Appendix — Evans v. United Arab Shipping Co. S. A. G.

Filed August 13, 1993

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 92-5300. 92-5301. 92-5534 & 92-5535

WILLIAM W. EVANS.

Appellant at Nos. 92-5300 &

92-5534

Vv.

UNITED ARAB SHIPPING COMPANY S.A.G.: M/V AL

WATTYAH, her engines. boilers, equipment. etc.

UNITED ARAB SHIPPING COMPANY S.A.G..,

Appellant at Nos. 92-5301 &

92-5535

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Docket No. 89-05246)

Argued: February 22, 1993

PRESENT: HUTCHINSON, NYGAARD and SEITZ. Circuit

Judges

(Opinion Filed August 13. 1993)

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Jeffrey S. Moller, Esquire

Clark, Ladner, Fortenbaugh & Young

One Commerce Square

22nd Floor

2005 Market Street

Philadelphia, PA 19103

and

Edward V. Cattell, Jr.. Esquire

(Argued)

Clark, Ladner, Fortenbaugh & Young

Suite 300

Woodland Falls Corporate Park

200 Lake Drive East

Cherry Hill, NJ 08002-1178

Attorneys for William W. Evans

Cary R. Wiener. Esquire (Argued)

Saburabi N. Ibrahim, Esquire

Kirlin, Campbell & Keating

14 Wall Street

New York, NY 10005

Attorneys for United Arab

Shipping Company S.A.G.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellant/Cross-Appellee, William W. Evans (“Evans”), a

compulsory river pilot, brought this action in the United

States District Court for the District of New Jersey

pursuant to general admiralty and maritime law and the

Jones Act (“the Act”), 46 U.S.C.A. app. §688 (West Supp.

1993).' He sought recovery for personal injuries allegedly

sustained as a result of the negligence of the

appellee/cross-appellant. United Arab Shipping Company

1. Evans did not specifically plead a Jones Act claim in his complaint:

however. without objection. the district court recognized it as such based

on the theories on which his case was presented throughout the bench

trial. See typescript infra at 11 n.5.

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(“UASC” or “shipowner”). as well as the unseaworthiness of

UASC'’s vessel. The district court held that Evans was

covered by the Jones Act because a compulsory river pilot

qualifies as a “seaman”; furthermore. it held that Evans

was employed by the vessel at the time of his injury as the

Act requires. Because Evans was unable to show the extent

to which his accident aggravated a preexisting neurological

condition, however. the district court refused to award him

any damages for aggravation of this condition.

At our Docket No. 92-5301. UASC cross-appeals the

district court's order holding that Evans is a “seaman”

entitled to protection under the Jones Act. According to

UASC, Evans lacks the requisite employment relationship

with the shipowner as well as the permanent attachment to

the vessel that it says is required for seaman status under

the Act. As a prerequisite to recovery under the Act. a

plaintiff must establish that the injury occurred within the

scope of employment. Evans did not establish that he was

an employee of UASC within the meaning of the Act and

was instead an independent contractor. A shipowner does

not have the right to control the actions of a compulsory

river pilot or the right to hire or fire that pilot under

applicable Delaware law. We hold. therefore. that Evans is

not entitled to recover against UASC under the Jones Act

because he was not an employee of UASC acting within the

course of his employment when he was injured. This

disposition makes it unnecessary for us to reach the issue

of whether a compulsory river pilot must have a permanent

attachment to a particular vessel to claim Jones Act

protection.’ Nevertheless, we will affirm the judgment for

2. UASC also argues. in the alternative. that even if Evans is covered by

the Jones Act. he has not met his burden of proving that UASC

aggravated his preexisting neurological condition. At our Docket No. 92-

5300. Evans alleges that the district court erred in: (1) placing the

burden of establishing the amount of damages representing aggravation

of his preexisting neurological disease caused by UASC’s negligence

upon him: and (2) determining that he did not meet this burden and

therefore awarding no damages for aggravation of his pre-existing

neurological condition. Because of our conclusion on UASC’s cross-

appeal that Evans cannot maintain a Jones Act action. these issues are

also avoided.

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Evans, but on different reasoning than that used by the

district court.

The district court has already determined that Evans has

not established a legal or proximate cause between the

shipowner’s acts and aggravation of Evans's preexisting

neurological disease under traditional causation principles

and, instead, based its conclusion on the Jones Act's

“featherweight” standard of causation. Evans v. United Arab

Shipping Co.. 767 F.Supp. 1284. 1293 (D.NJ. 1991)

(Evans. The Jones Act's featherweight standard. in

common with most workers’ compensation statutes,

extends common law definitions of legal cause to include

precipitation as well as aggravation. Without the Act's

recognition of this broader rippling effect. the medical

evidence Evans presented is insufficient to show that his

accident while descending the ship's ladder aggravated his

preexisting. but largely asymptomatic, neurological disease.

Absent the Act’s extension of traditional views on the limits

of legal or proximate cause. we agree with the district

court's conclusion that this essential element to recovery

for aggravation of Evans's neurological disease is lacking. A

remand to the district court for a determination of whether

Evans can recover under general admiralty and maritime

law for aggravation of his neurological condition, therefore,

is likewise unnecessary. USAC has conceded liability for

Evans's orthopedic injury. Accordingly. we will affirm the

district court's order entering judgment for Evans in the

amount of $23.630.00 for the orthopedic injuries he

suffered, lost wages and pain and suffering and will do so.

See Evans v. United Arab Shipping Co.. 790 F. Supp. 516.

520 (D.N.J. 1992) (Evans I).

I.

Evans was a compulsory river pilot licensed by the

United States Coast Guard and the State of Delaware for

over forty years.* As a pilot. Evans was hired to steer ships

3. Pursuant to 46 U.S.C_.A § 8501 (West Supp. 1993. Partial Revision)

(delegating to the states the continued regulation of pilotage). Delaware

requires all vessels entering the Delaware Bay to take a state licensed

aaa et tanec acer inmaraiaataiareaiitiea alee all

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through the Delaware River and Bay and the Chesapeake

and Delaware Canal. During all times material to this

action, Evans was a member of the Pilot's Association for

the Bay and River Delaware (“the Association”). He paid

federal income taxes from 1986-89 as a_ self-employed

taxpayer.

UASC is jointly owned by the governments of Saudi

Arabia. Kuwait. Iraq. United Arab Emirates. Bahrain and

Qatar. It owns and operates the container vessel M/V AL

WATTYAH. On the night of September 9-10. 1989, Evans

was on call at the Lewes. Delaware pilot station and was

called to pilot the M/V AL WATTYAH toward the

Chesapeake and Delaware Canal as far as Chesapeake City.

Maryland where a Maryland pilot was to take over the

helm. A pilot launch took Evans to the ship. which he

boarded by a rope ladder with wooden rungs. known as a

pilot ladder or “Jacob’s ladder.” Evans had difficulty in

boarding from this ladder because it was in poor condition

but climbed aboard the vessel without incident. He then

piloted the ship to the Maryland border. As the vessel

approached the point where the Maryland pilot was to

board, Evans asked the master to rig the starboard side

accommodation ladder so that he could disembark without

using the poorly maintained Jacob's ladder that had made

boarding difficult. The accommodation ladder was a

staircase built of galvanized steel or aluminum. attached at

its top to the main deck of the vessel. from which it was

lowered to within a few feet of the water's surface. At its

lower end there was an attached adjustable platform that

could be fixed in position parallel to the water.

At trial, the parties did not dispute the circumstances of

the accident. The pilot launch arrived at the vessel with the

Maryland pilot on board. He stepped from the launch onto

the lowest rung of the accommodation ladder without ever

pilot aboard or be subject to penalties and fines. See Del. Code Ann. tit.

23. § 121 (1987). The statute also recognizes that the vessel may have to

carry the pilot to sea if he cannot be removed from the vessel at the

outer edge of the pilotage ground with safety. See id. § 132 (1987)

(compelling compensation for pilot carried to sea).

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setting foot on the lower platform. A few minutes later, a

seaman from the M/V AL WATTYAH started down the

accommodation ladder to deliver Evans's briefcase to the

launch and to assist Evans in leaving the vessel. As the

seaman stepped onto the lower platform. it pivoted and

dropped. The seaman fell but suffered no injury. After

seeing the seaman examine the platform, Evans inquired

whether it was safe to use the accommodation ladder.

Evans understood the seaman’'s response to mean that the

ladder was safe and he proceeded to descend. When he

reached the lowest rung, he stepped onto the platform. It

pivoted on its axle and dropped out from under him. He

shifted his weight to the handrail. The handrail collapsed

and he fell and struck the deck of the launch with his

tailbone. In the fall Evans's face and left rib cage hit the

outboard channel of the accommodation ladder. Shaken.

Evans succeeded in climbing aboard the launch with the

assistance of another seaman. See Evans I, 767 F. Supp. at

1285-87.

Evans brought this action against UASC as _ the

shipowner and the M/V AL WATTYAH in rem seeking

damages under general admiralty and maritime law for

orthopedic and neurological injuries suffered while

disembarking from UASC’s vessel. Evans pleaded a

negligence and unseaworthiness theory against UASC and

the vessel. He did not specifically plead a Jones Act claim

in his complaint; however, he raised that theory in the

district court and tried his case on it without timely

objection. See infra n.5. In his complaint, Evans alleged

that he suffered orthopedic injuries which included a

fractured nose. fractured ribs and a fractured coccyx. X-

rays revealed that he did. in fact. suffer a fractured nose.

but he produced no evidence to show any other orthopedic

injury.

According to Evans, within one or two days of the

accident, he and his wife noticed for the first time a

slurring of his speech and a weakness and lack of balance

in his walking. There has been a Steady deterioration in his

ability to speak or walk ever since the accident. His

worsening condition has led to several serious falls since

the accident. One, in February 1990, resulted in a

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fractured wrist. and in May 1990 another led to a fractured

hip. Evans has been treated by several neurologists since

the accident. Sadly. as it turns out, Evans continues to

suffer from a serious neurological disease which causes

progressive deterioration of his motor functions. He is now

unable to swallow because bulbar paralysis affects his

tongue and, at the time of trial. could expect soon to be

bound to a wheelchair. Because of his deteriorating

condition, he has not piloted a vessel since November 10.

1989, and in June 1990 he was unable to pass the annual

physical exam required to renew his state pilot's license.

Evans presented evidence that he was healthy before the

September 1989 accident. In July 1989 in France, he had

successfully completed a week long course in ship handling

that is required of all Delaware Bay and River pilots. A

fellow pilot who took the course with him did not notice any

neurological or physical impairment. The evidence given at

trial on Evans's good health before the accident is. however,

conflicting. Dr. Bhatt. one of Evans's treating neurologists,

testified that he complained of difficulty walking and with

balance “for the last few months” at an examination on

October 4, 1989. Joint Appendix (Jt. App.) at 79-80. Dr.

Cook, another of Evans's treating neurologists, similarly

noted on January 16. 1990. that “prefall.” ie. before the

September 10, 1989. accident. Evans had complained that

his legs were tired and his balance was off. Dr. Cook

testified that at the time of the accident. Evans had not

been diagnosed as having any motor neuron disease but

that the condition probably existed in a dormant state.

Because of medical science’s uncertainty in the face of

neurological disorders similar to Evans's illness, no doctor

has been able to provide a firm diagnosis of his neurological

condition. Dr. Cook described Evans's illness as an

unusual genus of motor neuron disease resembling

amyotrophic lateral sclerosis (“ALS”). According to Dr. Cook.

absent this accident. Evans's prognosis would have been

unclear but he may never otherwise have experienced the

disabling symptoms which now affect him.

Dr. Duvoisin. UASC’s medical expert. after performing a

neurological examination of Evans and reviewing his

medical records. diagnosed Evans's condition as

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olivopontocerebellar atrophy (“OPCA”), a condition with

nerve degeneration that resembles ALS but otherwise also

generally presents symptoms like those of Parkinson's

disease. Dr. Cook testified that medical science does not

know what causes ALS or any other motor neuron disease:

but some controlled case studies reported in the medical

literature indicate that trauma could be a causative factor

of the disease or at least bring out the dormant

symptomatology. Dr. Cook could not. however. testify with

a reasonable degree of medical certainty that the trauma of

the accident most likely precipitated an otherwise iatent

problem; he could state only that it was “entirely possible”

and that he “relati[ed] the onset of Evans's motor neuron

disease ... to the fall he suffered on September 10, 1989.”

Jt. App. at 115, 116. Dr. Duvoisin, on the other hand.

attempted to rule out trauma as a causal factor in Evans's

neurological disease. He opined that there was probably a

genetic link to the disease. He conceded. however. that he

could not completely rule out trauma as a causative factor

“one million percent” but considered it extremely

improbable and “philosophically meaningless. Jt. App. at

96-97. Medical articles reporting cases that could support

the trauma theory were identified by the experts at trial but

not introduced as affirmative evidence on Evans's behalf.

On July 30, 1991, after considering all of the evidence,

the district court issued an interim opinion and order

holding that Evans was a “seaman” under the Jones Act.

