworker foreman assigned
plaintiff the task of cleaning out the
A-4
holes in the boom through which steel
pins are inserted to connect the sections
of the boom together and to the crane.
Plaintiff used sandpaper, a brush _ and
a grease gun to perform this task. While
moving from one side of the boom to the
other, plaintiff testified that he slipped
on frost, fell from the girders’ which
Supported the ringer crane on the barge
and onto the deck of the barge. A witness
testified that grease and oil had
accumulated on the girders and beams.
After a trial before the _ court,
the court having denied defendant's jury
demand because of late payment of the
$50 jury fee required to be paid under
section 27.1(4) of the Act relating to
Clerks of Courts (Ill. Rev. Stat. 1983,
ch. 25, par. 27.1(4)), which was tendered
after the cause was placed on the non-jury
calendar, the court entered judgment
for plaintiff for $650,000 and denied
plaintiff's request for pre judgment
A~5
interest, a ruling from which plaintiff
has cross-appealed.
While numerous errors are relied
upon by defendant for outright reversal
or the award of a new trial, we conclude
that the determination of plaintiff's
status as a seaman is dispositive of
this appeal; accordingly, we need not
address the other errors relied on for
reversal or the issue raised in plaintiff's
cross-appeal.
In determining plaintiff's status
as a seaman, we are, of course, governed
by the federal law developed in the cases
decided under the Jones Act and the general
maritime law. (Alton & Southern Ry.
Co. v. Alton Transp. Co. (5th Dist. 1980),
79 I11.App.3d 591, 399 N.E.2d 173.) The
establishment of plaintiff's status as
a seaman governs his right to sue both
under the Jones Act and under the general
maritime law for unseaworthiness.
The determination of seaman status
A-6
has been the subject of extensive
litigation and is further complicated
by the divergence of opinion as to the
proper test to be employed in answering
this question, developed in the case
law in the courts of the United States
Courts of Appeal where most' maritime
litigation occurs. Furthermore, the
Supreme Court of the United States has
last spoken to this subject in two per
curiam opinions in 1958 (Butler v. Whiteman
(1958), 356 U.S. 271, 78 S.Ct. 734, 2
L.Ed.2d 754; Grimes v. Raymond Concrete
Pile Co. (1958), 356 U.S. 252, 78 S.Ct.
687, 2 4L.Ed.2a 737), and the prior
decisions of the Supreme Court, many
per curiam, are not particularly helpful
in resolving this question. These
decisions are reviewed at length in
Offshore Co. v. Robison (5th Cir. 1959),
266 F.2d 769, considered the seminal
case in answering what has been referred
to as the "“riddle" of who is a Jones
A-7
Act "seaman."
The Jones Act gives to seamen the
right to sue their employers for injuries
occasioned by negligence. The Act does
not define who is a _ seaman. A seaman
has been identified as one who is a "master
or member of the crew of a vessel” as
those terms are used in the Longshoremen's
and Harbor Workers' Compensation Act
(hereinafter "LHWCA" ; 33 U.8.C. §901
et seg. (1927)), as that act only provides
coverage to longshoremen and harbor workers
and not to masters or members of the
crew of a vessel. (Swanson v. Marra
Bros. Inc. (1946), 328 U.S. 1, 66 S.Ct.
869, 90 L.Ed. 1045; Senko v. LaCrosse
Dredging Co. (1957), 352 U.S. 370, 77
S.ct. 415, 1 L.Ed.2d 404.) In other
words, the LHWCA narrows the _ original
scope of the Jones Act (See International
Stevedoring Co. v. Haverty (1926), 272
U.S. $0, 47 8.Ct. 19, 71 LeBA. 157) SO
that a seaman is one whe is a member
A-8
of the crew of a vessel, the terms being
synonymous, and we may look to_ cases
decided under the LHWCA to _ determine
who is a seaman. (Ardoin v. J. Ray
McDermott & Co. (5th Cir. 1981), 641
F.2d 277.) As noted in Ardoin, the phrase
member of the crew is only slightly more
illuminating than the word seaman.
In the early case South Chicago
Coal & Dock Co. v. Bassett (1940), 309
U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732,
the Supreme Court addressed the question
whether plaintiff, a laborer who drowned,
was a “member of the crew"and, therefore,
not covered under the _ LHWCA. Decedent
worked as a deckhand aboard a lighter
directing the flow of coal from the lighter
to the vessel being fueled. He threw
lines but performed no navigational duties;
he occasionally did some cleaning of
the boat; he held no maritime articles
and slept and boarded off the boat. The
court decided that decedent's status
A-9
as a "member of the crew" was a factual
question to be determined in the first
instance by the administrative procedure
provided under the _ LHWCA. The finding
of the deputy commissioner, if there
was evidence to support it, was conclusive
and final. Quoting from an early case,
the court said, "'[w]Jlhen the "crew" of
a vessel is’ referred to, those »ersons
are naturally and primarily meant who
are on board her aiding in her navigation,
without reference to the arrangement
under which they are on board.'" (Emphasis
added. ) (309 U.S. at 2592, 60 &.Ct. at
548, 84 L.Ed. at .) The court reasoned
that while decedent might be classified
as a "seaman," he was distinct from a
member of a "crew" and was, therefore,
excluded from coverage under the Jones
Act. The court concluded that there
was evidence to support the administrative
finding awarding compensation under the
LHWCA.
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Kees 3 The same test has been adopted
by this court in Berry vv. American
Commercial Barge Lines (5th Dist. 1983),
114 I11.App.3d 354, 450 N.E.2d 436, where
we reviewed a number of cases dealing
with the status of the injured plaintiff
as a seaman.
The cases emphasize that only where
the evidence is clear and admits of but
one conclusion can the question of seaman
status be decided as a matter of law
as the Act is to be given a liberal
construction. "Except in cases where
the underlying facts are undisputed,
and the record reveals no evidence from
which reasonable persons might draw
conflicting inferences about these facts,
the riddle of seaman's status iS_ one
for the jury." Ardoin v. J. Ray McDermott
S Co. (Sth Cir. 1961), 641i F.20 2773
280.
