# Petition for Writ of Certiorari — Dungey v. USX Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0232%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 819 ## Text ee - 1] 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 ~< = Q = ica Ay Ay x 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. rt LX, 4 . - bu 4? rd ven ( ) tf) WY) 4 W) F b () qd) C) Ww) 48) ™M W) WY) : we J () J C) @ (N by . 148) fy €) tv) Ps NS . r 4 O AQ - = '_ co | $4 vT © *) C) c4 + .. t. mr rr 4 ©) 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0232%3A1. Public record. Not legal advice.