Evans I, 767 F.Supp. at 1288-91. It further determined

that Evans sustained personal injuries as a result of the

negligence of the shipowner because the crew of the vessel

had negligently rigged the platform and handrail of the

accommodation ladder. Id. at 1292. It found that the

handrail on the outboard side of the ladder was defective

because a stanchion was missing, causing it to collapse

when Evans leaned on it. id. and that a motor neuron

disease resembling ALS permanently disabled Evans. The

court then found that the motor neuron disease preexisted

4. We note that a physician's view of causation is not that of a judge or

lawyer who thinks of causation not only in terms of etiology but also in

terms of aggravation or. in the workers’ compensation context.

precipitation.

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the fall but had been relatively asymptomatic and almost

completely latent before the fall. and therefore the

shipowner’s negligence aggravated it. Id. at 1293.

The district court also found legal cause with respect to

the orthopedic injuries. id at 1292-93. but after

considering the evidence. found that Evans missed only

thirty-eight days of work. from September 11. 1989, until

October 26, 1989. as a direct result of the accident. Id at

1287. With respect to the aggravation of Evans's

neurological disease. the court concluded “[i]f this were not

a Jones Act case with its attendant ‘featherweight’ standard

for proving causation. then this court would find that

defendant's negligence did not proximately cause or

aggravate plaintiffs neurological injuries.” Id. at 1293.

Under the featherweight standard of causation. the district

court believed the circumstantial evidence was sufficient to

permit an inference that Evans's fall from the ladder

aggravated his neurological symptomatology. Id

Nevertheless, the district court was unable, without

engaging in speculation, to separate the injury and

damages attributable to the aggravation of Evans's

neurological disease from those the disease would have

caused in any event. Id. at 1294. Therefore. it ordered the

record reopened for receipt and consideration of evidence

on segregation of the damages attributable to the accident’s

aggravation of Evans's neurological disease from those

caused by the underlying disease in its normal course. Id.

On November 22, 1991. the district court issued an order

placing on Evans the burden of establishing the damages

separately attributable to the shipowner's _ tortious

aggravation of his latent motor neuron dysfunction because

he was in the best position to do so. On February 6. 1992.

the district court denied Evans's motion for reconsideration

of its ruling on the burden of segregating damages. On

March 17, 1992, the district court also denied UASC’s

motion for reconsideration of its determination that Evans

was a Jones Act seaman.

In its final order and opinion, dated May 1. 1992. the

district court entered judgment in favor of Evans on his

Jones Act claim: however. the court held that Evans failed

to produce evidence sufficient to establish the extent to

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which his preexisting neurological condition was aggravated

by the shipowner's negligence. Evans I], 790 F.Supp. at

518-20. The district court therefore awarded Evans

damages only for his fractured nose plus lost earnings of

$15,155.00 for thirty-eight days. medical expenses of

$875.00 for treatment of the fractured nose, and $7,600.00

for pain, suffering. and loss of enjoyment for his nose injury

together with prejudgment interest. Jd. at 520. Evans filed

a timely notice of appeal on May 29, 1992. UASC filed a

cross-appeal on June 4, 1992.

ll.

The district court had subject matter jurisdiction over

this admiralty action under 28 U.S.C.A. § 1333 (West 1966)

and the Foreign Sovereign Immunities Act, 28 U.S.C.A.

§ 1330 (West Supp. 1993). We have appellate jurisdiction

over the final order of the district court pursuant to 28

U.S.C.A. § 1291 (West Supp. 1993).

Construction of the statutory term “seaman” is a

question of law. McDermott Int'l, Inc. v. Wilander, 111 S. Ct.

807, 818 (1991). Thus we exercise plenary review over the

district court's interpretation of the term “seaman” under

the Act. Whether Evans ultimately qualifies as a “seaman”

under the Act is a mixed question of law and fact. Id. This

Court's cases leave things somewhat unclear about the

scope of review over a district court’s conclusion concerning

a worker's status as an employee. In a Jones Act case,

Matute v. Lloyd Bermuda Lines, Lid.. 931 F.2d 231 (3d Cir.).

cert denied. 112 S.Ct. 329 (1991), we stated, “The

existence of an employer-employee relationship is a

question of fact ....” Id. at 236. In a later case involving

the Fair Labor Standards Act, Martin v. Selker Brothers,

Inc.. 949 F.2d 1286 (3d Cir. 1991), we opined, “The

employment status of the [employees] is a legal conclusion.

Thus, our standard of review ... is plenary.” Id at 1292

(citation omitted). We think these cases indicate that

employer-employee status is sometimes, as here. a mixed

question of law and fact. Accordingly, in this case we will

exercise plenary review over the district court's selection of

the standard by which employment status is judged. but

overturn its subsidiary factual findings only if they are

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clearly erroneous. See Fed.R. Civ.P. 52(a). Once the

underlying facts are established. and the rule of law is

undisputed. the issue of whether the facts meet the

Statutory standard is an issue of law. McDermott. 111 S. Ct.

at 818.

Il.

Jones Act Claim?

Congress passed the Jones Act in 1920 to overrule the

United States Supreme Court's decision in The Osceola.

189 U.S. 158 (1903). See McDermott. 111 S.Ct. at 810-11.

The Osceola held that seamen had a general maritime right

to maintenance and cure and wages. as well as a right to

recover for unseaworthiness, but were excluded from the

general maritime negligence remedy against the shipowner.

See id at 810 (citing The Osceola. 189 U.S. at 175): see

5. UASC alleges that Evans's Jones Act claim is barred because he failed

to plead Jones Act status in his complaint. The Jones Act claim was.

however. raised and argued fully at the bench trial. Federal Rule of Civil

Procedure 15(b) provides when issues not raised by the pleadings are

tried by implied consent of the parties. they shall be treated as if they

had been raised in the pleadings. Amendments are to be freely granted

upon motion even after judgment unless the opposing party can show

prejudice. Fed.R. Civ. P. 15(b). In this case. Evans did not move to

amend the pleadings. Failure to move to amend the pleadings to conform

to the evidence does not affect the result of the trial.

Evans asserts that the Jones Act claim was argued without objection

from UASC and therefore any objection has been waived. See Altman v.

Altman. 653 F.2d 755. 758 (3d Cir. 1981) {issue not raised in district

court will not be heard on appeal absent exceptional circumstances).

UASC claims that it objected to Evans's Jones Act status in a letter-

memorandum to the district judge dated March 24. 1992. There is no

evidence of this letter in the district court docket sheet or the record

before us. We are thus unable to consider it. In any event. this letter was

allegedly submitted to the district court after conclusion of the bench

trial on March 7. 1991. after the district court issued its interim opinion

and order holding that Evans was a “seaman” under the Jones Act on

July 30. 1991. and after the district court denied UASC’s motion to

reconsider its Jomes Act status determination om March17. 1992.

Therefore. UASC failed to preserve this procedural issue for appeal.

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also GrantGilmore & CharlesL. Black, Jr., The Law of

Admiralty 328-29 (2d ed. 1975) (‘The only purpose of the

Jones Act was to remove the bar created by The Osceola, so

that seamen would have the same rights to recover for

negligence as other tort victims.”). Because the Jones Act

created new rights for “seamen.” it should be liberally

construed to accomplish its beneficent purposes. See

Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783. 790

(1949).

The Jones Act provides, in pertinent part:

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 actions 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 ....

46 U.S.C.A. app. § 688(a) (emphasis added). The Jones Act

does not define the terms “seaman” or “in the course of his

employment.” We have. on prior occasions, considered the

scope of the term “seaman” but never in the context of a

compulsory pilot. See Mach v. Pennsylvania RR. Co., 317

F.2d 761 (3d Cir. 1963): see also Griffith v. Wheeling

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

denied, 423 U.S. 1054 (1976). Case law that had developed

on the definition of seaman before the Supreme Court's

decision in McDermott required a permanent connection to

a particular vessel, both generally and specifically, with

respect to traditional compulsory pilots. See. e.g., Bach uv.

Trident S.S. Co., 920 F.2d 322, 324-25 (Sth Cir.). vacated

and remanded, 111 S.Ct. 2253. reaffd on remand, 947

6. Statutory definitions of “seaman” appear only in an _ unrelated

merchant seamen’s protection and relief provision and a provision

dealing with maritime commercial instruments and liens. The merchant

seaman provision states: “‘searman’ means an individual (except

scientific personnel. a sailing school instructor. or a sailing school

Student) engaged or employed in any capacity on board a vessel.” 46

U.S.C.A § 10101 (West Supp. 1993. Partial Revision). The maritime lien

provision states: “ ‘seaman’ means a master or a crewmember of a vessel

in operation.” 46 U.S.C.A. § 30101(5) (West Supp. 1993 Partial Revision).

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F.2d 1290 (5th Cir. 1991). cert denied. 112 S.Ct. 1996

(1992); Clark v. Solomon Nav. Ltd., 631 F. Supp. 1275. 1279

(S.D.N.Y. 1986). Following McDermott. the Court of Appeals

for the Fifth Circuit held. over a vigorous dissent, the

permanent connection requirement as applied to

compulsory pilots survived McDermott. See Bach. 947 F.2d

at 1291. This Court's case law is not entirely clear on how

the permanent connection factor applies to persons who

perform the core functions of a seaman on a vessel in

navigation.’ Because we conclude a compulsory river pilot

such as Evans is not an employee of the vessel he pilots, he

would be unable to recover under the Jones Act even if he

is a seaman. Accordingly. we do not decide whether the

requirement of permanent attachment survives McDermott

with respect to Jones Act coverage of persons who. like

compulsory pilots. perform core navigational functions on a

traditional vessel plying the seas or waterways in the

traditional way of trading vessels. as opposed to the various

kinds of recently developed more or less fixed offshore

platforms in whose context the permanent attachment

7.In Griffith. we set forth three factors to determine whether a land

based barge loader was covered under the Longshoremen's and Harbor

Workers’ Compensation Act (“LHWCA"), 33 U.S.C.A. §§ 901-950 (West

1986 & Supp. 1993) or under the Jones Act as a seaman. We required

that (1) the ship be in navigation: (2) there be a more or less permanent

connection with the ship: and (3) the worker be aboard primarily to aid

in navigation. Griffith, 521 F.2d at 36 (quoting M. Norris. The Law of

Seamen § 668 at 301 (3d ed. 1970)). In our previous decision in Mach.

we had held that a bargemman who was permanently employed at a

railroad dock and who was injured while moving a barge into position for

unloading at the dock was a “seaman” under the Act. Mach. 317 F.2d at

764. Mach did not mention who owned the barges. Griffith distinguished

Mach on the basis that the bargeman in Mach was permanently assigned

to work at the river landing for the defendant railroad where a

-Substantial amount of his work occurred on barges and involved

navigational functions. Griffith. 521 F.2d at 38. Mach. the earlier case.

could be controlling. It did not require permanent attachment to a

particular vessel for Jones Act seaman status. but only a job in which

a substantial portion of the employee's duties were performed in the

navigation of a vessel. Id.

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requirement was largely developed. See Bach, 920 F.2d at

333 (Brown, J., dissenting).°

The Jones Act provides a remedy for “any seaman who

shall suffer personal injury in the course of his employment

....-” 46 U.S.C.A. app. § 688(a) (emphasis added).* Thus, as

a prerequisite to recovery under the Act. the plaintiff must

establish an employment relationship with the defendant.

Matute, 931 F.2d at 235-36 (The Jones Act provides

seamen a suit for damages against employers for injuries

incurred while at sea. and the plaintiff must establish an

employment relationship to recover under the Act.”); Simko

v. C&C Marine Maint Co., 594 F.2d 960, 963 n.2 (3d Cir.),

cert. denied. 444 U.S. 833 (1979): see also Cosmopolitan

Shipping. 337 U.S. at 790-91: Haskins v. Point Towing Co..

421 F.2d 532, 536 (3d Cir.) (“Rights given under the Act are

an outgrowth of the peculiar condition of a seaman’s

employment.”). cert. deniea, 400 U.S. 834 (1970); McAleer v.

Smith, 818 F. Supp. 486, 192 (D.R.I. 1993). In this respect.

the Act is the maritime equivalent of the Federal Employers’

Liability Act (“FELA") covering railroad employees. See 46

U.S.C.A. § 688.

The district court did not engage in any detailed analysis

of the employment question. instead holding that “on the

8. We note that other courts. including. by implication. the United States

Supreme Court. continued to recognize the continuing vitality of the

permanent attachment requirement after McDermott. See. e.g.. Southwest

Marine, Inc. v. Gizoni. 112 S. Ct. 486. 494 (1991): McKinley v. All Alaskan

Seafoods, Inc.. 980 F.2d 567. 569 (Sth Cir. 1992): Bach. 947 F.2d at

1291; Harwood v. Partredereit AF 15.5.81. 944 F.2d 1187. 1192 (4th Cir.

1991). cert. denied. 112 S.Ct. 1265 (1992). Most of the courts that have

considered the test's applicability to compulsory pilots have

likewise concluded that a compulsory pilot is not a seaman under the

Act because he lacks permanent attachment to an identifiable vessel or

fleet of vessels. See. e.g.. Bach. 947 F.2d at 1291: Harwood, 944 F.2d at

1192; Stoller v. Evergreen Int'l (U.S.A) Corp.. No. C92-0466 FMS (N.D.

Cal. Sept. 1. 1992): Ray v. Great Lakes Towing Co., No. 3:92CV7034

(N.D. Ohio Feb. 25. 1992) (mem.): Clark. 631 F.Supp. at 1279. But see

Bach, 920 F.2d at 331-33 (Brown, J.. dissenting) (persuasively setting

forth contrary and logical position).