,
The case followed by the trial court
in reaching its decision that plaintiff
A-iz
was a seaman and member of the crew of
the work barge is Offshore Co. v. Robison
(Sth Cir. 1959), 266 F.2d 769, cited
with approval in Tullos _v. Resource
Drilling, Inc. (5th Cir. 1985), 750 F.2d
380, also relied on as authority by the
trial court. The plaintiff, Robison,
was employed as a "roughneck" in the
offshore petroleum industry in the Gulf
of Mexico. He was injured while working
as a driller's helper on a drilling rig
mounted on a drilling platform resting
on the bottom of the Gulf of Mexico on
retractable legs. The rig was moved
as a barge to its location by tugs. While
moving aS a barge, employees such as
Robison would customarily chip rust,
paint and handle lines. When injured,
Robison was working with drilling casing.
He sued under the Jones Act and the general
maritime law.
The test for seaman status developed
in Robison, and repeated in numerous
A-13
Jones Act cases, often involving injuries
to workmen in the offshore’ petroleum
industry, states that there is a
submissible case for the trier of fact's
consideration:
"(1) if there is evidence that the
injured workman was assigned
permanently to a vessel (including
special purpose structures not usually
employed as a means of transport
by water but designed to float on
water) or performed a_— substantial
part of his work on the _ vessel;
and (2) if the capacity in which
he was employed or the duties which
he performed contributed to the
function of the vessel or to _ the
accomplishment of its mission, or
to the operation or welfare of the
vessel in terms of its maintenance
during its movement or during
anchorage for its future trips."
(266 F.2d at 779.)
A-14
It will be observed that the Robison
test for determining seaman status ignores
the language "primarily in aid of
navigation," the test advanced in. South
Chicago Coal & Dock Co. v. Bassett, which
the Fifth Circuit had earlier adopted
in McKie v. Diamond Marine Co. (5th Cir.
1953), 204 F.2d 132.
In Robison, recently reaffirmed
in Barrett v. Chevron, U.S.A., Inc. (5th
Cir. 1986), 781 F.2d 1067, the court
discarded the “aid to navigation" test
as largely meaningless. The court stated
that after examining numerous cases,
"recovery is allowed when by no. stretch
of the imagination can it be said that
the claimant had anything to do with
navigation and is a member of the ship's
company only in the sense that his duties
have a connection with the mission or
the function of the floatable structure
where he was’ injured." (266 F.2d at
780.) The result of the adoption of
A-15
the Robison test is that in almost any
setting the determination of seaman status
under the Jones Act is a factual question
for the jury to decide. (See Pickle
Vv. International Oilfield Divers, Inc.
(Sth Cir. 1986), 791 F.2e 1237, involving
an underwater diver welding a brace on
a fixed diving platform.) Robison may
be distinguished from the instant case
in that Robison's duties aboard the
drilling platform, capable of floating
as a vessel, unlike Dungey's duties here,
"contributed to her mission, to the
operating function she was designed to
perform as a sea-going drilling platform.
Some of Robison's duties had a ‘significant
navigational function, ' like Senko's
[Senko v. LaCrosse Dredging Corp. (1957),
352 U.S. 370, V7 §&.Ct. 415, 1 L.Ed.2d
404] in that they related to the
seaworthiness, maintenance (welfare)
of Offshore No. 55. Some of his duties
* * %* are traditional duties of seamen
A-16
in that they related to the movement
of the vessel as a means of transport
on water." 266 F.2d at 779.
In Senko v. LaCrosse Dredging Corp.
(1957), 352 U.S. 370, 77 &.Ct. 415, 1
L.Ed.2d 404, cited in Robison, petitioner
was a handyman employed on a dredge
building a by-pass canal on the Mississippi
River. He carried supplies and performed
general maintenance on the floating dredge.
He was injured ashore while in the work
shed, where he had gone to store signal
lanterns, when a coal stove in the shed
exploded. The petitioner's chores included
cleaning the deck of the dredge, splicing
rope and stowing supplies, taking soundings
and cleaning navigational lights when
the dredge was in transit. The court
concluded that the jury could find that
petitioner was responsible for the
seaworthiness of the dredge and was
employed on the dredge as a member of
the crew. The fact that he was injured
A-17
on land was not material. He had a
Significant navigational function when
the dredge was put in transit." 352
U.S. at 374, 77 §.Ct. at 418, 1 L.Ed.2d
The Fifth Circuit's test of seaman
status would appear to be an outgrowth
of the Supreme Court's per curiam reversal
of an earlier case where it was determined
as a question of law on almost identical
facts that a member of a drilling crew
on an offshore oil rig was not a seaman.
Gianfala v. Texas Company (1955), 350
U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775,
rev'ing Texas Company v. Gianfala (5th
Cig. 1955), 222 F.2d 382.
The four cases cited by the Supreme
Court in itsS per curiam reversal shed
little light on the question of the proper
test to determine status’ as a seaman
and are noted as follows:
South Chicago Coal & Dock Co. Vv.
Bassett (1940), 309 U.S. 251, 60 S.Ct.
A-18
544, 84 L.Ed. 732, held only that the
deputy commissioner's administrative
determination that a deckhand aboard
a lighter, assisting in the flow of coal
to the vessel being fueled, was not a
member of -the crew and accordingly was
entitled to compensation under the LHWCA
was supported by the evidence; Summerlin
v. Massman Const. Co. (4th Cir. 1952),
199 F.2d 715, held without analysis or
detailed discussion of the facts that
a jury question is presented as to the
seaman status of a worker employed as
a fireman on a floating derrick used
in the construction of a bridge on the
York River in Virginia; Wilkes Vv.
Mississippi Sand & Gravel Co. (6th Cir.
