Petition for Writ of Certiorari — Howard v. Southern Illinois Riverboat/Casino Cruises, Inc.

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Supreme Court, U.S.

FILED

_ oy 51 ll 8 — 2004

In The

Supreme Court of the Anited States

JOHN HOWARD, ET AL..,

Petitioners,

Vv.

SOUTHERN ILLINOIS RIVERBOAT/CASINO CRUISES,

INC. d/b/a PLAYERS ISLAND CASINO, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

GAIL GAUS RENSHAW*

Roy C. DRIPPS

THE LAKIN LAW FIRM

300 Evans Avenue

P.O. Box 229

Wood River, IL 62095

Phone: (618) 254-1127

Fax: (618) 254-3032

Counsel for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

cme SMD en

QUESTION PRESENTED

Can a vessel owner preclude, as a matter of law, a

determination that its vessel is “in navigation” by declar-

ing the owner’s subjective intent that the vessel will

remain moored on navigable waters even though the fully

functional vessel continues to engage in its customary and

substantial commercial activity?

PARTIES TO THE PROCEEDINGS

Petitioners are the following individuals, who were

the plaintiffs below:

Grace A. Alexander

Jerrie M. Belcher

Valerie Carroll

Anita A. Clayton

Cecelia Cook

Troy A. Davis

Debra J. Eastwood

Mona Ellis

Jeane C. Findley

Roy “Neal” Ford

John B. Fugate, IV

John M. Gregg

Judy Grimes

Shawn Hargan

Dana M. Hocker

John P. Howard

Brecia Huie

Shirley A. Johnson

Kathy L. Lay

Patricia Ledsinger

Kenneth R. Litchford

Robin L. Little

Wilma Lott

George P. Mabrey

Virginia R. Madden

J. Richard Matheny

Joan Misch

Keith E. Plumlee

Kitty Polovina

Zenon Rodriguez

Julia B. Salyer

Bonnie G. Shelton

Pamula D. Shinn

Robert E. Spain, Jr.

Pamela L. Taylor

Belinda S. Thomas

Michael W. Thomas

Nancy A. Williams

Lori A. Wurth

The Respondents are, Southern Illinois Riverboat/

Casino Cruises, Inc., d/b/a Players Island Casino, the

defendant below, and Triangle Enterprises, Inc. d/b/a

Triangle Insulation and Sheet Metal Company, the third-

party defendant below.

ae ili

SUPREME COURT RULE 29.6

DISCLOSURE STATEMENT

Caption: John Howard, et al. v. Riverboat /Casino Cruises,

Inc. v. Triangle Enterprises, In., d/b/a Triangle

Insulation and Sheet Metal Co.

The Petitioners are individuals with no corporate status or

affiliations.

TABLE OF CONTENTS

Page

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Supreme Court Rule 29.6 Disclosure Statement....... ili

ON en eT ee iv

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Statutory Provision Involved ...................ccccseceeeeeeees 2

I BR venice ccnnnvicdacsnetieintanahiaceiehaetitdacinin 2

Reason for Allowance of the Writ .....................cceeeeee 4

I. The Decision In This Case Merits Review

Because Its Holding That A Vessel Ceases Be-

ing A “Vessel In Navigation” Under The Jones

Act As A Matter Of Law On A Vessel Owner’s

Statement Of Subjective Intent To Remain

Moored In The Future Even Though The Vessel

Remains Fully Functional, Afloat On Navigable

Waters Conducting Substantial Commercial Ac-

tivities On Board Conflicts With Prior Inter-

pretations Of Jones Act Seaman Status Given

Be a a ectetiiicninthch tiie ciecienaiieibmetal cian 5

A. Aid In Navigation Is Not Required To Es-

tablish Seaman Status....................cccceeeeeees 6

B. A Vessel Remains “In Navigation” While

Berthed Or Even In Drydock....................... 7

C. “In Navigation” Includes “In Commerce”... 9

TABLE OF CONTENTS -— Continued

Page

D. The “Purpose” Analysis Is Only Applicable

To Unconventional Craft Whose Status Is

ns kticissconsnnsithiscnideduciariineastncene setae. 10

TABLE OF AUTHORITIES

Page

CASES

Butler v. Whiteman, 356 U.S. 271 (1958) ................ccceeceeees 9

Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)......... 4, 7, 8,9

Digiovanni v. Traylor Bros., Inc., 959 F.2d 1119

(Ist Cir.) (en banc), cert. denied, 506 U.S. 827

LIED cesansatanseise0iseknnntseuccsnniaieastaiinsinlnaiaeaana eae 8

Gremillion v. Gulf Coast Catering Co., 904 F.2d 290

PU NK SUUNEED ctctacceviinnndisinks csennhacakbanbdiasnienceiuemekuimiencnmn nants 10

Johnson v. John F. Beasley Construction Co., 742

F.2d 1054 (7th Cir. 1984), overruled on other

grounds, McDermott International, Inc., 498 U.S.

BN 6 IEE Ris sinasiaversansdsaccles sate uckseckaniaidiameiaaaian 4, 7, 8,9

McCarthy v. The Bark Peking, 716 F.2d 130 (2d Cir.

BUILD sci aisiaseconsacctascounccavnnsecousasheeaasiaaes aaaeenieei eee encos 8

McDermott International, Inc. v. Wilander, 498 U.S.

337, 112 L.Ed. 2d 866, 111 S.Ct. 807 (1991).......00000.. 6

Offshore, Co. v. Robison, 266 F.2d 769 (5th Cir.