9. Neither the legislative history of the Jones Act nor that of the LHWCA

defines the phrase “in the course of his employment.”

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morning of September 10. 1989, [Evans] was acting [as a

river pilot] aboard the M/V AL WATTYAH when the accident

occurred. The ship's owner employed Mr. Evans through

the services of the Pilot's Association .... Therefore. he had

that ‘employment-related connection’ essential to

determining seaman status.” Evans I. 767 F. Supp. at 1291

(quoting McDermott. 111 S.Ct. at 817). Although making

this limited finding with respect to the employment

element. the district court did not explicitly determine

whether Evans was an employee of UASC and injured “in

the course of his employment.” a prerequisite for Jones Act

liability. Instead. it stated that Evans's work contributed to

the mission of the ship and required him to confront the

hazards of the sea faced by other members of the ship's

crew and summarily concluded. “Mr. Evans. therefore. is

entitled to the protection of the Jones Act.” Id. In doing so,

the district court appeared to confuse the in navigation

prong of the seaman test with the additional requirement

that a seaman be injured in the course of his employment.

We believe it is necessary to determine separately whether

the requisite employment relationship exists between UASC

and Evans.

In determining Evans's employment status. we think it is

proper to apply ordinary principles of the law of agency

adjusted by an eye on the peculiarities of maritime life.

Traditional agency law looks mainly to the degree of control

the principal exercises over the agent. See Restatement

(Second) of Agency § 220(1) (1958) (“A servant is a person

employed to perform services in the affairs of another and

who with respect to the physical conduct in the

performance of the services is subject to the other's control

or right to control.”). We have noted that factors indicating

control include payment. direction, supervision and the

power to hire or fire. See Matute. 931 F.2d at 236. Other

factors include the power to determine the route of the ship

and the activities of the crew. See Cosmopolitan Shipping.

337 U.S. at 795.

The relation of master and servant may exist although

the law requires the selection of a worker from a limited

class, and the master is liable for torts servants so selected

commit within the scope of employment. Restatement

A-16

(Second) of Agency §223. With respect to compulsory

pilots, a comment to the Restatement specifically provides:

c. Compulsory pilots. Under statutes requiring

shipowners to accept the services of licensed pilots

other than persons already in the shipowner's employ

upon entering or leaving port. the shipowner is not

liable for the negligence of the pilot in the navigation of

the ship, if the effect of the pilotage statutes is to

remove control over the navigation of the ship from the

shipowner and place it entirely in the pilot. In such

case, the relation of master and servant does not exist

between such owner and the pilot... .

Id. §223 cmt. c. (second emphasis added). We must

consider. therefore, the pilotage statute which governs the

relationship between Evans and UASC to determine the

extent to which it gives control of the ship to the pilot.

The relevant Delaware statute provides for the licensing.

training and discipline of pilots. See generally Del. Code

Ann. tit. 23. §§ 103-137 (1987 & Supp. 1992). It also

provides that all ships entering Delaware ports must take a

compulsory pilot on board or face a lawsuit by the pilot

who offered the services for full pilotage rates either in

personam or in rem through a lien on the vessel.’° The

statute does not address the degree of control over the

10. The statute provides. in relevant part:

Every foreign ship or vessel and every ship or vessel engaged in

foreign commerce or trade arriving from or bound to any foreign port

or place. passing in or out of the entrance to Delaware Bay. and

between the points of land known as the Capes of the

Delaware. shall be obliged to receive a pilot. . . . If the master of any

ships or vessels. after she is spoken or a pilot offered, refuses or

to take a pilot. the master, owner or consignee of such

vessel shall forfeit and pay to any such pilot suing for the same a

sum equal to the pilotage of such ship or vessel to be recovered by

a suit in the courts of this State . . . or such pilot may pursue his

remedy therefor by a libel in admiralty in any United States court

either in personam or by proceeding in rem. to enforce the lien given

him on such ship or vessel. as such pilot may see fit and proper to

do.

Del. Stat. Ann. tit. 23. § 121 (1987).

A-17

vessel that the pilot has and the master relinquishes. It is

therefore of little help to our analysis.

UASC argues that Evans cannot bring suit against it

under the Jones Act because Evans was either an

independent contractor, as evidenced by his 1986-89

federal income tax filings as a self-employed taxpayer. or an

employee of the Pilots’ Association. Evans's tax treatment of

his earnings as a pilot is relevant evidence on his

employment status, but it is not determinative of the degree

of control the shipowner could exercise over him."

Few cases address the application of the Jones Act's

employment requirement to compulsory pilots. None have

held a compulsory pilot is an employee of a vessel he pilots.

Instead, they have held that compulsory pilots are either

employees of the pilots’ association or independent

contractors. Compare Harwood, 944 F.2d at 1189

(compulsory harbor pilot who was member of Virginia

Pilots’ Association held to function as independent

contractor) and Bach v. Trident Shipping Co.. 708 F. Supp.

772, 773-74 (E.D. La. 1988) (compulsory pilot held to be

independent contractor), affd on other grounds, 920 F.2d

322 (Sth Cir.), vacated and remanded. 111 S.Ct. 2253.

reaffd on other grounds, 947 F.2d 1290 (5th Cir. 1991),

cert. denied, 112 S. Ct. 1996 (1992) and Clark. 631 F. Supp.

at 1275 (parties agreed that compulsory river pilot who

worked for his own company. a member of pilots’

association, was independent contractor and not employee

of shipowner in suit by pilot brought solely under general

maritime law) with Ray v. Great Lakes Towing Co., 92 Civ.

7034 (N.D. Ohio Feb. 25, 1992) (compulsory pilot was

employee of pilots’ association). But see Guy v. Donald, 203

U.S. 399, 407 (1906) (in negligence action by shipowner

against members of pilots’ association for negligence of its

compulsory pilot. association held not liable because had

no control over shipboard job performance of its members).

11. Given the nature of the tasks a compulsory pilot performs. it is

difficult to conceive of any other federal taxation category into which

Evans would fit. The determination of employee status depends on

substance not form. and we decline to accord Evans's tax treatment

controlling weight.

A-18

In the case at bar. we are persuaded that there is no

employer-employee relationship between Evans and the

shipowner. In Bach. the district court discussed Magnolia

Towing Co. v. Pace. 378 F.2d 12, 13 (Sth Cir. 1967) (per

curiam) which affirmed a Jones Act verdict in favor of a

river pilot who had worked directly for the defendant for

one year, was paid a monthly salary by the defendant and

was therefore permanently assigned as pilot to one or

another of the defendant's tugboats. The Bach court

distinguished Pace because the pilot in Pace was a

permanent. salaried employee of the defendant. Bach. 708

F.Supp. at 773. On appeal. the employer-employee

relationship was not put in issue. Bach. 920 F.2d at 324-

26. The district court in Bach had held that a compulsory

pilot. a member of the pilots’ association. was an

independent contractor even though the shipowner had a

right to refuse the pilot’s services and incur the penalties

the pilotage statute imposed. and the pilot fee was

characterized as “wages.” Bach. 708 F.Supp. at 773-74.

The district court concluded that these facts were not

inconsistent with a compulsory pilot's status as an

independent contractor. Id. We agree with the district court

in Bach that these facts are insufficient to show that a

compulsory pilot is employed by the vessel piloted. See also

Bach, 920 F.2d at 327 n.5 (record did not show that

compulsory pilot was employee of anyone).

The cases that concern a shipowner’s liability for a pilot's

negligence are instructive. Generally. shipowners are not

liable for torts committed through the negligence of a

compulsory pilot under the theory that the owner had no

discretion to-select the individual. See The China, 74 U.S.

(7 Wall) 53 (1868). The vessel. however. may be held liable

in rem. See id. Where the pilot is taken at the discretion of

the shipowner. the case for a master-servant relationship is

stronger and the owner may be held to answer for the torts

of the pilot. See Homer Ramsdell Transp. Co. v. La

Compagnie Generale Transatlantique, 182 U.S. 406. 416

(1901) (quoting Story. Treatise on Agency 2d ed. § 456a):

see also Black & Gilmore. supra, §7-16 at 520 (“A pilot

may be taken on voluntarily or under the compulsion of

some local statute or regulation. The voluntary pilot is in

much the same position as any other crew member. . .. [lf

A-19

the pilotage is ‘compulsory’ the respondeat superior nexus

is broken, and the shipowner cannot be held personally

liable for the fault of the pilot resulting in collision.”). Even

in the case of the compulsory pilot, though, the shipowner

may still be liable in personam if found to be somehow at

fault. See Chesapeake Bay Bridge & Tunnel Dist. v.

Lauritzen, 404 F.2d 1001, 1007 (4th Cir. 1968) (statutory

pilot's presence does not lessen master’s duty or authority

and shipowner held responsible if master fails to act to

correct pilot's dangerous actions); see also City of Los

Angeles v. Standard Transp. Co., 32 F.2d 988 (9th Cir.

1929) (safety of all aboard remains with master despite

presence of municipal pilot); Robins Dry Dock & Repair Co.

v. Navigazione Libera Triestina S.A., 32 F.2d 209, 210 (2d

Cir.) (ship captain not totally divested of authority by

presence of compulsory pilot), cert. denied, 280 U.S. 574

(1929); cf. The China, 74 U.S. (7 Wail) at 67-68 (owner may

countermand pilot upon discovery of pilot’s incapacity or

intoxication).

The Delaware statute that required UASC to take Evans

on board and accept his services as a pilot is similar to the

New York pilotage law the Supreme Court considered in

both Homer Ramsdell and The China. Compare Del. Stat.

Ann. tit. 23, §§ 117, 121-26 with N.Y. Navigation Law § 88

(McKinney 1992). In Homer Ramsdell, the Supreme Court

held in the case of a compulsory pilot that neither the

master nor the shipowner was liable for the negligence of

the pilot under common law because the * ‘pilot cannot be

deemed properly the servant of the master or the owner,

but is forced upon them, and the maxim, Qui facit per

aliam facit per se.’ does not apply.’” Homer Ramsdell, 182

U.S. at 416 (footnote added) (quoting Story. Treatise on

Agency 2d §456a)). Application of this maxim to the

relationship between shipowner and compulsory pilot was

essential to the result in that case.”

12.The Latin means, “He who acts through another acts himself.”

Black's Law Dictionary 1124 (5th ed. 1979).

13. The United States District Court for the Eastern District of New York.

in a single case. has held that where. under the same New York statute.

the vessel could elect to engage a pilot or to have the ship piloted by its

A-20

It remains material here. where UASC was also required

by statute to pay a fee for Evans's compulsory services. At

the completion of the voyage. the ship's master signed the

pilot's “ticket” acknowledging that Evans was on board and

performed services. Evans subsequently dispatched an

invoice for those services to the shipowner. Evans stated in

his deposition that he was a self-employed member of the

Pilots’ Association. As in The China, the master of the

vessel retained the ability to countermand the pilot in

exceptional circumstances and did not relinquish all right

of control over the vessel to the compulsory pilot. See

Charente S.S. Co. v. United States. 12 F.2d 412, 413 (5th

Cir. 1926) (master may displace pilot in instance of

manifest incompetence); In re Hercules Carriers, Inc.. 566

F. Supp. 962. 974, 978-79 (M.D. Fla. 1983). aff'd. 761 F.2d

1558 (11th Cir. 1985). But the master has no discretion in

selecting or firing a pilot or taking control from him absent

an extraordinary situation. The compulsory pilot is in

supreme command of the vessel while he is navigating it.

Only if he displays gross negligence does the master have

the authority to remove a compulsory pilot from the helm

or to countermand the pilot's orders and the master. if he

does so. acts at the risk of penalty for violation of the state

regulatory provision. See The China, 74 U.S. at 67-68: cf.

Bisso v. Inland Waterways Corp.. 349 U.S. 85. 94 (1955)

(“Under law and custom [pilots] have an independence

wholly incompatible with the general obligations of

obedience normally owed by an employee to his employer.

-_. As a rule no employer. no person. can tell them how to

perform their pilotage duties. ... [Plilots are usually free to

master and pay the pilotage. the pilot engaged by the vessel was an

“employee” within the Jones Act with regard to liability for the pilot's

death. and Homer Ramsdell was not controlling because it presented a

situation where a third party was attempting to sue the shipowner for

the pilot's negligence. Peterson v. United New York Sandy Hook Pilots’

Ass'n, 6 F. Supp. 649 (E.D.N.Y. 1934). That case has not been overruled

but it also has never been cited and seems directly contrary to the

decision in Homer Ramsdell. Moreover. the Delaware pilotage statute

states that ships entering state waters “shall be obliged to receive a

pilot.” Del. Code Ann. tit. 23. § 121. No alternative is present and non-

compliance requires a forfeiture of the pilot fee. See id.