1953), 202 F.2d 383, held that it was
a jury question whether laborers employed
and living aboard a gravel dredge in
the Mississippi River aided in the
navigation of the vessel and were therefore
seamen when they contributed to-~ the
A-19
operation and welfare of the vessel;
Gahagan Const. Corp. v. Armao (lst Cir.
1948), 165 F.2d 301, held that a jury
could find that an employee on a dredge
in Boston Harbor was a seaman, a seaman
being one who does any work aboard a
ship in navigation, and also a member
of the crew as he performed chores in
aid of navigation of the vessel.
Professors Gilmore and Black observe:
"[w]ho else might be excluded (or
included) was, as a matter of initial
construction, impossible to say.
After a half-century of litigation
the answer to the riddle is not
apparent. The Supreme Court has
alternated between giving the term
"seaman' an exceedingly broad
construction and giving it a much
narrower one. Consequently defendants
have been encouraged to argue, in
all but the most obvious’7 cases,
that plaintiff is not a Jones Act
A-20
seaman and that the action must
be dismissed. Thus there has always
been, there continues to be, and
presumably there will go on _ being
a substantial volume of depressing
litigation of this type." G. Gilmore
& C. Black, The Law of Admiralty,
§6-21 at 328 (2d ed. 1975).
Even in the Fifth Circuit, however,
where most of the litigation involving
seaman status has occurred, there has
been considerable inconsistency in the
cases. [Ce x Barrios Vv. Louisiana
Construction Material Co. (5th Cir. 1972),
465 F.2d 1157 with Cook v. Belden Concrete
Products, Inc. (5th Cir. 1973), 472 F.2d
999.) Professors Gilmore and Black in
their excellent treatise on admiralty
law conclude that "[e]ven in a Circuit
as steeped in admiralty law as the Fifth,
the plaintiff's fate, in cases of this
sort, seems to depend on the luck of
the judicial draw." G. Gilmore and C.
A-21
a ek Oe ee ee
+ wameneeh . weewe > ee — epee eee ee ——
Black, The Law of Admiralty, §6-20 at
334 (2d Ed. 1975).
Recently, the Seventh Circuit decided
Johnson v. John F. Beasley Construction
Co. (7th Cir. 1984), 742 F.2d 1054, cert.
denied U.S. » £05 §.Ct. i480,
84 L.Ed.2d 328. On operative facts
indistinguishable from those present
here, the court decided that Johnson,
an ironworker, was not a seaman. Johnson
was employed by defendant, a structural
steel contractor, to work in the removal
of a "swing" span of a railroad bridge
over the Illinois River and replace it
with a "lift" span. Plaintiff was a
foreman in charge of the crew performing
the work. Plaintiff was transported
daily by tug to a barge used as a work
platform in the river channel which
Supported a large crane used ine the
construction project in the removal and
erection of structural steel. The barge
had no motive power, but unlike the barge
A-22
employed here, it was moved by tug
downstream where construction material
would be loaded aboard it from _ supply
trucks on shore by the use of the crane,
and thus clearly was a “vessel in
navigation." On such occasions, plaintiff
would assist in the loading and would
handle lines.
While plaintiff was supervising
the construction of a control house on
the bridge, the tugboat collided with
a beam on the barge which turned and
came in contact with Johnson's leg, causing
a severe injury requiring the amputation
of the leg. As here, plaintiff received
Illinois Workers' Compensation benefits
and subsequently brought suit in the
district court to recover under the Jones
Act.
In reviewing the development of
the law under the Jones Act, the court
first noted that the case law had not
deve loped a uniform or consistent
A-23
interpretation of the term "seaman."
court stated that while +t found
the opinion in Robison
"a well-reasoned attempt to extract
relevant principles from then-existing
case law, *x** we think that its
restatement of the third prong of
the traditional test (that the
employee's duties must be primarily
in aid of navigation), *** is too
broad in that it accords insufficient
weight to the relationship between
the employee and the transportation
function of the vessel. More
specifically, we think the - second
part of the Robison test strays
from important Jones Act principles
when it speaks of the employee's
duties as having to relate only
to the ‘function of the vessel or
the accomplishment of its mission'
without further qualifying 'function'
and 'mission' in terms of the vessel."
A-24
742 F.2d at 1061.
The court attributed the Robison's
court's failure to consider the employee's
duties in relation to the transportation
function of the vessel to the court's
attempt to determine the reasoning of
the Supreme Court in several earlier
per curiam opinions. Johnson interpreted
Senko as holding that the employee must
have significant navigational functions
before he can be considered a Jones Act
seaman and a member of the crew of a
vessel. Because a vessel must function
in the transportation of personnel or
materials across navigable waters (Powers
v. Bethlehem Steel Corp. (lst Cir. 1973),
477 F.2d 643, 647), the employee's duties
must relate to the transportation function
of the vessel.
The Johnson court reasoned that
the interpretation of "seaman" in Robison
was intended to give reasonable protection
to workers in the offshore oil industry,
A-25
but "while such categories of workers
previously may have fallen through the
cracks of existing compensation schemes,
they are now protected through the Outer
Continental Shelf Lands Act, 43 U.S.C.
§1333(b), which incorporates the coverage
of the LHWCA." 742 F.2d at 1062.
Notwithstanding that it may be
appropriate to find seaman status when
the employee's duties fall into what
the court characterized as "gray areas,"
the court stated that it distorts the
purpose of the Jones Act "when persons
who are obviously not seamen recover
damages at the ship owner's expense. If
the Jones Act is to retain any limitation
on its coverage, we believe the employee's
duties with respect to the transportation
function of the vessel should define
them." 742 F.2d at 1062.
The court concluded that there is
an evidentiary basis for submitting to
the jury the question of the injured
A-26
party's status as a seaman if:
"(1) the person injured had a more
or less permanent connection with
a vessel in navigation, and (2) the
person injured made aé_ significant
contribution to the maintenance,
operation, or welfare of the
transportation function of the
vessel." 742 F.2d at 1063.