RETIED ccsnsssiendtasrecsatinssidianiadsiaegmineensdiin mei aie ae eas 6

Senko v. LaCrosse Dredging Co., 352 U.S. 370

ER UPUIT F snntncsssnnenscannssstatninedassisiomeiianeeaaeeeieaal Ee 7

United States v. Thompson, 1 Sumn. 168, 28 F.Cas.

RATE ccnskcssshensusetnseendiatssictngesisneneetahamasbeanels asia hal anasnann manana 6

STATUTES AND RULES

EWR Bib sctisicsanccccnticesmsecdaiicaiskciaaeieiianadeanaandanne 7

BD Cds SOU dcdticcitcirssntskandscernsbiaieeiadanaaeenceene ale 1

Be Us De iaiiassidsenadesnscbustiaicaeemeaaecaee 1

Be PAD, Be Berd scinccicceiinsndsoinhanaaiee eee 1

TABLE OF AUTHORITIES — Continued

Page

Sp Re TIE Aicicnczeicsscucinecacsaicatcoiahdidal asabniecaasteinainseadtenaeaiater 2

ae a, ME ieciieasiisdcaiitsicatieabanenidssutsnnanipecinse aimee 2,5, 11

OTHER AUTHORITIES

2 M. Norris, Law of Seamen §30.13 p. 364.....................0008 8

OPINIONS BELOW

The memorandum and order of the United States

District Court for the Southern District of Illinois denying

defendants’ motions for summary judgment and certifying

an issue for interlocutory appeal is reprinted here as

Appendix C. The opinion of the United States Court of

Appeals for the Seventh Circuit is reported at 364 F.3d 854

(7th Cir. 2004) and is reprinted here as Appendix A. The

unreported order by the United States Court of Appeals for

the Seventh Circuit denying a petition for rehearing and

suggestion for rehearing en banc is reprinted here as

Appendix D.

JURISDICTION

The United States District Court for the Southern

District of Illinois had subject matter jurisdiction pursuant

to 28 U.S.C. §1331. The United States Court of Appeals for

the Seventh Circuit had jurisdiction pursuant to 28 U.S.C.

§1292(b) as the district court certified the issue involved,

finding the issue presented a question of controlling law

not previously decided by the United States Court of

Appeals for the Seventh Circuit and that an immediate

appeal would expedite the resolution of the litigation. The

Seventh Circuit Court of Appeals issued the opinion below

on April 9, 2004. The Seventh Circuit Court of Appeals

denied a request for rehearing and rehearing en banc on

May 17, 2004. This Court’s jurisdiction is invoked pursu-

ant to 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

This case involves The Jones Act, 46 U.S.C. §681 et

seq., specifically §688(a), which provides a cause of action

for damages for “any seaman who shall suffer personal

injury in the course of his employment...”

—

STATEMENT OF CASE

At all relevant times, the M/V Players II was a

riverboat casino located on the Ohio River in Maasac

County, Illinois. To begin operations in Illinois, the Players

II was brought from Lake Charles, Louisiana under its

own power with two assist boats. In September of 2001,

the Players II was replaced by the M/V Harrah’s North-

star and moved to Texas under its own power. |

The Players II was a U.S. Coast Guard inspected

vessel, with two engines used for propulsion, which em-

ployed a captain and crew qualified to navigate the vessel.

As a Coast Guard inspected vessel, the Players II was

required to carry the following documentation: Certificate

of Inspection, Certificate of Documentation, Certificate of

Financial Responsibility (water pollution), Ship/Aircraft

Radio Station License, Tonnage Certificate, and a stability

letter. The U.S. Coast Guard does nothing whatsoever

with regard to the gaming function of the vessel.

According to the September 28, 2001, Certificate of

Inspection, the Players II is required to have a minimum

crew of a master, chief engineer, nine deckhands and four

watchmen. Additionally, the Coast Guard required that

the M/V Players II have two rescue boats, eight inflatable

rafts, 1904 life preservers, and six ring buoys, along with

i aaa

particular fire fighting equipment. The Players II also had

all the aids to navigation, including a working bridge, with

radar, radios, a depth finder, throttles, and controls for

steering.

The Players II left the dock during Coast Guard

inspections. The vessel was required to do weekly man-

overboard, fire and emergency, abandon ship and allision

or collision drills; the vessel was also required to do a

monthly emergency generator test. There were also

inspections to prove propulsion conducted, during which

the vessel left its moorings. They were conducted at a

maximum of once every three months.

To cruise, the crew simply had to disconnect the vessel

from the dock, which in an emergency situation could be

accomplished in fifteen-twenty minutes. In July and

August of 2000, there was nothing about the river, which

prevented it from cruising. Further, the vessel’s engine

and navigational aides were all fully functional in July

and August 2000.

Finally, although a representative of defendant

corporation stated in an affidavit that defendant did not

intend to use the vessel for transport, it never notified the

Coast Guard of an intent to surrender its Certificate of

Inspection, nor has the vessel ever applied for permanent

mooring status.

Petitioners, forty-five employees of Southern Illinois

Riverboat Casino Cr rises, Inc. (“Southern”) and one patron,

who all sustained injuries from chemical exposure while on

board the defendant’s riverboats that was used for gaming

filed a Jones Act and general maritime law cause of action

in the District Court of the Southern District of Illinois.

Defendant filed a Limitation of Liability proceeding in the

Southern District of Illinois. Defendant Triangle Insula-

tion was named as a Third-Party defendant. The defen-

dants filed Summary Judgment Motions, which were

denied on August 19, 2002. However the district court

certified the issue as to whether the M/V Players Casino

IT was a vessel in navigation under the Jones Act, for

interlocutory appeal. This Court granted the defendants’

Petitions For Permission To Appeal on October 10, 2002.