A-21

act on their own best judgment while engaged in piloting a

vessel.”). While we recognize that the master of the vessel

may be found negligent and have his license suspended or

revoked if he fails to take action to relieve a pilot when he

concludes that the pilot is taking the vessel into danger, see

The Oregon. 158 U.S. 186, 194 (1895): Ralli v. Troop, 157

U.S. 386 (1895); Chesapeake Bay Bridge and Tunnel, 404

F.2d at 1007, we think this limited control is insufficient to

import an employer/employee relationship under the

maxim which supplies the Supreme Court's rationale in

Homer RamsdelL

Because the principles enunciated in Homer Ramsdell are

Similar to those applicable to the instant case. we believe

the vessel and its master, acting in accord with the

Delaware statute. lack the ability to control in the degree

necessary to create a miaster-servant relationship. This

result seems to us compelled by the shipowner's lack of any

choice or discretion in selecting a pilot and the extremely

limited circumstances under which an owner may direct

the pilot's activity on board the vessel. Though the Supreme

Court has recognized in dicta that “the word ‘employment’

should be construed so as to give protection to seamen for

torts committed against them by those Standing in the

proximate relation of employer, and the rules of private

agency should not be rigorously applied.” it also cautions

us that it would be wrong to “disregard the plain and

rational meaning of employment and employer to furnish a

seaman a cause of action against one completely outside

the broadest lines or definitions of employment or

employer.” Cosmopolitan Shipping. 337 U.S. at 790-91.

Accordingly, we hold that Evans has failed to demonstrate

the employment relationship with UASC that the Jones Act

requires to support his claim."

14. UASC has conceded the propriety of the orthopedic damages and.

therefore. we will affirm that award. It says:

if this court agrees that Evans is not a Jones Act seaman. then [sic]

district court's finding of aggravation should be reversed. and the

total darmages awarded for his orthopedic injuries affirmed...

Should the district court's finding as to Evans’ seaman status be

reversed, all other argument will be moot as the present appeals

IV.

In summary, we hold that Evans Jacks the requisite

employment relationship with the shipowner and is

therefore not entitled to maintain a Jones Act action

against it. The district court did not err in concluding

Evans failed to establish causation between the shipboard

accident and aggravation of his preexisting neurological

condition without the benefit of the Jones Act featherweight

standard of causation. Evans is entitled to recover for his

orthopedic injuries. an award of damages conceded by the

shipowner. We will therefore affirm the judgment and order

of the district court awarding Evans damages only for his

orthopedic injury. lost earnings. and pain and suffering

resulting therefrom.

flow from the court's ruling on Jones Act status. Evans and

shipowner do not raise any issue with damages for orthopedic

injuries, the only damages awarded.

Brief for Appellee/Cross-Appellant UASC at 4 (emphasis in original).

Thus. no remand on discussion concerning the propriety of those

damages is necessary.

ae

A-23

NYGAARD, Circuit Judge, dissenting.

The majority does not disturb the district onustt!s

conclusion that Evans is a Jones Act seaman, but

concludes that the court erred by finding that United Arab

“employed” Evans. ! dissent because I conclude that the

district court properly found Evans to be a seaman and

employed by United Arab. Thus, he is entitled to coverage

under the Jones Act.

By its express terms, the Jones Act provides remedies for

sea-based maritime workers and thus covers. only

“seamen.” The Jones Act does not define “seaman.” But the

Longshore and Harbor Workers’ Compensation Act

(LHWCA), 33 U.S.C. § 901 et seq.. which provides remedies

for land-based maritime workers. excludes from its

coverage “a master or member of a crew of any vessel.” This

term is a refinement of “seaman” in the Jones Act.

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337. 111 S.Ct.

807, 813 (1991). “Thus, it is odd but true that the key

requirement for Jones Act coverage now appears in another

statute.” Id.

Traditionally, the elements necessary to determine who is

a “seaman” have been “‘(a) that the ship be in navigation:

(b) that there be a more or less permanent connection with

the ship; and (c) that the worker be aboard primarily to aid

in navigation.’” Griffith v. Wheeling Pittsburgh Steel Corp..

521 F.2d 31, 36 (3d Cir. 1975), quoting Martin Norris, The

Law of Seaman § 668, at 301 (3d ed. 1970). The Supreme

Court has since eliminated the last requirement. holding

that it “is not necessary that a seaman aid in navigation or

contribute to the transportation of the vessel ....”

Wilander, 111 S.Ct. at 817.

Although it is undisputed that the M/V AL WATTYAH

was in navigation, the parties dispute whether Evans was

“more or less permanent[ly] connectied]” to the vessel. The

majority does not resolve this issue, believing it is unclear

how the “permanent connection” factor applies to a pilot.

who is not permanently connected to any vessel in the

temporal sense but who nonetheless performs the core

A-24

navigational functions of a seaman and unquestionably is

essential to the ship's mission. The confusion arises

because it is difficult to define the nature of the required

connection between the worker and the vessel: that is. does

a “permanent connection” mean a lasting temporal

relationship with the particular vessel. or something else?

In Mach v. Pennsylvania R.R. Co., 317 F.2d 761 (3d Cir.

1963). coal transported from barges under tow had to be

loaded onto railway cars. Because the barges were not self-

propelled. when a towing vessel released a barge. a

bargeman hired by the railway took control of it. “In brief.

all the handling and attending of barges. from the time a

tow boat releases its flotilla. through the unloading. until

the time when the empty barges are towed away, is done by

the bargeman.” Id. at 762-63. The issue was whether a

bargeman under these circumstances was a “seaman.” We

held he was, reasoning:

The work of causing a boat to move in navigable water

is the most fundamental and characteristic function of

a ship’s crew. From the release of loaded barges from

their tow until the departure of empty barges under

tow. all of the ship’s service which a barge required

was performed by bargemen who took the place of

whatever crew handled them during their journeys up

and down the river.

The duration of service for and upon a vessel may

determine whether shipboard work which is not

normally performed by a ship’s company makes the

worker a crewman. but lack of long continued

attachment to the vessel cannot, as a matter of law,

serve to deny seaman's status under the Jones Act to

an employee who is injured while assigned to and

performing normal crew service.

Id. at 763-64 (emphasis added).

In Griffith v. Wheeling Pittsburgh Steel Corp.. 521 F.2d 31

(3d Cir. 1975). we held that a worker who was temporarily

assigned to work on barges and whose only contact with

ships amounted to fewer than four of the seventy-four days

A-25

he had been employed, was not a seaman. In distinguishing

Mach, we opined that “the bargeman in Mach was

permanently assigned to work at the river landing where he

performed a substantial amount of his work time on the

barges. which duties involved significant navigational

functions, and who was injured while moving a loaded

barge.” Id. at 38. Thus, under Third Circuit law the

permanent connection factor is not a temporal relationship

with any particular ship. but is employment-related and

focuses instead on the nature of the worker's duties as they

relate to the ship and the ship's mission at the time of the

injury. Our case law is consistent with traditional maritime

law and the Jones Act.

The Supreme Court noted that traditional seamen’s

remedies have been universally recognized as growing out

of “‘the special hazards and disadvantages to which they

who go down to the sea in ships are subjected.’” Wilander.

111 S.Ct. at 817, quoting Seas Shipping Co. v. Sieracki, 328

U.S. 85, 104. 66 S.Ct. 872, 882 (1946) (Stone. C.J..

dissenting). “All who work at sea in the service of a ship

face those particular perils to which the protection of

maritime law. statutory as well as decisional. is directed.”

Id. Pilots. no less and perhaps more than any other

member of a crew, are subjected to the perils of the sea.

See Bach v. Trident Steamship Co., Inc., 920 F.2d 322. 330

(Sth Cir. 1991) (Brown, J., dissenting) (“Navigation in and

out of ports and harbors, and within restricted waters.

poses special hazards that are not presented when sailing

on the high seas.”). By enacting the LHWCA and the Jones

Act, Congress distinguished between land-based and sea-

based employment and provided remedies to those who are

a “master or member of a crew.” and thus facing the special

dangers of the sea. and to those who are not. Wilander. 111

S.Ct. at 817.

This distinction is the heart of the permanent connection

factor because the “key to seaman status is employment-

related connection to a vessel in navigation.” Id. Since “a

seaman must be doing the ship’s work.” that connection

shows that the worker is ~‘contributling] to the function of

the vessel or to the accomplishment of its mission’... .” Id.

quoting Offshore Co. v. Robison. 266 F.2d 769. 779 (5th

A-26

Cir. 1959). And. since such a job exposes the worker to the

particular hazards of the sea. there is no good reason why

he should not be covered by the protection of maritime law.

statutory as well as decisional. See The Arizona v. Anelich.,

298 U.S. 110. 123, 56 S.Ct. 707, 711-12 (1936) (Jones Act

protects seamen who are wards of admiralty and so must

be broadly construed to attain that end). Thus, failing to

show a lasting relationship between a worker and a

particular vessel does not change either the fact that one

doing a ship's work faces all the special dangers of sea-

based maritime employment. or that a seaman’s status

depends on the nature of the worker's duties as they relate

to the ship. See Pacific Merchant Shipping Ass'n v. Aubry.

918 F.2d 1409, 1412 (9th Cir. 1990) (“the term ‘seaman’

includes a broad range of marine workers whose work on a

vessel on navigable waters contributes to the functioning of

the vessel. to accomplishment of its mission. or to its

operation or welfare”). See also 46 U.S.C. §10101(3)

(“seaman” means an individual “engaged or employed in

any capacity on board a vessel”).

No one disputes that Evans was injured in the course of

successfully navigating the M/V AL WATTYAH. Evans v.

United Arab Shipping Co.. 767 F.Supp. 1284. 1285 (D.N.J.

1991). Because he contributed to the function of the vessel

and to the accomplishment of its mission. he was a

seaman; and merely because he was not connected to the

vessel in a long-term temporal sense cannot. as a matter of

law, take away his rights under the Jones Act. Mach. 317

F.2d at 763-64.

Il.

A plaintiff must also show an employment connection

with the defendant. Matute v. Lloyd Bermuda Lines, Ltd.

931 F.2d 231. 236 (3d Cir. 1991). After a bench trial. the

district court specifically found that United Arab “employed

Mr. Evans through the services of the Pilot's Association. an

organization of river pilots in the area.” Evans. 767 F.Supp.

at 1291 (emphasis added). The majority believes that the

court clearly erred in making this finding.

The question of whether a defendant is an employer for

the purposes of the Jones Act is normally a factual one

A-27

within the province of the fact-finder. Welsh v. Utah

Dredging Co., 403 F.2d 217 (3d Cir. 1968); Wheatley v.

Gladden, 660 F.2d 1024, 1026 (4th Cir. 1981); The

Norland, 101 F.2d 967, 973 (9th Cir. 1939). Thus. the fact-

finder’s determination should not be disturbed if there is a

rational evidentiary basis for its conclusion.

General rules of agency may help to determine if an

employment relationship exists. One must remember,

however, that the Jones Act is a remedial legislation

extending to seamen the rights accorded railway workers

under the Federal Employers’ Liability Act. 45 U.S.C. §51

et seq. It benefits and protects seamen who are peculiarly

the wards of admiralty, and so it must be liberally

construed to attain that end. The Arizona, 56 S.Ct. at 711-

12, citing Cortes v. Baltimore Insular Line, Inc., 287 U.S.

367, 375, 53 S.Ct. 173, 175 (1932); Jamison ov.

Encarnacion, 281 U.S. 635, 639, 50 S.Ct. 440 (1930); Alpha

S.S. Corp. v. Cain, 281 U.S. 642, 50 S.Ct. 443 (1930);

Wamer v. Goltra, 293 U.S. 155, 157, 55 S.Ct. 46 (1934).

“Congress intended that the purposes of [FELA and the

Jones Act] should not be restricted by common-law

concepts of control so as to bar from welfare legislation as

independent contractors persons who were as a matter of

economic reality a part of the processes and dependent

upon the businesses to which they rendered service.”

Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69

S.Ct. 1317, 1321 (1949). Thus, “the word ‘employment’

should be construed so as to give protection to seamen for

torts committed against them by those standing in the

proximate relation of employer. and the rules of private

agency should not be rigorously applied.” Id.. 69 S.Ct. at

1321. Rather, courts should construe “employment” in “the

broadest lines or definitions of employment or employer.”

Id.

With this in mind, | cannot agree with the majority's

conclusion that the district court erred by finding that

Evans was employed by United Arab. I conclude there is

sufficient evidence to support this finding. It is undisputed

that United Arab paid money for Evans’ services. Indeed.

Delaware law gives a pilot a cause of action for wages

against the shipowner. Del. Stat. Ann. tit. 23 § 121 (1987).

A-28

By the plain meaning of “employment.” Evans was engaged

in the services of United Arab.

Moreover, although control is said to be the most

important factor in determining whether the plaintiff is an

employee of the defendant, United States v. W. M. Webb,

Inc.. 397 U.S. 179. 90 S.Ct. 850, 856 (1970). it is not

significant in determining whether a pilot is an employee

because “a pilot. so far as respects the navigation of the

vessel in that part of the voyage which is his pilotage-

ground, is the temporary master charged with the safety of

the vessel and cargo. and of the lives of those on board.

and intrusted with the command of the crew.” Cooley v.

Board of Wardens, 53 U.S. 299, 316 (1851) (emphasis

added). There is no question that a master is covered under

the Jones Act. Warmer v. Goltra. 293 U.S. 155. 55 S.Ct. 46.

48 (1934). Thus, although a master, as the agent and

representative of the shipowner, controls the ship's crew. it

cannot be said that the shipowner controls the master in

the daily. nautical routines and functions of the ship. Nor

should one expect to conclude that a pilot. who is the only

person with specialized skills and knowledge necessary to

navigate ships in unfamiliar waters. is controlled in his

employment by the shipowner.