In applying this test to the facts
of the case, the court held that there
was no evidentiary basis for submitting
the case to the jury because the only
evidence suggesting that plaintiff was
a seaman or member of the crew was the
statement that he may have handled mooring
lines; this the court found to be
insignificant with respect to the
transportation function of the barge.
In the case before us, in ruling
on defendant's motion for directed verdict,
the trial court acknowledged that if
it were to follow Johnson, no evidence
A-27
suggested that Dungey had anything to
do with the transportation function of
the work barge or the tug that transported
the workmen and moved the barge in position
in the river and that defendant would
be entitled to a directed verdict. The
court made it clear, however, that it
was following Robison and the test adopted
in the Fifth Circuit and that a. fact
question was presented as to plaintiff's
status aS a seaman because there was
evidence that his duties contributed
to the function of the vessel or to the
accomplishment of its mission as a work
barge or floating work platform.
In Barrett v. Chevron, U.S.A., Inc.
(Sth Cir. 1986), 781 F.2d 1067, the court
reconsidered, en banc, the test for seaman
status developed twenty-six years earlier
in Robison. Barrett was injured while
working as a member of a welding crew
in repairing the caisson of a producing
offshore oil well. Because of the small
A-28
2 aa—ooOOoOoO7V———eeeeeeeO
size of the platform, the work was largely
performed from a barge positioned alongside
the caisson where plaintiff spent most
of his time in fabricating new pipe
sections to be welded onto the caisson.
The workers were transported daily to
the worksite by crew boat from living
quarters provided on a fixed platform.
Barrett injured his back while being
transported from the crew boat to the
work barge in a personnel basket by the
use of a crane on the barge. He continued
to work, however, and claimed his injury
waS aggravated the following day while
lifting a heavy piece of pipe on the
work barge. Plaintiff sought damages
under the Jones Act and general maritime
law for negligence and unseaworthiness.
In Barrett, the court once again
reviewed the development of the law,
often expressed as the "riddle" of seaman
status, observing that the last attention
given this question by the Supreme Court
A-29
was in two brief per curiam opinions
in 1958. (Butler v. Whiteman - (1958),
356 U.S. 271, 78 S.Ct. WS, 2 L.Ed.2d
754; Grimes v. Raymond Concrete Pile
Co. (1958), 356 U.S. 252, 78 S.Ct. 687,
2 L.Ed.2d 737.) The court affirmed its
adherence to the test formulated in
Robison, rejecting the test advanced
by the Seventh Circuit in Johnson,
observing that Robison had stood the
test of time, had been cited more than
95 times and was considered the leading
case on the subject. In applying another
part of the Robison test, however, the
court found the evidence insufficient
to support a finding that Barrett was
a member of the crew of the work barge.
In the context of his entire employment,
he performed 70% to 80% of his work on
fixed platforms, not barges, hence was
not a member of the crew of ae vessel
or fleet of vessels.
In a special concurrence, four judges
A-30
opted to adopt the rule of Johnson vv.
John F. Beasley Construction Co. approving
of the reasoning of the Seventh Circuit
as expressed in its opinion and stating,
"fa] bright-line rule is called _ for,
one that nudges coverage back toward
the blue-water sailors for whom the Jones
Act was meant." 781 F.2d at 1067.
We assume for the purpose of this
disposition that a fact question is here
presented by the evidence as to Dungey's
status as a seaman and member of the
crew of the work barge on which he was
injured should we adopt the Robison test.
We choose, however, to adopt the test
promulgated by the Seventh Circuit in
Johnson as more logical and reasonable
and one capable of rational and consistent
application. It simply seems’ illogical
that an essentially land-based worker,
an oiler, a member of the operating
engineers union, whose only duties were
the oiling of the crane situated on the
A-31
barge and subsequent repair of the boom
of the crane after it was damaged, could
be considered a seaman and member of
the crew of a vessel. He performed no
work in connection with the nent mn
function of the barge, which we _ here
assume to be a vessel in errr ye
We are further persuaded to adopt
the Johnson test for seaman status’ for
another reason. The United States district
courts sitting in Illinois would be obliged
to follow Johnson, there being no contrary
holding of the United States Supreme
Court which would be binding on all
inferior federal courts. (Powell Vv.
United States (7th Cir. 1964), 338 F.2d
556; Shakman v. Democratic Organization
of Cook County (N.D. ah 1972), 356
F.Supp. 1241, 1246.) It would be anomalous
that different rules for determining
seaman status would turn on whether a
cause was filed in the federal district
courts in [Illinois or in the Illinois
A~-32
circuit courts, there being concurrent
jurisdiction in actions arising under
the Jones Act. Engel v. Davenport (1926),
271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813;
46 U.S.C. §688; 45 U.S.C. §§51,56.
We choose to adopt the reasoning
of Johnson v. John F. Beasley Construction
Co. (7th Cir. 1984), 742 F.2d 1054.
Accordingly, the judgment of the Circuit
Court of St. Clair County is reversed.
REVERSED.
KASSERMAN, P.J., concurs.
Filed September 30, 1986
No. 5-85-0377
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
JOHN DUNGEY, ) Appeal from the
) Circuit Court of
) St. Clair County.
Plaintiff-Appellee, )
Cross-Appellant, )
vs. ) No. 83-L-128
UNITED STATES STEEL )
CORPORATION, ) Honorable
Defendant-Appellant) James K. Donovan,
Cross-Appellee. ) Judge Presiding.
WELCH, J., dissenting:
I approve of the reasoning of the
majority with the single exception that
I do not find Johnson v. John F. Beasley
Constr. Co. (1984), 742 F.2d 1054, requires
the conclusion plaintiff was not a
"seaman."