On April 9, 2004 the United States Court of Appeals for

the Seventh Circuit issued an opinion reversing the

district court. Plaintiffs filed a petition for rehearing and

suggestion for rehearing en banc, which was denied on

May 17, 2004. Plaintiffs timely filed this Petition for a

Writ of Certiorari.

REASONS FOR ALLOWANCE OF THE WRIT

The United States Court of Appeals for the Seventh

Circuit found the Players II was not a vessel in navigation

because the defendant claimed Players IJ was moored and

would not leave dockside in the future. This decision

conflicts with this Court’s prior cases interpreting Jones

Act seaman status, Chandris, Inc. v. Latsis, 515 U.S. 347

(1995) and further conflicts with the Seventh Circuit’s

prior decision, Johnson v. John F. Beasley Construction

Co., 742 F.2d 1054 (7th Cir. 1984), overruled on other

grounds, McDermott International, Inc., 498 U.S. 337

(1991), by applying an impermissibly restrictive interpre-

tation to the term “vessel in navigation.”

The interpretation of the term “vessel in navigation,”

as used to determine “seaman” status under the Jones Act

is an issue that remains undecided by this Court and

profoundly affects a multitude of persons employed in the

riverboat gaming industry, who are injured in the course of

their employment. This Court recently granted certiorari

in a case with a related but distinct issue. That case,

Stewart v. Dutra Construction Co., No. 03-814 presents the

question of whether a special-purpose watercraft (such as

a dredge) is a Jones Act “vessel”? While this Court will

indeed resolve one source of confusion surrounding the

meaning of “vessel in navigation” with a decision in

Stewart, the question of what moored vessels and what

activities vessels must be engaged in to fall within the

term “vessel in navigation” will go unanswered and the

issue will continue to be litigated with less than uniform

results. If this Court grants the Petition For Writ in the

case at bar, however, the entire “vessel in navigation” issue

can be laid to rest within a short time span. Many of the

decisions in the lower courts confuse the issue in Stewart

with the issue presented herein, viewing them as one.

Allowing certiorari in this case would result in a consis-

tent interpretation of the term “vessel in navigation.”

I. The Decision In This Case Merits Review

Because Its Holding That A Vessel Ceases Being

A “Vessel In Navigation” Under The Jones Act

As A Matter Of Law On A Vessel Owner’s

Statement Of Subjective Intent To Remain

Moored In The Future Even Though The Vessel

Remains Fully Functional, Afloat On Navigable

Waters Conducting Substantial Commercial

Activities On Board Conflicts With Prior Inter-

pretations Of Jones Act Seaman Status Given

By This Court.

The Jones Act (46 U.S.C. §688) provides benefits to

the members of the crew of a vessel for injuries resulting

from employer negligence. McDermott International, Inc.

v. Wilander, 498 U.S. 337, 347, 112 L.Ed. 2d 866, 111 S.Ct.

807 (1991). In Wilander, this Court approved the seaman

status test first formulated by the Fifth Circuit in Off-

shore, Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959).

That multi-pronged test required submission to a jury if

there was evidence that (1) the injured worker was as-

signed permanently to a vessel or performed a substantial

part of his work on the vessel and (2) the duties performed

contributed to the function of the vessel or its mission’s

accomplishment or to the operation or welfare in terms of

maintenance during movement or anchorage.

A. Aid In Navigation Is Not Required To Es-

tablish Seaman Status

Before 1991 some courts required that a putative

seaman aid in the navigation of the vessel. In that year,

this Court adopted the Robison test and held that an

employee need not aid in the navigation of his assigned

vessel but need only further the mission of that vessel to

qualify as a Jones Act seaman. McDermott International,

Inc. v. Wilander, 498 U.S. 337 (1991). The jury and appel-

late court’s determination that Wilander was a seaman

even though he had no navigation duties at all was af-

firmed.

This Court held that the “key to seaman status is

employment-related connection to a vessel in navigation.”

498 U.S. 337, 355. The Court noted that a cooper, a pilot, a

surgeon, a ship-carpenter and a boatswain are all seamen.

498 U.S. 337, 345 citing United States v. Thompson, 1

Sumn. 168, 28 F.Cas. 102 (No. 16,494) (CC Mass) (per

Story, J.). Thus, it is not necessary to seaman status that

the employee aid in navigation of the vessel or even have

any navigation duties at all.

B. A Vessel Remains “In Navigation” While

Berthed Or Even In Drydock

Congress has defined a vessel to include “every

description of water craft or other artificial contrivance

used, or capable of being used, as a means of transporta-

tion on water.” 1 U.S.C. §3. Because the Players II has its

own motive power and meets the requirement of this

definition, it is unquestionably a vessel.

It is well-established that a vessel is “in navigation”

while moored in navigable waters. Senko v. LaCrosse

Dredging Co., 352 U.S. 370, 373 (1957). The Court there

held that a member of a ships crew is covered by the Jones

Act even if the ship is confined to berth for lengthy peri-

ods. 352 U.S. 370, 373.

This Court in Chandris, Inc. v. Latsis, 515 U.S. 347

(1995) noted that seaman status did not require “that a

maritime employee must work only on board a vessel to

qualify as a seaman under the Jones Act.” 515 U.S. 347,

363. It approved a rule of thumb that a “worker who

spends less than about 30 percent of his time in the

service of a vessel_in-navigation should not qualify as a

seaman under the Jones Act.”