“The services of the pilot are as much for the benefit of

the vessel and cargo as those of the captain and crew. His

compensation comes from the same source as theirs. Like

them he serves the owner and is paid by the owner. If there

be any default on his part. the owner has the same

remedies against him as against other delinquents on

board. The difference between his relations and those of the

master is one rather of form than substance.” The China.

74 U.S. 53. 67 (1868).

I believe that the district court. as a trier-of-fact. did not

err when it found that Evans was “employed.” in either the

plain or liberal sense of that term. by United Arab.

Furthermore, even if. as the majority asserts. the district

court “appeared to confuse the in navigation prong of

seaman test [which requires an employment-related

connection to the vessel] with the additional requirement”

that there be an employment connection with the

defendant. I would not decide the issue as a matter of law

——

A-29

on appeal, but would remand for the district court to

consider the issue in the first instance. See Matute, 931

F.2d at 236 (in Jones Act cases “existence of an employer-

employee relationship is a question of fact”); Martin Norris.

The Law of Seamen. § 30:14 at 369 & nn. 70-71 (4th ed.

1985) (determination of whether an employment

relationship exists is a question of fact and should be left

for the trier-of-fact to decide) (collecting cases).

Il.

Because Evans is a Jones Act seaman 1nd was employed

by United Arab, he is entitled to coverage under the Jones

Act. He is thus entitled to the Jones Act's “featherweight”

causation standard, under which the district court

concluded that United Arab’s negligence aggravated his

preexisting neurological condition. It is then incumbent

upon United Arab, the proven tortfeasor, rather than

Evans, the innocent plaintiff. to show that damages can be

segregated.' Because the district court erroneously placed

this burden on Evans. I would reverse and remand for

further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Jor the Third Circuit

1.“[Wjhen a plaintiff has a preexisting condition that would inevitably

worsen ... tne burden of proof in such cases is upon the defendant to

prove the extent of the damages that the preexisting condition would

inevitably have caused.” Maurer v. United States, 668 F.2d 98 (2d Cir.

1981). See Restatement (Second) of Torts § 433B. comment d (1965) (“As

between the proved tortfeasor who has clearly caused some harm. and

the entirely innocent plaintiff. any hardship due to lack of evidence as to

the extent of the harm caused should fall upon the former.”).

A-30

WILLIAM W. EVANS,

Plaintiff,

Vv.

UNITED ARAB SHIPPING COMPANY (S.A.G.)

and M/V AL WATTYAH, her engines, boilers,

equipment, etc.,

Defendants.

Civ. No. 89-5246(SSB).

United States District Court,

D. New Jersey.

July 30, 1991.

FINDINGS OF FACT and

CONCLUSIONS OF LAW

BROTMAN, District Judge:

In reaching its findings of fact and conclusions of

law in this maritime suit for negligence, the court must

confront an issue explicitly left open by the Supreme

Court’s recent decision in McDermott Internation, Inc.

v. Wilander, __ U.S. , 111 S. Ct. 807, 112 L.Ed.2d

866 (1991): whether a river pilot who is not permanently

attached to a ship is a Jones Act seaman. Because the

court finds that a river pilot was a seaman under general

maritime law at the time Congress passed the Jones Act

in 1920, it concludes that this plaintiff is entitled to the

protection afforded by that Act.

EVANS v. UNITED ARAB SHIPPING CO.

Cite as 767 F.Supp. 1284 (D.N.J. 1991)

JURISDICTION

This is an admiralty and maritime claim by the

plaintiff for personal injuries against the defendant,

which is a sovereign owned shipping company. Jurisdic-

tion is based on 28 U.S.C. § 1333 and the Foreign

Sovereign Immunities Act, 28 U.S.C. § 1330. This court

held a nonjury bench trial on March 4-7, 1991.

A-31

FINDINGS OF FACT

1. Plaintiff, William W. Evans, was at all times

material to the events leading up to this suit licensed as

a first class pilot by the state of Delaware, Board of Pilot

Commissioners, and the United States Coast Guard and

was a member of the Pilot’s Association for the Bay and

River Delaware. Mr. Evans has performed his entire

career (over forty years) as a licensed pilot hired to steer

ships through the Delaware River and Bay and the

Chesapeake and Delaware (C & D) Canal.

2. Defendant, United Arab Shipping Company

(UASC), owns and operates the container freight M/V

AL WATTYAH. UASC is owned by the governments of

Saudi Arabia, Kuwait, Iraq, United Arab Emirates, Bah-

rain and Qatar. The M/V AL WATTYAH is a diesel-

powered vessel of 20,526 tons, 183.24 meters in length,

27.49 meters in beam and 10.015 meters in depth.

3. On the night of September 9-10, 1989, Mr. Evans

was on Call at the pilot station at Lewes, Delaware. At

approximately 1:00 a.m., he was called to pilot the M/V

AL WATTYAH toward the C & D Canal as far as

Chesapeake City, Maryland, where a Maryland pilot

would take over the helm. At approximately 2:00 a.m.,

Mr. Evans was taken by pilot to launch to the ship,

which was situated in the pilotage area between Cape

May and Cape Henlopen; he boarded the ship by pilot

ladder, also known as a Jacob’s ladder, which is a rope

ladder with wooden rungs. Mr. Evans experienced dif-

ficulty with the pilot ladder due to its poor condition. He

then assumed the “conn” of the vessel at approximately

2:30 a.m. and, without incident, piloted the ship toward

the Maryland border in clear and calm weather.

4. Upon approaching the point where the Maryland

pilot would be boarding, Mr. Evans requested the master

of the vessel to have the starboard side accommodation

ladder rigged to allow his disembarkation; plaintiff

wanted to avoid using the faulty pilot ladder. An accom-

modation ladder is used in calm waters on ships without

A-32

excessive freeboard. It is a staircase built of galvanized

steel or aluminum that is attached at its top to the main

deck of the vessel and is lowered by means of a winch to

within a few feet of the water’s surface. At the lower end

is a platform that can be adjusted, depending on the

height of the vessel’s freeboard and the ladder’s angle of

suspension, to remain parallel with the water’s surface.

This lower platform is fixed in position after adjustment

by means of a pin which passes through an intersecting

“sandwich” of metal bars and holds it rigidly in place.

The accommodation ladder is also equipped with

handrails that are designed to fold back along the

channels of the ladder by means of pivoting stanchions.

When the ladder is fully extended, the stanchions are

designed to pivot upright and then be secured with

chains or ropes.

5. The Maryland pilot was transported to the M/V AL

WATTYAH by the pilot launch at Chesapeake City,

which was driven by John Stringer. When the launch

was in position alongside the ship, the Maryland pilot

stepped from the foredeck of the launch directly on to

the lower-most rung of the accommodation ladder, step-

ping over the lower platform. Transcript of March 4 at

38-41 (testimony of Stringer).

6. Some minutes later, a seaman headed down the

accommodation ladder to deliver Mr. Evans’ briefcase

and to assist him in leaving the ship. As the seaman

stepped on the lower platform it pivoted on its axle and

dropped, causing the sailor to fall. The seaman was able

to hoist himself aboard the launch, then examined the

lower platform on hands and knees. According to

Stringer, he appeared to be reaching for something and

adjusting the underside of the lower platform. Tran-

script of March 4 at 42.

7. At this time, Mr. Evans appeared at the upper

platform of the accommodation ladder and saw that the

sailor was on his hands and knees adjusting the lower

platform. Mr. Evans asked the two officers who had

accompanied him to the ladder what the sailor was doing

A-33

and whether it was safe to use the ladder. Neither officer

responded with anything more than a shrug of the

shoulders. Evans Deposition at 87-88. Mr. Evans then

shouted down to the sailor, who by this time was on his

feet facing up the ladder with one hand on the ladder’s

handrail and the other on the launch’s bow rail. The

seaman made no gesture or sign to Mr. Evans other than

to make direct eye contact, which he understood as an

indication that the ladder was safe; he then began his

descent. On his way down he noticed a pile of rope in

disarray on the lower platform.

8. When Mr. Evans reached the lower-most rung of

the ladder with his left foot, he placed his right foot on to

the lower platform and released his hand from the

inboard handrail. He then began to swing his left leg

over to the deck of the launch but when he transferred

his weight to his right leg, the platform dropped, pivot-

ing on its axle. Mr. Evans then attempted to prevent

himself from falling between the ship and launch by

shifting his weight to the outboard handrail. This hand-

rail collapsed, however, and Mr. Evans’ body swung in a

270 degree turn. His tailbone (coccyx) hit the deck of

the launch and his face and left rib cage struck the

outboard channel of the accommodation ladder. Evans

Deposition at 46-53. The sailor then assisted Mr. Evans

on to the launch.

9. Plaintiffs version of this event was unrebutted at

trial and was corroborated in significant detail by Mr.

Stringer, the launch driver, who witnessed the entire

incident. Although he did not actually see the platform

collapse, both times he heard a “clang” sound and he

saw Mr. Evans fall. March 4 Transcript at 43-45. When

Mr. Evans entered the launch’s cabin, Mr. Stringer said,

“The same exact thing happened to that crewman.”

Evans Deposition at 54. He also observed that Mr. Evans

appeared visibly shaken and pale, and did not assist, as

was his custom, with the handling of mooring lines upon

reaching the dock. Transcript of March 3 at 45-46. Mr.

EE

A-34

Evans took a taxicab to his car, then drove himself home

and went to sleep.

10. Mr. Evans was experiencing pain in his nose,

ribs and tailbone. When he arose the morning of Sep-

tember 11, he blew his nose and “blood just gushed

out.” Evans Deposition at 63. He immediately contacted

his family physician, Dr. Bell, who had x-rays taken of

his spine, ribs and nose. The x-rays revealed that Mr.

Evans had suffered a fractured nose; plaintiff claims

that he also suffered a fractured coccyx and a possible

fractured rib but was unable to present any corroborat-

ing evidence to that effect.

11. Mr. Evans was on medical leave from his pilot-

ing duties for an extended period of time. There was

some factual dispute at trial as to the amount of time that

passed before Mr. Evans was able to recover sufficiently

from his orthopedic injuries to return to work. The Pilot

Association’s logbook indicates that Mr. Evans next

piloted a ship on October 26, 42 days after the accident

on the M/V AL WATTYAH. However, Mr. Evans had to

wait several days between the time he informed the

dispatcher that he has available for work and his first

assignment. March 6 Transcript at 31-32. Therefore, the

court concludes, Mr. Evans’ orthopedic injuries caused

him to miss 38 days of work.

12. Within one or two days after the September 10

accident, Mr. Evans and his wife each noticed for the

first time a distinct slurring of his speech and a pro-

nounced weakness or lack of balance in his gait. He

immediately sought medical attention for these symp-

toms and was referred to a specialist in neurology.

Unfortunately, however, Mr. Evans’ speech and balance

problems increased to such an extent that, when he

returned to piloting on October 26, numerous com-

plaints were registered about the hazards presented by

his condition. At the request of the Association’s presi-

dent and upon the advice of his doctors, Mr. Evans took

a medical leave of absence beginning November 10,

1989. In June, 1990, he was unable to pass the physical

A-35

exam he needed to renew his state pilot’s license, which

expired on September 1, 1990. He has not piloted a boat

since November 10, 1989.

Since the first symptoms of plaintiffs neurological

condition appeared, there has been a steady deteriora-

tion in his ability to speak and walk. Mr. Evans has fallen

several times, fracturing his hip and wrist, and is ex-

pected to be wheelchairbound shortly. At trial, Mr.

Evans walked with the assistance of a walker and his

speech was dramatically slurred. His doctors predict that

he will die within one or two years; however, if he elects

to use artificial respiratory and nutritional devices, and

with the assistance of 24-hour residential nursing care,

he could prolong his life another year or two beyond that

time.

13. A professional associate of the plaintiff, pilot

George Mcintire, was with him for a full week in early

July, 1989 at a ship handling school in Grenoble,

France. According to Mcintire, who was with him dur-

ing that entire week, plaintiff appeared healthy and

vigorous at all times; they took long walks together each

evening and he participated fully in the school’s curric-

ulum. No signs of any neurological problems were

evident.

14. Dr. Cook, Mr. Evans’ medical expert in neurol-

ogy and treating neurologist, noted on January 16, 1990

that “prefall,” z.e., before the September 10 accident on

the AL WATTYAH, plaintiff said his legs were tired and

his balance was off. March 5 Transcript at 32-33. Dr.

Bhatt, plaintiffs other treating neurologist, similarly

testified that at plaintiffs examination on October 4,

1989, he had complained of difficulty walking and with

balance “for the last few months.” March 7 Transcript at

24.

15. No doctor has been able to provide a definitive

diagnosis of Mr. Evans’ neurological condition. Dr. Cook

described it as an unusual genus of motor neuron

disease that resembles amyotrophic lateral sclerosis

(ALS), also known as Lou Gehrig’s disease. He also

A-36

testified that Mr. Evans’ disease probably pre-existed the

fall but laid dormant. Defendant’s medical expert, Dr.

Duvoisin, submitted a pretrial report stating that plain-

tiffs symptoms resembled olivopontocerebellar atrophy

and Parkinsonism, and ultimately described it as a

chronic progressive diffuse neurodegenerative disorder.