34
>
I
In Johnson, the plaintiff's employer
was building the new lift section and
control house of a railroad bridge over
the Illinois River. The plaintiff was
the foreman of the crew constructing
the lift section and control house over
water from a barge. The barge had no
motive power of its own and no steering,
and was pushed to its position by a
tugboat. Plaintiff and his crew assisted
with holding and preparing lines to shore.
In Johnson, the plaintiff was hardly
more than a passenger on the barge. He
did almost nothing for the barge itself.
His crew used it as a platform from which
to construct a bridge. In the case at
bar, plaintiff's duties concerned the
operation of the crane which was affixed
to and part of the vessel on which he
was stationed. He was on the vessel
not because it was a convenient place
to stand, but because the functions of
the vessel required that someone of his
A-35
. 4
J
— NS ee RIE Ser
qualifications be there to ensure that
the vessel continued to serve its
functions.
I believe that this plaintiff does
come within the "transportation function"
test in Johnson. The instant vessel
was two barges welded together with a
mounted crane. The plaintiff's job was
repair, reassembly and maintenance of
the crane portion of the vessel. If
plaintiff's work were not done, there
would be no reason for the vessel to
go anywhere as the unit would be
inoperative and of no _ use. Plaintiff's
duties made him an essential member of
the crew of the vessel, and he was entitled
to the same protection as any seaman.
I conclude plaintiff in the case
at bar “made a significant contribution
to the maintenance, operation, or welfare
of the transportation function of the
vessel" (742 F.2d 1054, 1063), and I
therefore dissent.
ee aS a.
Filed September 30, 1986
A-37
No. 5-85-0377
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
JOHN DUNGEY, ) Appeal from the
) Circuit Court of
) St. Clair Gounty.
Plaintiff-Appellee, )
Cross-Appellant, )
vs. ) Ro. B3-L<-128
UNITED STATES STEEL )
CORPORATION, ) Honorable
Defendant-Appellant) James K. Donovan,
Cross-Appellee. ) Judge Presiding.
ORDER
This cause having been considered
on plaintiff-appellee, cross-appellant's
petition for rehearing and the court
being fully advised in the premises:
ae IS THEREFORE ORDERED that
plaintiff-appellee, cross-appellant's
A-38
petition for rehearing shall be, and
the same hereby is, DENIED.
FILED November 7, 1986
ILLINOIS SUPREME COURT
SUPREME COURT BUILDING
SPRINGFIELD, IL 62706
February 6, 1987
No. 64515 - John Dungey, petitioner,
Vv. United States Steel Corporation,
respondent. Leave to appeal, Appellate
Court, Fifth District.
The Supreme Court today DENIED the
petition for leave to appeal in the above
entitled cause.
The mandate of this Court will issue
to the Appellate Court on March 2, 1987.
IN THE CIRCUIT COUR
TWENTIETH JUDICIAL CIRCUIT
ST. CLAIR COUNTY, ILLINOIS
JOHN DUNGEY, )
Plaintiff, )
vs. ) No. 83 L 128
UNITED STATES STEEL )
CORPORATION, )
Defendant.
ORDER
This cause coming before the Court;
the Court being fully advised in the
premises and having heard testimony from
witnesses in open court; after considering
the-oral and written arguments of Counsel,
and the written legal memorandums’ and
Suggested instructions on the law; the
court makes the following findings:
Plaintiff brings this lawsuit in
two Counts: Count I alleging a violation
of the Jones Act and Count II alleging
that the vessel in question was not
seaworthy.
Plaintiff is a member of International
Union of Operating Engineers Local No.
520 and was employed by the defendant,
United States Steel Corporation. The
plaintiff was assigned as an oiler to
work on Ringer Barge Number 2. The vessel
consisted of two barges welded together
on which a Ringer crane was mounted on
girders and beams which were welded to
the deck of the barges. The Ringer crane
was used by defendant in the Mississippi
River to aid in construction of a span
of the new Jefferson Barracks’ Bridge.
As a general rule, the barge was moved
in and out of the channel daily. Movement
generally was accomplished by use of
a tugboat, although the Ringer’ barge
was capable of maneuvering on the river,
both up and down stream and laterally
by use of a combination of winches and
anchors and did so on a limited number
of occasions.
When in the channel or on other
A-42
parts of the river, stationary position
of the Ringer barge was accomplished
by the use of anchors and spud beams.
The spud beams were set by the Ringer
crane.
The regular crew of the Ringer crane
was five iron workers, one operator,
a master mechanic, an oiler (plaintiff)
and the foreman, Gene Jensen. The workers
were brought to the Ringer barge _ each
day by a tugboat from the shore and
remained on the barge for the entire
day. The barge had a tool shed, a crew
shack and a portable restroom. The crew
ate their noon meals on the barge.
The plaintiff's duties as an oiler
related entirely to the maintenance and
servicing of the ringer crane. He would
assist in the movement of the barge only
to the extent that the crane placed and
moved the spuds. Plaintiff was permanently
assigned to the barge and his only work
place was the barge, which was primarily
A-43
es
in the navigable stream. The primary
function of the barge was to operate
as a crane. The plaintiff's primary
function was to maintain the Ringer crane.
On December “5, 1982, Ringer Barge
Number 2 broke loose from her _ anchors
and wrecked some 4 miles downstream.
Plaintiff and the rest of her crew were
on the boat during this accident. The
accident damaged the crane's boom and
on December 30, 1982, the plaintiff was
instructed by Gene Jensen to clean out
the pin holes on the boom carriage in
preparation for the boom to be reattached
to the Ringer crane. The plaintiff mounted
the supporting girders and stood on them
to clean one pin hole. When moving from
one pin hole to the next, plaintiff walked
the girders and beams and hit a slick
spot that he thought was frost, and fell
to the steel deck.
The evidence indicated that plaintiff
was not issued a safety belt and lifeline.