The Chandris holding is a tacit approval of the Sev-

enth Circuit’s vessel analysis in Johnson v. John F. Beasley

Construction Co., 742 F.2d 1054, 1063-1064 (7th Cir. 1984),

overruled on other grounds, McDermott International, Inc.

v. Wilander, 498 U.S. 337, supra. The Seventh Circuit

there held that “the injured employee does not cease

becoming a member of a crew if the vessel is docked or

anchored at the moment of injury.” The “in navigation”

requirement was to be used in its broad sense, and not

confined strictly to the actual navigating or movement of

the vessel. The term was held to mean that the vessel is

engaged as an instrument of commerce or transportation

on water. “Indeed, so long as the vessel is upon navigable

waters, an injured Jones Act seaman may recover for

injuries suffered while on the wharf.” Johnson, 742 F.2d

1054, 1063-1064. Chandris agreed with the Court of

Appeals that the district court had erred in concluding

that the vessel was not “in navigation” while it was in

drydock, holding a vessel did not cease being a vessel

when not voyaging, but is at anchor, berthed, or at dock-

side. 515 U.S. at 376, quoting Digiovanni v. Traylor Bros.,

Inc., 959 F.2d 1119, 1121 (1st Cir.) (en banc), cert. denied,

506 U.S. 827 (1992). A vessel would still be a vessel,

although moored to a dock, if it remained ready for an-

other voyage. 515 U.S. at 374, quoting 2 M. Norris, Law of

Seamen §30.13, p. 364 (emphasis added). It is only when a

vessel is “transformed through ‘major’ overhauls or reno-

vations” that it ceases to be “in navigation.” 515 U.S. at

374. The Court stated that a six-month period in which a

vessel is out of service was relatively minor by maritime

standards. Id. cf: McCarthy v. The Bark Peking, 716 F.2d

130, 136 (2d Cir. 1983) (museum ship permanently moored

for over 50 years with rudder welded in place was still a

vessel because it rested on navigable waters and could

return to sea, even if only in tow). This issue is fact inten-

sive and is one that must be presented to the trier of fact

for the purpose of weighing conflicting evidence; it should

not be decided as a matter of law, except in the rarest of

circumstances, Chandris, 515 U.S. at 376, where all facts |

and inferences would take a particular structure outside

any permissible understanding of the term.

C. “In Navigation” Includes “In Commerce”

In Johnson v. John F. Beasley Construction Co., 742

F.2d 1054, 1063-1064 (7th Cir. 1984), the Seventh Circuit

held that the term “in navigation” is used in a broad sense

and does not mean actual movement of the vessel. Instead

it means that the vessel is an “instrument of commerce or

transportation on water.” Johnson at 1064. Commerce and

transportation on water are used in the disjunctive, which

means that the transportation function is not essential to

satisfying the test in this case. Clearly, most vessels are

instruments of commerce because they charge money to

move goods or passengers over the water. However, defen-

dant’s gambling boat makes money whether or not it

moves passengers or goods. Thus, it is always in commerce

or navigation regardless of its physical movements.

The Players II is clearly an instrument of commerce

and it was a vessel in the traditional sense of the word,

with the physical characteristics of a vessel and the ability

and readiness to cruise a navigable river. The fact that it

was moored at the time of injury does not remove it from

navigation, as a matter of law. Thus, the Seventh Circuit’s

opinion, that a floating gambling casino, which does not

cruise on water with their customers as a matter of law is

not a vessel in navigation — is simply wrong and conflicts

with the broad interpretations previously given. This

Court has typically applied a broad view of what consti-

tutes a “vessel in navigation” to effectuate the beneficial

purposes of the Jones Act, Chandris, 515 U.S. at 374. See

also Butler v. Whiteman, 356 U.S. 271 (1958).

D. The “Purpose” Analysis Is Only Applicable

To Unconventional Craft Whose Status Is

Unsettled.

The argument that a vessel is not “in navigation”

unless its purpose is the transportation of passengers,

cargo, or equipment across navigable waters is an inaccu-

rate analysis of the law. This argument inappropriately

combines two separate inquiries: first, whether a craft is a

“vessel” and second, whether that vessel is in “commerce

or navigation.” This Court will resolve the former when it

decides the pending case, Stewart v. Dutra Construction

Co., No. 03-814. An opportunity for resolution of the latter

would be provided if the petition for certiorari is granted

in the case at bar.

There are numerous cases dealing with the question

of whether exotic or unconventional craft, which are not

usually used as a means of transport but are designed to

float on water qualify as vessels. The “purpose” analysis is

only applied when an “unconventional craft” is claimed by

the plaintiff to be a vessel. Gremillion v. Gulf Coast Cater-

ing Co., 904 F.2d 290 (5th Cir. 1990) provides an example

of this analysis conducted by the Fifth Circuit.

The Players II is clearly a “vessel” under this analysis.

It was built as a passenger vessel. From the time that it

was built until the present time, she has always main-

tained features that would allow it to carry on work as a

passenger vessel. It has always had engines, inflatable life

rafts, two rescue boats, fifteen hundred personal flotation

devices, life rings, and aids to navigation including radar.

Significantly, the vessel has a Coast Guard certificate

of inspection. The Players II never applied to the Coast

Guard to withdraw itself as a licensed passenger vessel

A eet Me a ee ,

and has never been put into a contained moat of any kind

but rather has always been moored on the river. In this

circumstance, there is no question that the Players IT is in

fact a “vessel,” regardless of defendants’ subjective intent

with regard to future cruises.