Defendant’s Exhibit 1B. At trial, Dr. Duvoisin said that

plaintiff probably had a nerve degeneration problem

similar to ALS.

16. The state of medical knowledge as to the causa-

tion of motor neuron disease like that present in Mr.

Evans is similarly imprecise. Dr. Cook stated outright

that “[w]e don’t really know what causes motor neuron

disease or ALS.” March 5 Transcript at 18. Dr. Cook

testified that there is anecdotal evidence in the medical

literature that trauma is a causative factor of the disease.

It was his opinion that it was “likely” or “possible” that

plaintiff's pre-existent motor disease was aggravated by

the traumatic event on September 10. However, he

could not say that it was “probable.”

Dr. Duvoisin categorically ruled out trauma as play-

ing any causative role in plaintiffs neurological prob-

lems. March 7 Transcript at 34-35. Dr. Duvoisin de-

scribed his research as exclusively directed toward

finding a genetic link to the disease. Om cross-

examination, he was presented with four research arti-

cles listing trauma as one possible cause of the disease

but dismissed them as not convincing. Ultimately, he

conceded that he would not conclusively rule trauma out

as a causative factor, though he considered it so improb-

able as to be “philosophically meaningless.” March 7

Transcript at 42.

A-37

CONCLUSIONS OF LAW

A. Evans’ Status as a Jones Act Seaman

The threshold question before the court is whether

Mr. Evans, as a river pilot, is a “seaman” and therefore

entitled to the protection of the Merchant Marine Act of

1920, otherwise known as the Jones Act, 46 U.S.C.App.

$ 688. As we shall see, the answer is “of paramount

importance” to the outcome of plaintiff's case, since “the

seaman’s remedies are far more favorable than those

available to other maritime workers.” Robertson, A New

Approach to Determining Seaman Status, 64 Tex.

L.Rev. 79, 83 (1985).

Defendant argues that plaintiff cannot possibly meet

the traditional common law requirement that a Jones

Act seaman be permanently assigned to defendant’s

vessel or perform a substantial amount of his work

aboard it. See Bach v. Trident Steamship Co., 920 F.2d

322 (Sth Cir.1991) (river pilot is not a Jones Act seaman

because not permanently attached to a vessel or fleet of

vessels); King v. Universal Electric Construction Co.,

799 F.2d 1073 (Sth Cir.1986). This court’s reading of

the cases supporting defendant’s argument would com-

pel it to agree. See, e.g., Griffith v. Wheeling Pittsburgh

Steel Corp., 521 F.2d 31 (3d Cir.1975), cert. denied, 423

U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976); Clark v.

Solomon Navigation, Ltd. 631 F.Supp. 1275

(S.D.N.Y.1986). Plaintiff argues that the Supreme

Court’s recent decision in McDermott leads to the inev-

itable conclusion that the “permanent attachment” ele-

ment of seaman status is no longer required; it is enough

that plaintiff was employed to assist in the performance

of the vessel’s functions. In addition, the court notes that

reliance on the Fifth Circuit’s decision in Bach would be

dangerous in light of the Supreme Court’s recent deci-

sion to remand Bach “for further consideration in light of

McDermott.” ___ U.S. ___ , 111 S.Ct. 2253, 114 L.Ed.2d

706 (1991).

A-38

The ccurt’s inquiry, of course, must begin with the

Supreme Court’s unanimous decision in McDermott,

— U.S. , 111 S.Ct. 807, 112 L.Ed.2d 866 (1991).:

The question before the Court on that occasion was

whether a paint foreman, who did not aid in a ship’s

navigation, nevertheless qualified as a seaman under the

Jones Act. The Court answered this question in the

affirmative by jettisoning the aid in navigation require-

ment. Since the Jones Act does not define who a seaman

is,? the Court assumed that Congress intended to use

the term in the same way that other admiralty courts had

used it. Jd. at 811. The Court’s first task, therefore, was

to determine who was a seaman under the general

maritime law when Congress passed the Jones Act. Jd.

The Court then conducted an in-depth analysis of

the historical bases of the maritime worker’s negligence

Suit against the ship’s owner and found that a great

variety of shipworkers were considered seamen at the

1. As the Supreme Court acknowledged in McDermott, its

precedents in this area “led the lower courts to a ‘myriad of

standards and lack of uniformity in administering the elements of

seamen status.’” /d., 111 S.Ct. at 816, quoting Engerrand & Bale,

Seaman Status Reconsidered, 24 S.Tex.L.J. 431, 494 (1983).

2. The only definition of “seaman” provided by Congress is

found at 46 U.S.C. § 10101, which states: (3) “seaman means an

individual (except scientific personnel, a sailing school instructor or

a Sailing studen.) engaged or employed in any capacity on board a

vessel.” This provision was enacted in 1983 as part of Congress’

effort “to revise, consolidate and enact certain laws related to vessels

and seaman as subtitle II of title 46, United States Code.” H.R.Rep.

No. 338, 98th Cong., Ist Sess. 1, reprinted in 1983 U.S.Code Cong.

& Admin. News 924, 924. The definition of seaman is found at “Part

G—Merchant Seaman Protection and Relief” and the legislative

history indicates merely that “Section 10101 defines the terms

master, searman, and owner as they apply to merchant seamen’s

protection and relief.” H.R.Rep. No. 338, 1983 Code Cong. &

Admin. News at 1004. This definition, however, had its genesis in

Act of Dec. 21, 1898. c. 28 §§ 23, 26, R.S. § 4612 (30 Stat. 762, 764)

and was derived from Act of June 7, 1872, c. 322, § 65, 17 Stat. 277.

The court notes that this definition contains no requirement that

a seaman have a permanent connection to a vessel.

A-39

time the Jones Act was passed. The Court, however,

gave only limited guidance on the applicability of other

common law requirements of seaman status, stating:

The key to seaman status is employment-related

connection to a vessel in navigation. We are not

called upon here to define this connection in all

details, but we hold that a necessary element of the

connection is that a seaman perform the work of a

vessel. See Maryland Casualty Co. v. Lawson, 94

F.2d 190, 192 (CAS 1938) (“There is implied a

definite and permanent connection with the vessel,

an obligation to forward her enterprise”), cited ap-

provingly in Norton, |v. Warner Co.] 321 U.S. [565]

at 573, 64 S.Ct. [747] at 751 [88 L.Ed. 931 (1944)].

In this regard, we believe the requirement that an

employee’s duties must “contribut[e] to the function

of the vessel or to the accomplishment of its mis-

sion” captures well an important requirement of

seaman Status.

Id. at 817.

This court, therefore, must fill in the gap left by

McDermott and reach the appropriate definition of sea-

man as applied to a river pilot who has no permanent

connection to any one ship yet whose only duties place

him at the most important post on the ship—the ship’s

helm. It does so, however, not without guidance. As

explained above, the Court instructed lower courts to

determine who is a seaman by examining general mar-

itime law at the time Congress passed the Jones Act. Jd.

at 811.

In fact, the McDermott decision itself answers the

question whether a river pilot was a seaman under

general maritime law in 1920. Although endeavoring to

determine the propriety of the “aid in navigation” test,

the Court noted that pilots were considered seamen as

early as 1832, when Justice Story wrote: “A cook and

steward are seamen in the sense of the maritime law,

although they have peculiar duties assigned them. So a

pilot, a surgeon, a ship-carpenter, and a boatswain, are

A-40

deemed seamen, entitled to sue in admiralty.” Jd., quot-

ing United States v. Thompson, 28 F.Cas. 102 (No.

16,492) (CCD Mass.1832) (emphasis supplied). The

McDermott Court also observed that “[b]y the middle of

the 19th century, the leading admiralty treatise noted

the wide variety of those eligible for seamen’s benefits:

“Master, mates, sailors .. . pilots . . . women as well as

men,—are mariners.’ ” Jd., quoting E. Benedict, The

American Admiralty § 278, p. 158 (1850).

This court’s own research lends further support to

this conclusion. In a series of cases concerning the

States’ power to regulate pilots and pilotage in ports and

harbors, the Supreme Court wrote of this class of

mariners that they were as much a part of the commer-

cial marine as the hull of the ship and the helm by which

it is guided . . . Pilots are a meritorious class, and the

service in which they are engaged is one of great

importance to the public. It is frequently full of hardship,

and sometimes of peril; night and day, in winter and

summer, in tempest and calm, they must be present at

their proper places and ready to perform the duties of

their vocation.

Ex parte McNiel, 80 U.S. (13 Wall.) 236, 237-38, 20

L.Ed. 624 (1871). In The China, the Supreme Court

noted that statutes requiring ships to hire pilots were

beneficial “by providing a body of trained and skillful

seamen, at all times ready for the service, holding out to

them sufficient inducements ... to pursue a business

attended with so much of peril and hardship.” 74 U.S. (7

Wall.) 53, 67, 19 L.Ed. 67 (1868). See also The Alameda

v. Neal, 32 F. 331 (CC NDCal 1887) (object of pilotage

fees “was to create a body of hardy and skillful seaman,

thoroughly acquainted with the harbor, to pilot vessels

seeking to enter or depart from the port”), In another

case, the Supreme Court observed no significant differ-

ence between pilots who accompany a ship on a voyage

and those local or port pilots “whose employment lasts

but a few hours, and who have no connection with any

vessel except to bring into or take it out of port. The term

A-41

pilots is equally applicable to [both] classes of persons.

... Steamship Company v. Joliffe, 69 U.S. (2 Wall.)

450, 461-62, 17 L.Ed. 805 (1864).

Lower courts that were faced with deciding whether

pilots were protected under the general maritime law

came to the same conclusion. Thus, in The Mary

Elizabeth, the Circuit Court in the Southern District of

Alabama, declared that “[a] pilot, being a person em-

ployed in the navigation of a vessel, is deemed a seaman,

and his claim for wages is within the admiralty jurisdic-

tion.” 24 F. 397 (CC SDAla 1885). And in Wilson v. The

Ohio, the court held that a pilot on a steamboat navigat-

ing the river Delaware is entitled to sue in admiralty for

his wages. 30 F.Cas. 149, 150 (Case No. 17, 825)

(E.D.Pa.1834). Finally, in yet another case from this

Circuit, the court assumed that a pilot of a steam vessel,

who is a licensed and sworn officer, is a seaman. The

Lud Keefer, Werling v. The Lud Keefer, 51 F. 44 (3d Cir.

1892).

This court, as did the Supreme Court in McDermott,

must also consider the importance of the Longshore and

Harbor Workers’ Compensation Act (LHWCA), 44 Stat.

(part 2) 1424, as amended, 33 U.S.C. §§ 901-950 in

defining a Jones Act seaman. As the Court wrote:

The LHWCA provides relief for land-based maritime

workers, and the Jones Act is restricted to “a master

or member of a crew of the vessel” . . . [which] is a

refinement of the term “seaman” in the Jones Act; it

excludes from LHWCA coverage those properly

covered under the Jones Act. Thus it is odd but true

that the key requirement for Jones Act coverage now

appears in another statute.

McDermott, 111 S.Ct. at 813. Thus, the term “master or

member of a crew,” which is used in the LHWCA to

exclude coverage, is identical to the term “seaman” for

Jones Act purposes. According to the Court, both terms

refer to “a sea-based maritime employee.” Jd. at 814.

A-42

[1] In 1927, shortly after its passage, the federal

agency charged with enforcing the LHWCA issued a

definitive ruling that a river pilot is a master or member

of a crew and, therefore, excluded from LHWCA cover-

age. Longshoremen’s Act, Opinion #22, 1928 AMC 263

(U.S. Employee’s Comp.Comm.1927). The Commis-

sion, after examining various court pronouncements on

the duties of pilots, concluded that “the pilot merely

takes over for the time being some of the duties pertain-

ing to navigation which devolve upon the master.” Jd. at

264. Significantly for this case, the Commission placed a

river pilot within the class of master or member of the

crew despite his temporary attachment to the vessel.

This court must accord substantial weight to the Com-

mission’s conclusion, for the Supreme Court has held

that its findings, if there is evidence to support them, are

“conclusive.” South Chicago Coal & Dock Co. v. Bassett,

309 U.S. 251, 257-58, 60 S.Ct. 544, 547-48, 84 L.Ed.

732 (1940). This court’s own conclusion must be that a

river pilot is a master or member of a crew and, there-

fore, is a Jones Act seaman.

Notably, Judge Brown reached the same conclusion

in his powerful and persuasive dissent in Bach v. Tri-

dent, 920 F.2d at 327-33. Quoting from the ancient

admiralty codes, pointing out the broad sweep of Su-

preme Court precedent and citing congressional activity

in this area, Judge Brown recognized that the safe

conduct of a vessel’s mission could not be accomplished

without the pilot; he is “indispensable.” “The vessel may

not operate without him/her. That pilot is in supreme

command of the basic function of the vessel—to navi-

gate in maritime commerce. That person is a seaman or

he/she is nothing.” Jd. at 333. This court believes that

the Supreme Court would also so find.

From this legal conclusion, the court must deter-

mine if this plaintiff is a seaman. As the Supreme Court

noted in McDermott, this question is best characterized

as a mixed question of law and fact. 111 S.Ct. at 818.

Since this court sits as the factfinder in this nonjury

A-43

case, it must find the facts and apply the legal standard

to those facts.