A-44
There was no direct evidence of frost,
the plaintiff described his foot sliding
as sliding like it was on ice. Mike
Mort, an iron worker, testified that
he did not see any frost but that he
did not look in the area in which plaintiff
fell. He further testified that the
area in which plaintiff fell was usually
covered with grease and oil.
The Court will first consider whether
the plaintiff is entitled to recovery
under the Jones Act as described in Count
I of his Complaint.
The Mississippi River meets the
navigability test of admiralty jurisdiction
due to the public navigable character
of the water.
The Court has determined that the
evidence substantiates a finding that
the barge that the plaintiff was working
on was a "vessel" within the meaning
of the Maritime laws. Federal Jury
Practice and Instructions, 3rd Edition
A-45
by Devitt and Blackmar states in Section
96.04 vessel - defined.
"The primary meaning of the term
vessel is that of any water craft or
other contrivance used or capable of
being used, as a means of transportation
on water.
The term vessel also -includes,
however, various special purpose craft
whcih do not operate as_ vehicles’ for
transportation but rather as movable,
floating basis for stationary operation
such as drilling or dredging. If a
structure is buoyant and capable of being
floated from one location to another,
it may be found to be a vessel even though
it may have remained in one place for
a long time, and even though there are
no plans to move it in the foreseeable
future."
The Court also feels that the barge
in this case qualifies as a vessel under
the test outlined in Johnson v. John
A-46
rs Beasley Construction Company, 742
F.2d 1054 (7th Circuit, 1984) at page
1063 and 1064.
In determining whether the plaintiff
in this case was a seaman, the Court
has relied on the case of Tullos v.
Resource Drilling, Inc., 750 F.26 380
(Sth Circuit, 1985) at page 384. The
Court in Tullos adopts the reasoning
of Offshore Company vv. Robinson, 266
F.2d 769 (5th Circuit, 1959) where the
following test was’ adopted: 1) That
the worker waS permanently assigned to
or did a substantial portion of his work
on a vessel, including special purpose
structures not usually employed as a
means of transport by water but designed
to float on water; and 2) The work he
performed contributed to- the function
of the vessel, or to the accomplishment
of it's mission, or to the operation
or welfare of the vessel in terms of
it's maintenance.
Saal
The court finds:
l. That the plaintiff was permanently
assigned to the vessel, Ringer Barge
Number 2;
2a. The work plaintiff performed
contributed to the function of Ringer
Barge Number 2;
2b. The work performed by plaintiff
contributed to the accomplishment of
the mission of Ringer Barge Number 2
which was the construction of a bridge;
2c. The work plaintiff performed
contributed to the operation or welfare
of the vessel in terms of the maintenance
to the Ringer crane, which was mounted
on Ringer Barge Number 2.
In addressing the issue of defendant's
negligence, the Court has closely
considered the testimony and exhibits
offered and received, and has reviewed
with great interest plaintiff's exhibit
number 10, American Bridge Safety Manual.
Defendant's safety manual on page 1
A-48
|
|
}
)
}
|
;
indicates that the following safety guides
have been developed to prevent accidents.
The foreword goes on to state "it is
the foreman who has the greatest burden
of responsibility in putting the rules
into practice. Men should expect that
he will give them the benefit of his
knowledge and insist on strict compliance."
The Court has reviewed the entire manual
with regards first to the aspect to safety
guide lines when working above_ ground.
The following safety rules, although
all are not directly on point with the
facts of this case, assist the Court
in determining a standard of care in
this case.
Section or When working
a loft, all men must tie off
their safety lines, except
while getting from one _ point
to another. This includes
connectors when it is necessary
for them to use any tool other
than one spud wrench to _ make
a connection and when working
off scaffolds at large points.
If special provisions are
required to provide a safe
place for tying off, it should
A-49
be planned in advance of the
operation, with the approval
of the construction
superintendent. Do not fasten
safety line over sharp edges.
Wherever possible, tie up your
safety line before getting
on any type of scaffolding.
Safety lines should be tied
as short as possible and to
a point above’ the level of
the workmen. Safety lines,
whenever possible, should be
tied to the structure and not
to floating lines. See general
rules and "safety rules and
requirements for scaffolds".
Section 7.1: The members’ of
the detail gang are in no way
accepted from following the
rules of others working aloft.
This includes keeping tied
off whenever possible.
Section > Pe F Install fixed
wire rope in the hopper or
other structure so that men
can tie safety lines to it.
Section 12.8: Wherever possible,
workmen are required to tie
off their safety lines’ before
getting onto scaffolds and
remain tied off until they
are off the scaffold and have
secured footing.
Section re Ys Always tie
up your safety line on- such
operations. If no members
are convenient for attaching
the safety line, string a piece
of cable of proper size between
two adjacent members and tie
the safety line to the _ same.
Allow sufficient sag. See
table on page 8 of Safety Rules
and Requirements for Scaffold.
Although each of these sections
do not apply directly to the- job plaintiff
was working on, it emphasizes the
importance placed by defendant on safety
belts and tying off when working aloft.
Defendant in this case failed to
supply the plaintiff with the appropriate
safety equipment; failed to instruct
the plaintiff on the performance of his
duties; and failed to monitor or supervise
the performance of plaintiff's duties
in accordance with reasonable safety
standards.
The Court finds that defendant's
negligence was a proximate cause of
plaintiff's injury. Borras v. Sea_Land
Service, Inc. 586 F.2d 881 (lst Circuit
1978), Litherland v. Petroleum Offshore
Construction Services, IRC. 546 F.2d
129 (5th Circuit 1977).
A-51
Regarding the issue of contributory
negligence, a seaman's duty to protect
himself is not ordinary care, but slight
care. Brooks v. Great Lake Dredge-Dock
Company, 754 F.2d 536 (1984). Based
on the facts in this case, the Court
does not feel that the above’ standard
of care has been breached, and that any
verdict awarded to the plaintiff should
not be reduced as a result of his conduct.