The statement by defendant’s agent that it intended to

permanently moor the Players II cannot be the basis for

determination as a matter of law that the Players II was

not a vessel in navigation. The Players II leaves its moor-

ings for the quarterly Coast Guard tests and for de-

drifting. The Players IT maintains fuel, functional engines,

navigation and safety aids, and a marine crew. It is also

fully capable of cruising up and down the river. It takes

approximately fifteen minutes to disconnect the Players II

from the dock.

In addition to the evidence of Player’s II capability to

cruise in a very short amount of time, there is other

evidence in that case to raise the question of navigability,

such as the fact that Players IJ never relinquished its

certificate of inspection, and did not apply for permanent

mooring status. This conflicting evidence and the infer-

ences that can be drawn preclude determining this issue

as a matter of law.

CONCLUSION

The petition for writ of certiorari should be granted in

this case to settle the issue of when it can be determined

as a matter of law whether a riverboat used for gaming is

or is not a vessel in navigation under the Jones Act, 46

U.S.C. §688, which is a question of significant national

interest and is required to resolve a conflict between the

circuits, and this Court’s interpretation.

Respectfully submitted,

GAIL GAUS RENSHAW*

Roy C. DRIPPS

THE LAKIN LAW FIRM

300 Evans Avenue

P.O. Box 229

Wood River, IL 62095

Phone: (618) 254-1127

Fax: (618) 254-3032

Counsel for Petitioners

*Counsel of Record

App. i

APPENDIX

Opinion entered by United States Court of

Appeals for the Seventh Circuit, April 9,

DS RELL ELAR IOI RITE = App.

Order granting Petitions For Leave To Appeal,

CORREO BD, TIIIE csscestasvensscstsnpcsnnsesassinanincectecenes App.

Memorandum and Order of United States

District Court, Southern District Ilinois deny-

ing Defendants Motion For Summary Judg-

ment And certification for interlocutory appeal

pursuant to 28 U.S.C. §1292(b) August 19,

Order denying Plaintiffs-Appellees’ Petition

For Rehearing and Suggestion For Rehearing

Bits OO, BERG BF, WOO cccesesssssccosencosssassensnvsssaes App.

4B UBC. tape § GRID vnvccsarsncesssneessvsannanesecancons App.

Plaintiffs’ Memorandum In Opposition To

Summary Judgment (with exhibits) ............... App.

Defendant’s Motion For Summary Judgment

POT CE iinsniniidninenssicereneantinnamencinanniniaa App. 104

App. 1

APPENDIX A

In the

United States Court of Appeals

for the Seventh Circuit

Nos. 02-3818 & 02-3819

JOHN Howarb, et al.,

Plaintiffs-Appellees,

SOUTHERN ILLINOIS RIVERBOAT CASINO CRUISES, INC.,

doing business as Players Island Casino,

Defendant Third-Party Plaintiff-Appellant,

TRIANGLE ENTERPRISES, INC., doing business as

TRIANGLE INSULATION AND SHEET METAL COMPANY,

Third-Party Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Illinois.

Nos. 00 C 4321 & 01 C 4299 -

G. Patrick Murphy, Chief Justice.

ARGUED May 20, 2003 — DECIDED APRIL 9, 2004

Before COFFEY, KANNE, and DIANE P. Woop, Circuit

Judges.

App. 2

DIANE P. WooD, Circuit Judge. This controversy arose

when 46 individual plaintiffs brought negligence claims

under the Jones Act, 46 U.S.C. app. § 688(a), for injuries

they allegedly sustained while working aboard a riverboat

casino, the M/V Players II (Players II). Players II was

permanently moored to the dock at all times pertinent to

their claims. The question we must decide is whether this

fact is enough to defeat any claim under the Jones Act,

which creates a federal negligence remedy for seamen. The

district court thought not, but it certified under 28 U.S.C.

§ 1292(b) the following question for interlocutory review:

whether Players II was a vessel “in navigation” covered by

the Jones Act, such that the plaintiffs employed on board

were Jones Act “seamen.” We agreed to hear the appeal,

and we now reverse.

Beginning in 1995, defendant Players Island Casino

(Players) operated a gaming casino on Players II, a river-

boat casino located on the Ohio River near Metropolis,

Illinois. At that time under Illinois law, gaming casinos

could be operated only on licensed self-propelled excursion

boats that cruised along navigable streams. In 1999, the

Illinois General Assembly amended the Illinois Riverboat

Gambling Act to allow gaming on “permanently moored”

barges. 230 ILL. Comp. StaT. 10/4(d) & 10/3(c). Soon

thereafter, Players II ceased cruising along the Ohio River

and (with minor exceptions described below) was perma-

nently moored to the dock. According to an affidavit by the

vice president of operations and marketing, Jeff Pfeiffer,

Players had no intention of having Players II cruise again

as part of casino operations.

App. 3

Plaintiffs claim that they sustained injuries when

they were exposed to chemicals while working aboard

Players II on July 28 and 29, 2000. It is undisputed that at

the time of the plaintiffs’ alleged injuries, the casino had

been docked for more than a year and was not in the

business of transporting passengers. It was connected to

land-based utilities, including electricity, telephone, water,

and sewer. Nevertheless, it could be disconnected from the

dock in about 15 to 20 minutes. Moreover, Players II was

licensed and classified as a passenger vessel with the U.S.