It is undisputed that Mr. Evans’ entire career was

spent as a river pilot and that on the morning of

September 10, 1989, he was acting in that capacity

aboard the M/V AL WATTYAH when the accident

occurred. The ship’s owner employed Mr. Evans

through the services of the Pilot’s Association, an orga-

nization of river pilots in the area. Therefore, he had that

“employment-related connection” essential to determin-

ing seaman status. It is also undisputed that Mr. Evans’

work on the M/V AL WATTYAH contributed to the

function and mission of the ship. It can fairly be said that

plaintiffs job required him to confront the perils and

hazards of the sea that any other member of the ship’s

crew faces on a daily basis. Mr. Evans, therefore, is

entitled to the protection of the Jones Act.

B. Negligence and Causation

Under the Jones Act, the employer, by its officers

and crew, owes the plaintiff the obligation to exercise

ordinary reasonable care for his safety. “A ship must

provide a safe place to work to a seaman, or one who

performs tasks traditionally performed by a ship’s crew;

that duty encompasses a reasonably safe means of

boarding, and departing from the vessel, and failure to

discharge it constitutes negligence.” Southard v. Inde-

pendent Towing Co., 453 F.2d 1115, 1118 (3d Cir.1971).

A seaman may also recover for his injuries caused by any

defect or insufficiency in equipment due to the ship

owner's negligence. 46 U.S.C. § 688, incorporating by

reference 45 U.S.C. § 51 (the Federal Employers’ Lia-

bility Act (FELA)). The Supreme Court has instructed

the lower courts to interpret the term liberally “so as to

include all the meanings given to it in the light of the

peculiar hazards of the seafaring profession.” Norris,

The Law of Seaman § 690, p. 374-75 (1970); see also

Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352 (Sth

A-44

Cir.1988), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102

L.Ed.2d 533 (“[e]vidence of the ‘slightest’ negligence is

sufficient”).

[2] If the duty owed to the seaman is breached,

plaintiff must show only that the breach “ ‘played any

part, even the slightest, in producing the injury or death

for which damages are sought.’” Ferguson v. Moore-

McCormack Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 458,

1 L.Ed.2d 511 (1957) (Jones Act case), quoting Rogers

v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1

L.Ed.2d 493 (1957) (FELA case); Smith v. Trans-World

Drilling Co., 772 F.2d 157, 162 (5th Cir.1985) (“Jones

Act negligence is a legally sufficient cause of injury if it

played any part, no matter how small, in bringing about

the injury”); Southard, 453 F.2d at 1118. The Fifth

Circuit has described this standard of causation as

“featherweight.” Smith, supra; Gilmore and Black, The

Law of Admiralty (2d ed.) at 377.

The liberal standards of negligence and legal causa-

tion fashioned by the courts in Jones Act and FELA

cases are equally applicable where testimony from med-

ical experts fails to establish anything like a definitive

answer on the question of what caused plaintiff's injury.

In the leading case on this issue, Sentilles v. Inter-

Caribbean Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d

142 (1959), the Supreme Court examined the case of a

seaman suing under the Jones Act. The seaman had

been thrown some distance when the ship pitched in

heavy seas. Shortly after the accident, he became very ill

and was treated for a serious case of tuberculosis. At

trial, plaintiff sought to prove that the accident activated

or aggravated a previously latent tubercular condition,

though no medical expert could say that the accident in

fact caused plaintiff's condition. The Supreme Court

affirmed the jury’s finding of liability, stating:

The Jury’s power to draw the inference that the

aggravation of petitioner’s tubercular condition, ev-

ident so shortly after the accident, was in fact

A-45

caused by that accident, was not impaired by the

failure of any medical witness to testify that it was in

fact the cause. Neither can it be impaired by the lack

of medical unanimity as to the respective likelihood

of the potential causes of the aggravation, or by the

fact that other potential causes of the aggravation

existed and were not conclusively negated by the

proofs. The matter does not turn on the use of a

particular form of words by the physicians in giving

their testimony. The members of the jury, not the

medical witnesses, were sworn to make a legal

determination of the question of causation. They

were entitled to take all the circumstances, includ-

ing the medical testimony, into consideration.

Id. at 109-10, 80 S.Ct. at 175-76 (footnote omitted). The

Court also noted the general reluctance among experts

to state that trauma was the cause of a disease. Jd. at 109

n. 2, 80 S.Ct.; at 175 n. 2

The Third Circuit has just recently reiterated that

the concept of causation in FELA, and thus Jones Act,

cases is “broadly interpreted.” Hines v. Consolidated

Rail Corp., 926 F.2d 262, 268 (3d Cir.1991). In revers-

ing the lower court’s grant of summary judgment in

favor of the employer, the Third Circuit compared its

holding in Jn re Paoli Railroad Yard PCB Litigation, 916

F.2d 829 (3d Cir.1990), cert. denied, General Electric

Co. v. Knight, __ U.S. __, 111 S.Ct. 1584, 113 L.Ed.2d

649 (1991), that medical experts must state their opin-

ions with “reasonable medical certainty,” to the more

liberal view expressed in Sentilles. Hines held that “a

medical expert can testify that there was more than one

potential cause of a plaintiff's condition.” Jd. The court

then reaffirmed the Supreme Court’s holding in Sen-

tilles allowing the jury to draw causal inferences based

on varying and inconclusive medical testimony.

[3] Looking at all the evidence presented at trial, the

court finds that defendant was negligent in failing to

ensure that the accommodation ladder was reasonably

A-46

safe for pilot Evan’s egress from the ship. Plaintiff's

expert in marine surveying, William J. Campbell, stated

that it is the responsibility of the officer on the ship to

keep the accommodation ladder rigged properly. A prop-

erly rigged ladder would have a pin with a lanyard

attached, which would be inserted at the lower platform

in such a way as to lock it into position. March 4

Transcript at 69-73. The seaman’s earlier fall from the

platform followed by plaintiffs fall made it apparent to

this court’s satisfaction that the pin was not inserted

properly at either point in time. In addition, the handrail

on the outboard side of the ladder was defective in that

a stanchion was missing, causing it to collapse when

plaintiff put his weight on it. Another example of defen-

dant’s negligence is the officer’s failure to respond to

plaintiff's inquiry about the ladder and to investigate the

situation further. It was these acts of defendants negli-

gence that caused Mr. Evans to fall and hit the launch.

[4] As to plaintiffs orthopedic injuries, the court

finds that defendant’s negligent failure to rig properly

the accommodation ladder caused Mr. Evans’ immedi-

ate injuries: his fractured nose and bruised ribs and

coccyx. As to plaintiffs neurological injuries, the court

acknowledges that it is a close and difficult question. If

this were not a Jones Act case with its attendant

“featherweight” standard for proving causation, then

this court would find that defendant’s negligence did not

proximately cause or aggravate plaintiffs neurological

injuries. However, this court is bound to apply the law as

it now stands.

As an initial matter, the court finds that plaintiff's

fall from the ladder did not cause Mr. Evans’ motor

neuron disease. Testimony from both Dr. Bhatt and Dr.

Cook revealed that plaintiff had complained of some

tiredness in his legs and balance problems before the

accident. The real question is whether the fall aggra-

vated or accelerated a pre-existing but almost completely

latent motor neuron dysfunction. Testimony from the

medical experts, both fully qualified in the field of

—EEE ee

A-47

neurology, indicated that there are several potential

causes of the type of motor neuron disease from which

Mr. Evans suffers. Plaintiffs expert, Dr. Cook, opined

that the trauma of the fall “possibly” caused the aggra-

vation of plaintiffs condition, but the etiology of the

disease is still not known for certain. Dr. Duvoisin,

defendant’s expert, dismissed trauma as a possible cause

though he did acknowledge that there are researchers in

this field who claim that trauma may cause motor

neuron disease. From this evidence, the court is left in a

grey zone between “maybe” and “probably not.” In that

situation, the court is inclined to lean more heavily than

it would otherwise on the circumstantial evidence in the

case as well as general common sense.

The circumstantial evidence was sufficiently proba-

tive that the court feels it is reasonable to infer that the

manner in which plaintiff fell from the ladder aggra-

vated his neurological symptomology. For example, be-

fore the accident, plaintiff was not experiencing any

great difficulty in his neurological functions and re-

ceived no complaints of his performance on the job; one

witness observed absolutely no indications of any prob-

lem as recently as seven or eight weeks before the fall.

When plaintiff fell from the ladder, the full weight of

plaintiffs body struck the gunnel of the launch at the

base of his spine; in addition, plaintiff struck his face on

the ladder with such force as to break his nose. Mr.

Evans was obviously traumatized by the event — the

pilot of the launch said he looked visibly shaken and

pale. Significantly, plaintiff and his wife noticed a dis-

tinct change in his ability to speak and walk just one or

two days after the accident. Numerous complaints about

plaintiffs ability to speak and walk on the job just six

weeks after the accident are telling evidence that plain-

tiffs condition deteriorated substantially in a very short

span of time. From all this evidence, plus the fact that

medical science has not reached a point where it can

rule trauma out as a possible cause of motor neuron

A-48

disease, the court concludes that defendant’s negligence

played a part in aggravating plaintiff's neurological con-

dition.

C. Damages

The general rule for measuring damages due to the

tortious conduct by a seaman’s employer was set forth by

this Circuit in Downie v. United States Line Co., 359

F.2d 344, 347-48 (3d Cir.) (in banc), cert. denied, 385

U.S. 897, 87 S.Ct. 201, 17 L.Ed.2d 130 (1966), and

reiterated in Pfeifer v. Jones & Laughlin Steel Corp., 678

F.2d 453 (3d Cir.1982). There, the court said the

plaintiff is entitled to an award of damages commensu-

rate with the nature and extent of his injuries.

He is entitled to reimbursement for his loss of

earnings, past and prospective; for any impairment

of his earning capacity; for medical expenses in-

curred and to be incurred; and for any other eco-

nomic loss he may have sustained or is likely to

sustain. He is also entitled to redress for his physical

injury, including the effects thereof, such as pain,

suffering, mental anguish; discomfort, and incon-

venience. If the injuries are permanent . . . he may

recover . . . his probable loss of future

earnings. . . . The injured worker is also entitled

to compensation, again based on life expectancy at

the time of injury, for the physical and mental

effects of the injury on his ability to engage those

activities which normally contribute to the enjoy-

ment of life... .

Pfeifer, 678 F.2d at 460.

[5] In cases like this one, in which an employer’s

negligence aggravated a pre-existing condition, courts

have held that the defendant must compensate plaintiff

only for the aggravation itself and not for the pre-

existing condition. “The court has only allowed damages

for the increased and augmented suffering and disability

which was the proximate result of defendant’s act.”

Scarberry v. Ohio River Co., 217 F.Supp. 189, 193

(S.D.W.Va.1963); Thompson v. Coastal Oil Co., 119

A-49

F.Supp. 838, 845 (D.N.J.1954) (symptoms of brain

damage considered only to the extent that unseaworthy

condition aggravated them), revd on other gds., 221

F.2d 559 (3d Cir.1955), rev'd, 352 U.S. 862, 77 S.Ct. 90,

1 L.Ed.2d 73 (1956); Benedict on Admiralty § 32 at

3-284, 3-285 (1989). Contra Milos v. Sea-Land Serv.,

Inc., 478 F.Supp 1019 (S.D.N.Y.1979); Pedersen v.

Diesel Tankers, Ira S. Bushey, Inc., 280 F.Supp. 421

(S.D.N.Y.1967). Where plaintiff would have experi-

enced the symptoms of his pre-existing condition at

some time in the future even if he had not fallen, he can

only recover that portion of his damages caused by the

aggravating event, and not all damages associated with

the pre-existing condition.

{6] After a close review of the record at trial, the

court is unable to make an award of damages that would

not be completely speculative. The evidence on medical

costs, for example, other than for plaintiffs orthopedic

injuries, posited recovery of the entire amount necessary

until Mr. Evan’s death—approximately four years of

acute therapy, at-home nursing care and home modifi-

cations calculated at over $1.8 million. Another problem

is that plaintiffs medical experts did not say precisely

how his condition was aggravated by the fall, making it

impossible for the court to exercise its own judgment

about the appropriate measure of the aggravation. Spe-

cifically, the court would want to know approximately

when the disease would have rendered plaintiff unable

to function normally but for the fall.

So that it may exercise its function properly, the

court has determined that it is necessary to open the

record so that evidence may be heard on how to measure

damages for the aggravation of Mr. Evans’ condition.

The court is not interested in a repeat of what has

already been offered in evidence. Rather, it expects a

sufficiently detailed estimate of the increase in plaintiff's

suffering, disability and wage loss due to the aggravation

of his disease. The parties are hereby directed to Submit

briefs on this issue, based on admissable evidence.

A-50

Submissions shall be delivered to chambers no later

than Friday, August 23. If settlement does not occur,

and if a hearing is necessary, the court will schedule one

accordingly.