Before reaching the issue of damages,
the Court will next address Count MII
of plaintiff's Complaint which deals
with seaworthiness. . The Court has
previously found that the Mississippi
is a navigable waterway; that the barge
that plaintiff was working on was a vessel
for purposes of the Maritime laws; and
that the piasintiff falls within the
definition of seaman as_~ provided for
in the Maritime laws.
Debit and Blackmar provides in Section
96.13 liability of ship owner for
A-52
to
unseaworthiness;
Under Maritime law, every ship
owner or operator owes to every
member of the crew employed
aboard the vessel the
non-delegable duty to keep
and maintain the ship, and
all decks and passageways,
appliances, gear, tools, and
equipment of the vessel, in
a seaworthy condition at all
times. To be in a_ seaworthy
condition means to be in a
condition reasonably suitable
and fit to be used, for the
purpose or use for which provided
or intended. An unseaworthy
condition may result from the
lack of adequate crew, a lack
of adequate manpower to perform
a particular task on the ship,
or an improper use of otherwise
seaworthy equipment. Liability
for an unseaworthy condition
does not in any way depend
upon negligence or fault or
blame. That is to say, the
ship owner or operator is liable
for all injuries and consequent
damages proximately caused
by an unseaworthy condition
existing at any time, even
though the owner or _ operator
may have exercised due care
under the circumstances and
may have had no- notice or
knowledge of the unseaworthy
condition which proximately
caused the injury or damage."
The Court again makes reference
plaintiff's Exhibit Number
A-53
defendant's safety manual. The following
sections appear pertinent to the condition
of the vessel:
Section 2.1% Keep working
areas in clean and orderly
condition with necessary
equipment and material neatly
arranged. Use boit baskets
or other containers’ provided.
Do not allow drift pins, bolts,
pieces of permanent material,
or any such articles to lie
loose on the structure, planks
or scaffolds.
Section 2.5: Grease and oil
spots on planking or anywhere
on the structure, as well as
around machinery, should be
eliminated or removed.
Section 2.6: In winter weather,
keep walkways, steps, planking
and other work areas free of
snow and ice. Supply of salt
should be available.
Section aca, When members
may be slippery due to grease,
oil, wet paint, frost or ice,
remove the foreign material
so far as possible and take
other necessary precautions.
Section 9.24: Engines,
compressors, or other equipment
must not be permitted to drip
oil or grease on the structure.
Section 13.5: All gang ways,
ladders, stairways and passages
must be kept free of ice, snow
A-54
and grease.
Section 13.10: Decks of barges,
boats, etc. must be kept clean
of unnecessary tools and
materials. Lines must be coiled,
tools stored and materials
stacked clear of working spaces.
Not all of the above sections apply
directly to plaintiff and defendant's
conduct in this specific case, but they
are important to the evaluation of Count
II of plaintiff's Complaint. From the
circumstantial evidence provided in the
testimony of plaintiff and Mike Mark,
the Court can infer that plaintiff's
work area was in an unseaworthy condition.
The Court finds that there was a proximate
cause relationship between the unseaworthy
condition and plaintiff's injury and
that plaintiff's conduct did not amount
to contributory negligence.
In determining damages, the Court
will first consider the aspect of future
lost wages. The Court first notes that
neither party presented any expert
A-55
testimony with regard to the issue of
estimating future lost wages. In an
attempt to determine such a figure, the
Court is guided by Justice Stevens opinion
for a unanimous United States Supreme
Court in the case of Jones and Laughlin
Steel Corporation v. Pfeifer, 76 2d 768
(1983).
The Court will first attempt to
define the actual wage of the plaintiff.
In cross-examination of the plaintiff,
defense counsel elicited by adding the
W-2 forms of the plaintiff for 1982 a
gross age of $27,429.80. Plaintiff
deducted $503.00 in work related expenses.
The resulting figure would be $26,926.80.
Whether fringe benefits should _ be
included in the actual wage of the
plaintiff, was a recurring issue in the
case. The fringe benefits were not
reflected in the W-2's. Regarding this
issue the Court in Jones and Laughlin
Steel Corporation Vv. Pfeifer states:
adel
ai)
In addition, the worker may have enjoyed
ertain fringe benefits, which should
»e included in an ideal evaluation of
he worker's loss, but are frequently
xcluded for simplicity sake." Footnote
2 at 76 Lawyers Edition 2d page 781
ndicates "these might include insurance
overage, pension and retirement plans,
rofit sharing and inkind services."
laintiff's exhibit 19, which is the
nion contract between ocal 520 and
he Southern Illinois Contractors
7 cents ‘ straiaqht time hours to the
Ser | vTSare na , yr jane rrnay+tnoao T + l
MpPLO y ¢ r(S 1nd * ra LilW ongineers LOCcCa
in : .
2 Health and Welfare Fund, and that
; —
he employer agrees ti contribute $1.5]
~ } . Rimr ) ‘ rc nea y - ~ 4 rw >
é Employers and pera ng Engineers
:
‘al 2 Pension Fund for straight time
irs worked. rhe total of these two
ligqures Ls 52.38. The Court has chosen
ide he her fringe benefits
Sw |
referred to in the union contract because
they do not directly benefit the employee.
Mr. Dungey worked approximately
2,000 hours in 1982, which would result
in an annual fringe benefit of
approximately $4,760.00.
Rounding off, the Court is using
an estimate annual wage of $31,500.00.
In this case the Court finds that
the plaintiff would have continued to
work until the age of 62 if he had not
been injured. (13 1/2 more years).
Judge Stevens in Jones and Laughlin
Steel Corporation Vv. Pfeifer, supra,
stated "we do not suggest that the trial
judge should imbark on a_e search for
delusive exactness. It is perfectly
obvious that the most detailed inqu_ry
can at best produce an approximate result."
The Court went on to state “we are
satisfied that whatever rate the District
Court may choose to discount the estimated
stream of future earnings, it must make
A-58
a deliberate choice, rather than assuming
that it is bound by a rule of state law."