Coast Guard and was equipped with firefighting and

safety equipment. It also employed a captain and crew

qualified to move the casino if necessary. After the 1999

change in Illinois law allowing dockside gaming, however,

Players II never left its moorings except in connection with

propulsion tests required by the Coast Guard. During the

propulsion tests (which took about 45 minutes to com-

plete), Players II would move out into the river about 100

feet and then return to the dock. By the time of plaintiffs’

alleged injuries, the Coast Guard required the propulsion

test only once a year. In September 2001, Players removed

Players II from service as a casino. Some time later, it

sailed under its own power to Texas to await sale.

Defendant Players and third-party defendant Triangle

Insulation and Sheet Metal Company (Triangle) filed

motions for summary judgment in district court, seeking

dismissal of the plaintiffs’ claims on the grounds that

Players II was not a vessel “in navigation” and thus the

plaintiffs were not “seamen” protected by the statute. The

district court denied Players’ and Triangle’s motions for

summary judgment and certified this issue for interlocu-

tory appeal under 28 U.S.C. § 1292(b).

App. 4

The Jones Act creates a federal negligence claim for

any “seaman” injured in the course of employment. 46

U.S.C. app. § 688(a). Congress enacted the Jones Act to

provide seamen with heightened legal protection because

of their exposure to “perils of the sea.” Chandris, Inc. v.

Latsis, 515 U.S. 347, 368 (1995). Oddly enough, the term

“seaman” is not defined in the statute; instead, it has been

up to the courts to define that central term. The Supreme

Court has established two requirements for seaman

status: (1) the employee’s duties must contribute to the

function of the vessel or to the accomplishment of its

mission; and (2) the employee must have a “substantial

employment-related connection to a vessel in navigation.”

Id. at 373 (emphasis in original); McDermott Int'l, Inc. v.

Wilander, 498 U.S. 337, 354-55 (1991). As the Supreme

Court noted in Chandris:

The fundamental purpose of this substantial

connection requirement is to give full effect to

the remedial scheme created by Congress and to

separate the sea-based maritime employees who

are entitled to Jones Act protection from those

land-based workers who have only a transitory

or sporadic connection to a vessel in navigation,

and therefore whose employment does not regu-

larly expose them to the perils of the sea.

515 U.S. at 369.

The only question before us today is whether an

indefinitely moored vessel that has the ready capability of

cruising, but that is not used or intended to be used for the

purpose of moving or transporting, qualifies as a vessel in

navigation. To be precise, it is clear that Players II is a

vessel; what is contested is whether that vessel is “in

App. 5

navigation.” We are aware that the Supreme Court has

granted certiorari in Stewart v. Dutra Construction Co.,

2004 WL 323176 (U.S. Feb. 23, 2004), which presents the

question whether a special-purpose dredge is a Jones Act

“vessel.” See Pet. for Writ. of Cert., 2003 WL 22926387

(U.S. Dec.3, 2003) (No. 03-814). That question, however, is

distinct from the question whether a conventional sea-

faring craft is “in navigation,” as opposed to “out of naviga-

tion” or “withdrawn from navigation.” Chandris, 515 U.S.

at 373-74. Because the latter question is the one presented

in this case, we see no need to postpone our decision for

the resolution of Stewart. The navigation issue, the Court

held in Chandris, is normally one of fact reserved for the

jury. Id. at 373. As is generally true, however, it is appro-

priate to remove that issue from the jury if there is no

genuine issue of material fact and the law will reasonably

support only one conclusion. Jd.

The district court concluded that Players II’s indefi-

nite mooring did not compel the finding that it was not in

navigation. Giving little weight to Players II’s purpose or

actual use, the district court focused instead on the fact

that Players II was ready and able to cruise at 15-20

minutes’ notice. It found this case to be distinguishable

from Pavone v. Mississippi Amusement Corporation, 52

F.3d 560 (5th Cir. 1995) (analyzing same issue for floating

dockside casino not ready and able to cruise, and holding

that the vessel was not in navigation), and Chase v.

Louisiana Riverboat Gaming Partnership, 709 So. 2d 904

(La. App. 1998) (same), because Players II was ready and

able to cruise. Citing language in Johnson v. John F

Beasley Construction Company, 742 F.2d 1054 (7th Cir.

1984), the district court also found support for Players II’ s

“in navigation” status because the vessel was literally

App. 6

engaged as an instrument of commerce as it floated on the

Ohio River, obviously a navigable body of water. Id. at

1063. Finally, the district court noted that it was only by

virtue of its status as a vessel that Players II could operate

as a gambling casino. See 230 ILL. Comp. Stat. 10/3-10/4.

While we appreciate the district court’s care in consid-

ering this question, in the end we are persuaded that

Chandris requires a more pragmatic approach than the

one the court used. As we recognized in Johnson, in order

for a vessel to satisfy the navigation requirement, the

purpose of the vessel “must to some reasonable degree be

the transportation of passengers, cargo, or equipment from

place to place across navigable waters.” Johnson, 742 F.2d

at 1063 (internal citations and quotations omitted). More-

over, the analysis in Pavone and Chase did not hinge upon

whether the vessel was ready and able to cruise, but

looked to the vessel’s purpose and actual use (whether it

was used to move or transport anything). Pavone, 52 F.3d

at 570; Chase, 709 So. 2d at 910. Finally, whether a ship is

a vessel for state law gambling purposes, while perhaps

one factor to take into account, does not govern the ques-

tion whether it is a vessel in navigation for purposes of the

Jones Act.