ORDER

This admiralty suit having come before the court on

a bench trial conducted on March 4-7, 1991; and

The court having considered all the submissions of

the parties and the evidence introduced at trial, and for

the reasons set forth in its Findings of Facts and

Conclusions of Law entered this same date; and

For good cause shown;

IT IS this 30th day of July, 1991 hereby

ORDERED that defendant United Arab Shipping

Company is adjudged liable for the negligent conduct of

its employees aboard the M/V AL WATTYAH on Sep-

tember 10, 1989 that caused plaintiffs injuries. It is

further

ORDERED that the court shall open the record to

consider evidence on how to measure the damages for

the aggravation of plaintiff's pre-existing neurological

condition. Briefs shall be filed with the court no later

than Friday, August 23 in accordance with the court’s

opinion of this date. A hearing, if necessary, will be

scheduled accordingly.

CC

A-51

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 92-5300, 92-5301, 92-5534 & 92-5535

WILLIAM W. EVANS,

Appellant at Nos. 92-5300 & 92-5534

Vv.

UNITED ARAB SHIPPING COMPANY S.A.G.;

M/V AL WATTYAH, her engines, boilers, equipment, etc.

UNITED ARAB SHIPPING COMPANY S.A.G..

Appellant at Nos. 92-5301 & 92-5535

Appeal from the United States District Court

for the District of New Jersey

(D.C. Divil Docket No. 89-05246)

Present: Hutchinson, Nygaard and Seitz, Circuit Judges

JUDGMENT

This cause came to be heard on the record from the

United States District Court for the District of New

Jersey and was argued by counsel on February 22, 1993.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court entered May 4, 1992 as amended by order

entered August 26, 1992, be, and the same is hereby

affirmed with respect to the award to William W. Evans

of damages only for his orthopedic injury, lost earning,

and pain and suffering resulting therefrom. Costs taxed

against appellants in each appeal. All of the above in

accordance with the opinion of this Court.

ATTEST:

‘4, L myles S-+4

Clerk

Dated August 13, 1993

A-52

Page 2

Costs taxed in favor of United Arab Shipping Company

as follows:

TOTAL COSTS

Certified as a true copy and issued in lieu

of a formal mandate on September 30, 1993.

Teste: LK (ly Lo oe.

O

Clerk, U.S. Court of Appeals for the Third Circuit.

A-53

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 92-5300, 92-5301, 92-5534 & 92-5535

WILLIAM W. EVANS,

Appellant at Nos. 92-5300 & 92-5534

V.

UNITED ARAB SHIPPING COMPANY S.A.G.;

M/V AL WATTYAH, her engines, boilers, equipment, etc.

UNITED ARAB SHIPPING COMPANY S.A.G.,

Appellant at Nos. 92-5301 & 92-5535

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Docket No. 89-05246)

SUR PETITION FOR REHEARING

PRESENT: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREEN-

BERG, HUTCHINSON, SCIRICA, CO-

WEN, NYGAARD, ALITO, ROTH, LEWIS

and SETIZ,* Circuit Judges

The petition for rehearing filed by appellant William

W. Evans in the above captioned matter having been

submitted to the judges who participated in the decision

of this court and to all the other available circuit judges

of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

* Hon. Collins J. Seitz was limited to voting for panel rehearing.

A-54

and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by

the court in banc, the petition for rehearing is denied.

By the Court,

s/ WILLIAM D. HUTCHINSON

Circuit Judge

DATED: September 22, 1993

A-55

Jones Act

46 U.S.C. app. § 688(a)

§ 688. Recovery for injury to or death of seaman

(a) Application of railway employee statutes; ju-

risdiction. 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 peronal injury to railway employees

shall apply; and in case of death of any seaman as a

result of any such personal injury the personal repre-

sentative 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 empleyer resides or in which his

principal office is located.

Longshore and Harbor Workers’ Compensation Act

33 U.S.C. §§ 902, 903, 905

§ 902. Definitions

When used in this Act—

(1) The term “person” means individual, partner-

ship, corporation, or association.

(2) The term “injury” means accidental injury or

death arising out of and in the course of employment,

and such occupational disease or infection as arises

naturally out of such employment or as naturally or

unavoidably results from such accidental injury, and

includes an injury caused by the willful act of a third

person directed against an employee because of his

employment.

A-56

(3) The term “employee” means any person en-

gaged in maritime employment, including any long-

shoreman or other person engaged in longshoring oper-

ations, and any harborworker including a _ ship

repairman, shipbuilder, and shipbreaker, but such term

does not include a master or member of a crew of any

vessel, or any person engaged by the master to load or

unload or repair any small vessel under eighteen tons

net.

(4) The term “employer” means an employer any of

whose employees are employed in maritime employ-

ment, in whole or in part, upon the navigable waters of

the United States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine railway, or

other adjoining area customarily used by an employer in

loading, unloading, repairing, or building a vessel).

(5S) The term “carrier” means any person or fund

authorized under section 32 [33 USCS § 932] to insure

under this Act and includes selfinsurers.

(6) The term “commission [Secretary]” means the

United States Employees’ Compensation Commission

[Secretary of Labor].

(7) The term “deputy commissioner” means the

deputy commissioner having jurisdiction in respect of

an injury or death.

(8) The term “State” includes a Territory and the

District of Columbia.

(9) The term “United States” when used in a

geographical sense means the several States and Terri-

tories and the District of Columbia, including the terri-

torial waters thereof.

(10) “Disability” means incapacity because of injury

to earn the wages which the employee was receiving at

the time of injury in the same or any other employment.

(11) “Death” as a basis for a right to compensation

means only death resulting from an injury.

A-57

(12) “Compensation” means the money allowance

payable to an employee or to his dependents as provided

for in this Act, and includes funeral benefits provided

therein.

(13) “Wages” means the money rate at which the

service rendered is recompensed under the contract of

hiring in force at the time of the injury, including the

reasonable value of board, rent, housing, lodging, or

similar advantage received from the employer, and gra-

tuities received in the course of employment from other

than the employer.

(14) “Child” shall include a posthumous child, a

child legally adopted prior to the injury of the employee,

a child in relation to whom the deceased employee stood

in loco parentis for at least one year prior to the time of

injury, and a stepchild or acknowledged illegitimate

child dependent upon the deceased, but does not in-

clude married children unless wholly dependent on him.

“Grandchild” means a child as above defined of a child

as above defined. “Brother” and “sister” include step-

brothers and stepsisters, half brothers and half sisters,

and brothers and sisters by adoption, but does not

include married brothers nor married sisters unless

wholly dependent on the employee. “Child”, “grand-

child”, “brother”, and “sister” include only a person who

is under eighteen years of age, or who, though eighteen

years of age or over, is (1) wholly dependent upon the

employee and incapable of self-support by reason of

mental or physical disability, or (2) a student as defined

in paragraph (19) [(18)] of this section.

(15) The term “parent” includes step-parents and

parents by adoption, parents-in-law, and any person who

for more than three years prior to the death of the

deceased employee stood in the place of a parent to him,

if dependent on the injured employee.

(16) The term “widow or widower” includes only the

decedent’s wife or husband living with or dependent for

support upon him or her at the time of his or her death;

A-58

or living apart for justifiable cause or by reason of his or

her desertion at such time.

(17) The terms “adoption” or “adopted” mean legal

adoption prior to the time of the injury.

(18) The term “student” means a person regularly

pursuing a full-time course of study or training at an

institution which is—

(A) a school or college or university operated or

directly supported by the United States, or by any

State or local government or political subdivision

thereof.

(B) a school or college or university which has

been accredited by a State or by a State recognized

or nationally recognized accrediting agency or body.

(C) a school or college or university not so

accredited but whose credits are accepted on trans-

fer, by not less than three institutions which are so

accredited, for credit on the same basis as if trans-

ferred from an institution so accredited, or

(D) an additional type of educational or training

institution as defined by the Secretary.

but not after he reaches the age of twenty-three or has

completed four years of education beyond the high

school level, except that where his twenty-third birthday

occurs during a semester or other enrollment period, he

shall continue to be considered a student until the end of

such semester or other enrollment period. A child shall

not be deemed to have ceased to be a student during any

interim between school years if the interim does not

exceed five months and if he shows to the satisfaction of

the Secretary that he has a bona fide intention of

continuing to pursue a full-time course of education or

training during the semester or other enrollment period

immediately following the interim or during periods of

reasonable duration during which, in the judgment of

the Secretary, he is prevented by factors beyond his

A-59

control from pursuing his education. A child shall not be

deemed to be a student under this Act during a period of

service in the Armed Forces of the United States.

(19) The term “national average weekly wage”

means the national average weekly earning of produc-

tion or nonsupervisory workers on private nonagricul-

tural payrolls.

(20) The term “Board” shall mean the Benefits

Review Board.

(21) The term “vessel” means any vessel upon

which or in connection with which any person entitled

to benefits under this Act suffers injury or death arising

out of or in the course of his employment, and said

vessel’s Owner, owner pro hac vice, agent, operator,

charter or bare boat charterer, master, officer, or crew

member.

(22) The singular includes the plural and the mas-

culine includes the feminine and neuter.

(Mar. 4, 1927, ch 509, § 2, 44 Stat. 1424; June 25, 1938,

ch 685. § 1, 52 Stat. 1164; Oct. 27, 1972, P.L. 92-576,

§§ 2(a)(b) 3, 5(b) 15(c), 18(b), 20(c), 86 Stat. 1251,

1262.)

§ 903. Coverage

(a) Compensation shall be payable under this Act in

respect of disability or death of an employee, but only if

the disability or death results from an injury occurring

upon the navigable waters of the United States (in-

cluding any adjoining pier, wharf, dry dock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employee in loading, unloading,

repairing, or building a vessel). No compensation shall

be payable in respect of the disability or death of —

(1) A master or member of a crew of any vessel, or

any person engaged by the master to load or unload or

repair any small vessel under eighteen tons net; or

A-60

(2) An officer or employee of the United States or

any agency thereof or of any State or foreign govern-

ment, or of any political subdivision thereof.

(b) No compensation shall be payable if the injury

was occasioned solely by the intoxication of the em-

ployee or by the willful intention of the employee to

injure or kill himself or another.

(Mar. 4, 1927, ch 509. § 3, 44 Stat. 1426; Oct. 27, 1972,

P. L. 92-576, §§ 2(c), 21, 86 Stat. 1251, 1265.)

§ 905. Exclusiveness of liability

(a) The liability of an employer prescribed in section

4 [33 USCS § 904] shall be exclusive and in place of all

other liability of such employer to the employee, his legal!

representative, husband or wife, parents, dependents,

next of kin, and anyone otherwise entitled to recover

damages from such employer at law or in admiralty on

account of such injury or death, except that if an

employer fails to secure payment of compensation as

required by this Act, an injured employee, or his legal

representative in case death results from the injury, may

elect to claim compensation under the Act, or to main-

tain an action at law or in admiralty for damages on

account of such injury or death. In such action the

defendant may not plead as a defense that the injury was

caused by the negligence of a fellow servant, or that the

employee assumed the risk of his employment, or that

the injury was due to the contributory negligence of the

employee.

(b) In the event of injury to a person covered under

this Act caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover damages

by reason thereof, may bring an action against such

vessel as a third party in accordance with the provisions

of section 33 of this Act [33 USCS § 933], and the

employer shall not be liable to the vessel for such

damages directly or indirectly and any agreements or

warranties to the contrary shall be void. If such person

A-61

was employed by the vessel to provide stevedoring

services, no such action shall be permitted if the injury

was caused by the negligence of persons engaged in

providing stevedoring services to the vessel. If such

person was employed by the vessel to provide ship

building or repair services, no such action shall be

permitted if the injury was caused by the negligence of

persons engaged in providing ship building or repair

services to the vessel. The liability of the vessel under

this subsection shall not be based upon the warranty of

seaworthiness or a breach thereof at the time the injury

occurred. The remedy provided in this subsection shall

be exclusive of all other remedies against the vessel

except remedies available under this Act.

(Mar. 4, 1927, ch 509, § 5, 44 Stat. 1426; Oct. 27, 1972,

P. L. 92-576, § 18(a), 86 Stat. 1263.)

DELAWARE CODE Ann. tit. 23, § 121 (1987)

§ 121. Receipt of pilots by vessels; penalties for refusal;

jurisdiction.

Every foreign ship or vessel and every ship or vessel

engaged in foreign commerce or trade arriving from or

bound to any foreign port or place, passing in or out of

the entrance to Delaware Bay, and passing between the

points of land known as the Capes of the Delaware, shall

be obliged to receive a pilot. For the purposes of this

section, the entrance to Delaware Bay is defined as that

body of water bounded by the New Jersey and Delaware

coasts as they border the Atlantic Ocean and included

within an arc of 20-mile radius as measured from the top

of the lighthouse known as “Harbor of Refuge Light.” If

the master of any ships or vessels, after she is spoken or

a pilot offered, refuses or neglects to take a pilot, the

master, owner or consignee of such vessel shall forfeit

and pay to any such pilot suing for the same a sum equal

to the pilotage of such ship or vessel to be recovered by

a Suit in the courts of this State or before a justice of the

———

A-62

peace, or such pilot may pursue his remedy therefor by

a libel in admiralty in any United States court either in

personam or by proceeding in rem, to enforce the lien

given him on such ship or vessel, as such pilot may see

fit and proper to do. (16 Del. Laws, c. 449, § 5; 17 Del.

Laws. c. 145, § 1; 18 Del. Laws, c. 619, § 2; Code 1915,

§ 957; Code 1935, § 1069; 23 Del. C. 1953, § 121; 62

Del. Laws, c. 105, § 7.)