The Court previously indicated in it's
opinion that a discount rate may not
be necessary if there are sufficient
offsetting factors. In referring to
Carlson, Economic Analysis v. Courtroom
Controversy, 62 ABA Journal 628 (1976)
the Court stated: "He thus recommended
that the estimated loss of future wages
be calculated without considering either
price inflation or societal productivity
gains. All that would be’ considered
would be individual seniority and promotion
gains. If this were done, he concluded
that the entire market interest’ rate,
including both inflation and the _ real
interest rate, would be more than
adequately offset.”
The evidence in this case indicated
that the plaintiff had accumulated a
substantial amount of seniority within
Operating Engineers Local Union No. 520.
A-59
His seniority ranking could only increase
as time went on. As the result of
seniority, he is allowed preference in
choosing specific jobs available, and
of course he would be allowed to work
more hours than any member with less
seniority. In the Jones case, Justice
Stevens indicated "with the passage of
time, an individual worker often becomes
more valuable to his employer. His
personal work experience increases hourly
contribution to firm profits. To reflect
that heightened value, he will often
receive seniority or experience raises,
merit raises, or even promotions. Although
it may be difficult to prove when, and
whether, a particular injured worker
might have received such wage increases,
they may be reliably demonstrated for
some workers."
In this case it is certain that
Mr. Dungey's seniority rights would
increase. As a result of this, he would
A-60
have a greater opportunity to increase
his wage rate and the number of hours
he worked as his time in the Union
increase.
In this case the Court feels the
evidence regarding the plaintiff's
employment allows the Court to conclude
that the entire market interest rate,
including both inflation and the _ real
interest rate, would be more than
adequately offset. Thus, the Court has
multipled $31,600.00 by 13.5 years and
reached a figure of $426,600.00.
The next issue is whether the amount
should be reduced by any anticipated
future earnings of the plaintiff.
Defendant supplied extensive testimony
with regards to the work skills of the
plaintiff and his potential "vocational
rehabilitation". The Court does not
share the optimism of the witness’ that
testified regarding the future
employability of the plaintiff. The
A-61
plaintiff's age, physical condition,
educational and vocational skills do
not make him a prime candidate for a
high paying "light duty” job. The Court
does feel that Mr. Dungey is physically
and vocationally prepared to obtain some
sort of employment. Mr. Dungey's work
record indicates a man who has-’~ worked
steadily throughout his life, and _ the
court is sure that he will make a good
faith attempt 2n—ehre—feture to continue
to seek employment in the _ future. The
Court is not confident that the plaintiff
will receive what might be termed a
"full-time, good paying job". The Court
has calculated that a full-time job at
minimum wage ($3.35 times 2,000 hours)
would result in an annual income of
$6,700.00. The court feels it reasonable
to conclude that the plaintiff will earn
a minimum of $6,700.00 per year until
his retirement in either a full-time
or part-time position. Thus, the Court
A-62
will reduce the award by $90,450.00,
which was determined by multiplying
$6,700.00 by 13.5 years.
7 Regarding the tax effect on _ both
the present and future aspects of the
: Court's award, the Court feels that the
tax factors will offset each other. In
reaching this conclusion, the Court feels
3 that in addition to the factors previously
discussed, that the Court chose a
3 | conmarreetes work life of 13.5 years
as opposed to 16.5 years or higher, and
aiso the fact that the award has_ been
reduced by potential future earnings.
The Court will next address’~ the
issue of medical bills. The Court in
this ‘case was faced with the complex
problem of deciphering what appears in
many instances to be conflicting medical
testimony. | The Court finds that based
on the testimony presented, that the
plaintiff's neck, lower back and _ the
right ulnar neuropathy at the elbow were
A-63
)
)
)
causally connected to the accident in
question in this’~ case. In reviewing
plaintiff's exhibit number 25 the Court
received a total of $22,641.08 in medical
expenses. The Court reduces that amount
by $772.84, which is the June 14, 1983
St. John's Mercy Medical hospital bill;
June 14, 1983 anesthesiologist bill of
$225.00; subtract $101.00 from the July
7, 1983 anesthesiologist bill; subtract
$386.42 from the July 18, 1983 St. John's
Mercy Hospital bill. The total reduction
would then be $1,484.84, leaving an amount
of $21,156.24.
Dr. Jacob's bill was submitted at
$16,265.00. That amount is’ reduced by
services he performed on June 14, 1983
in the amount of $1,901.00 and the services
on July 7 in the amount of $832.00, leaving
a total of $13,532.00. The pharmacy
bills were approximated at $812.85. The
Court has reduced that figure to $600.00.
The medical bills proximately
A-64
rr rr rt vFrerFrvVwTFrTrToTT T7097 TF °F
connected with the accident in this case
amount to $35,288.24.
The Court has calculated the lost
wages for a period of two years and four
months and arrived at a figure of
$73,628.00.
The plaintiff in this case testified
as to the pain and discomfort that he
has and presently suffers and the testimony
indicates he will continue to suffer
in the future. Difficulty in sleeping,
inability to sit or stand for extended
periods of time, constant discomfort
or pain resulting in continued medication,
limitation of movement and the resulting
restrictions on every day life. The
balance of the Court's award is
consideration for past, present and future
pain, suffering, discomfort and the
resulting restriction on plaintiff's
ability to enjoy life. |
pefenéast “s affirmative defense
based on plaintiff's acceptance of
A-65
—
workmen's compensation benefits is denied
based on the case of Radford v. Webb,
596 F.2a@ 1205 (4th Circuit, 1979).
WHEREFORE, the Court enters judgment
in favor cf the plaintiff on Counts I
and II of plaintiff's Complaint in the
amount of Six Hundred and Fifty Thousand
Dollars ($650,000.00) plus costs of court.
Filed May 10, 1985
ASSOCIATE CIRCUIT JUDGE
JAMES K. DONOVAN
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.