Unlike the vessels in navigation that have been the

subject of decisions of this court and the Supreme Court,

the purpose of Players IJ was not to move or transport

cargo or people, but merely to provide a legal venue under

Illinois law for gambling. Recognizing that indefinitely

moored dockside casinos are not the kind of vessels that

the Jones Act addresses is consistent with the statute’s

purpose of enhancing legal protections for seamen “regu-

larly” exposed to the “perils of the sea.” See Chandris, 515

U.S. at 369. We hinted at this conclusion in our earlier

App. 7

decision in Weaver v. Hollywood Casino-Aurora, Inc.,

where we remarked that “[i]f the casino were indefinitely

moored (as the record suggests it now is), its status as a

vessel in navigation would be doubtful.” 255 F.3d 379, 387

(7th Cir. 2001). Today we hold that an indefinitely moored

dockside casino with no transportation function or purpose

is not a vessel “in navigation.” See Martin v. Boyd Gaming

Corp., 252 F.Supp.2d 321, 323 (E.D. La. 2003); Grobe v.

Hollywood Casino-Aurora, Inc., 759 N.E.2d 154, 159-60

(Ill. App. Ct. 2001); see also Johnson, 742 F.2d at 1063 (“If

the waterborne structure serves no transportation func-

tion, of course, it can have no group performing naviga-

tional functions, and hence no maritime ‘crew.’”); Tonnesen

v. Yonkers Contracting Co., Inc., 82 F.3d 30, 36 (2d Cir.

1996) (ignoring original purpose for which the floating

structure was constructed and focusing on whether the

floating structure was primarily used for transportation

purposes during a reasonable period of time immediately

preceding the accident). In applying this test, courts will

need to examine, among other factors, the current use of

the vessel and the question “whether the owner intends to

move the structure on a regular basis and the length of

time the structure has remained stationary.” Grobe, 759

N.E.2d at 159.

In this case, the undisputed facts doom the plaintiffs’

claims. Players II was an indefinitely moored dockside

casino at the time of the alleged injuries and was never

moved except to be tested. As a matter of law, we conclude

that it was not “in navigation” for purposes of the Jones

Act, and thus that these plaintiffs were not within the

class protected by that statute.

App. 8

Ill

The order of the district court denying summary

judgment to Players and Triangle is REVERSED, and the

case is REMANDED for entry of judgment in their favor.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

App. 9

APPENDIX B

United States Court of Appeals ts

For the Seventh Circuit

Chicago, Illinois 60604

October 10, 2002

Before

Hon. DANIEL A. MANION, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

SOUTHERN ILLINOIS ] Petition for Permission to

RIVERBOAT CASINO ] Appeal Pursuant to 28

CRUISES, INCORPORATED, ] U.S.C. 1292(b)

doing business as PLAYERS | Southern District of Illinois.

RIVERBOAT CASINO, ] G. Patrick Murphy,

Petitioner, Chief Judge.

No. 02-8020 v.

JOHN HOWARD, ROY FORD,

JUDY GRIMES, et al.,

Respondents.

TRIANGLE ENTERPRISES, ] Petition for Permission to

INCORPORATED, doing ] Appeal Pursuant to 28

business as, TRIANGLE ] U.S.C. 1292(b)

INSULATOIN AND SHEET Northern District of Indi-

METAL COMPANY, ana, South Bend Division.

]

Petitioner, | G, Patrick Murphy,

No. 02-8021 iv. j Chief Judge.

JOHN HOWARD, ROY FORD, |

JUDY GRIMES, et al.,

Respondents. ]

App. 10

The following are before the court:

1. PETITION FOR PERMISSION TO AP-

PEAL, filed on August 29, 2002 by counsel

for the petitioner in 02-8020.

2. PETITION FOR PERMISSION TO AP-

PEAL, filed on August 29, 2002, by counsel

for Triangle Enterprises in 02-8021.

3. ANSWER OF PLAINTIFFS/APPELLEES

JOHN HOWARD, ET AL. TO THIRD-

PARTY DEFENDANT/APPELLANT TRI-

ANGLE ENTERPRISES, INC. d/b/a TRIAN-

GLE INSULATION AND SHEET METAL

COMPANY PETITION FOR PERMIS-

SION TO APPEAL, filed on September 9,

2002, by counsel for the appellees in 02-8020.

IT IS ORDERED that the petitions are GRANTED.

Petitioners shall pay the required appellate fees to the

clerk of the district court within 10 days of the entry of

this order pursuant to Federal Rule of Appellate Proce-

dure (5)(d)(1). Once the district court notifies this court

that the fees have been paid, the appeal will be entered on

this court’s general docket.

App. 11

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHN HOWARD, ROY FORD, )

JUDY GRIMES, BONNIE )

SHELTON, WILMA LOTT, )

JOAN MISCH, VIRGINIA )

MADDEN, PATRICIA )

LEDSINGER, VALERIE )

CARROLL, SHIRLEY )

JOHNSON, GRACE )

ALEXANDER, HOWARD MEZO, )

JERRIE BELCHER, CECELIA )

COOK, ANITA CLAYTON, )

TROY DAVIS, DEBRA )

EASTWOOD, JOHN GREGG, )

THOMAS GRIMES, DANA )

HOCKER, BRECIA HUIE, )

KATHY LAY, KENNETH )

LITCHFORD, ROBIN LITTLE, )

GEORGE MABREY, J. )

RICHARD MATHENY, KEITH )

PLUMLEE, KITTY POLOVINA, )

ZENON RODRIGUEZ, JULIA _ )

SALYER, PAMULA SHINN, )

PAMELA TAYLOR, BELINDA _)

THOMAS, MICHAEL THOMAS, )

NANCY WILLIAMS, LORI ANN )

WURTH, SUSAN WEICHINGER, )

LAURA GRINLINTON, HENRY )

WHITE, BILLY SHELBY,

KATHY ANN CRAIG, SHERYL

STATON, MONA ELLIS,

SHAWN HARGAN, JOHN

FUGATE, ROBERT SPAIN,

and JEANE FINDLEY,

a a ae

App. 12

Plainiiffs, ) CIVIL NO.

) 00-4321-GPM

vs. )

SOUTHERN L'.LINOIS )

RIVERBOAT/CASINO ) (Filed Aug. 19, 2002)

CRUISES, INC., \Vb/a PLAYERS )

RIVERBOAT CASiNO, and )

HARRAH’S ILLINOYS )

CORPORATION, )

Defendants/Third-Farty

Plaintiffs, :

vs. )

TRIANGLE INSULATION AND ?

SHEET METAL COMPANY,

Third-Party Defendant. )

MEMORANDUM AND ORDER

MURPHY, Chief District Judge:

This matter came before the Court on July 29, 2002,

for a hearing on motions for summary judgment tiled by

Defendant Southern [llinois Riverboat/Casino Cruises,

Inc., d/b/a Players Riverboat Casino, and Third-Pa.ty

Defendant Triangle Insulation and Sheet Metal Company

(Docs. 61, 68). For the reasons set forth below, the motions

are denied. Because the motions involve a controlling

question of law as to which there is substantial ground for

difference of opinion and because an immediate appeal

from this Order may materially advance the ultimate

termination of this litigation, the Court certifies the issue

for an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b).

App. 13

BACKGROUND

This action involves a riverboat casino on the Ohio

River near Metropolis, Illinois. The action is brought by 47

individual plaintiffs for injuries they allegedly sustained

when they were exposed to chemicals while aboard the

M/V Players II on July 28 and 29, 2000. All but one of the

plaintiffs, Howard Mezo, claims to be a Jones Act seaman.

The Court’s jurisdiction is premised upon 28 U.S.C.

§§ 1331 and 1333.

Defendant Players owns the M/V Players II and

operated it as a casino until September 11, 2001.’ After

June 26, 1999, when a change in Illinois law allowed

gaming on dockside casinos, the M/V Players II no longer

cruised on the Ohio River. According to an affidavit by Jeff

Pfeiffer, Players’s [sic] Vice President of Operations and

Marketing, the owners of the vessel had no intention to

resume cruising after that date.

It is undisputed that at the time of Plaintiffs’ alleged

injuries, the casino was not transporting passengers. It

was connected to land-based utilities, such as electricity,

telephone, water, and sewer. It was licensed and classified

as a passenger vessel with the United States Coast Guard

and was equipped with fire fighting and safety equipment.

It employed a captain and crew qualified to move the

* Defendant/Third-Party Plaintiff Harrah’s Illinois Corporation

was dismissed without prejudice on April 26, 2002. (See Doc. 49). After

this suit was commenced, Defendant Players filed a limitation of

liability action (see Cause No. 01-4040-GPM), but it was dismissed

pursuant to Defendant’s motion for voluntary dismissal on September

26, 2001, with prejudice to refiling a limitation action but without

vrejudice to defending the claims in this action.

App. 14

casino if necessary, and it occasionally left its moorings

when required by the United States Coast Guard to

perform propulsion testing (which was performed without

passengers aboard the vessel). The vessel was brought to

its location in Metropolis from Lake Charles, Louisiana,

under its own power, and, when it was replaced by an-

other vessel in September 2001, it moved to Texas under

its own power.

The M/V Players II was a Coast Guard inspected

vessel which was required to carry the following documen-

tation: Certificate of Inspection, Certificate of Documenta-

tion, Certificate of Financial Responsibility, Ship/Aircraft

Radio Station License, Tonnage Certificate, and a Stability

Letter. According to the September 28, 2001, Certificate of

Inspection, the M/V Players II was required to have a

minimum crew of a master, chief engineer, nine deck-

hands, and four watchmen. The Coast Guard also required

that the vessel have two rescue boats, eight inflatable

rafts, 1,904 life preservers, six ring buoys, and fire fighting

equipment. 2

In order to cruise, the crew simply had to disconnect

the vessel from the dock. According to Players’s [sic]

Director of Facilities, Jeff Carpenter, in an emergency

situation the vessel could be disconnected from the dock in

15 to 20 minutes. (See Doc. 70, Exhibit 1 — Carpenter

Depo, p. 31).

ALYSIS

The Jones Act, 46 U.S.C. § 688, was passed in 1920 to

provide a cause of action in negligence for “any seaman”

injured “in the course of his employment.” Unfortunately,

the Jones Act does not define seaman, and the definition

Te ee Se ae ee ee! ee ep ee ee

App. 15

has evolved through case law in the years since its pas-

sage.

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

(1991), the United States Supreme Court discussed the

history behind the Jones Act and its companion for land-

based workers, the Longshore Harbor Workers Compensa-

tion Act, 33 U.S.C. §§ 901-950. In Wilander, the Supreme

Court rejected the rule developed by some courts that a

seaman must aid in navigation of the vessel in order to

qualify as a seaman under the Jones Act. The Supreme

Court “jettison[ed] the aid in navigation language,”

Wilander, 498 U.S. at 353, and found that the better rule

is to define a seaman under the Jones Act “solely in terms

of the employee’s connection to a vessel in navigation.” Id.

at 354. The Court noted that “[aJll 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. Thus, the key inquiry is “employment-

related connection to a vessel in navigation . . . a necessary

element of the connection is that a seaman perform the

work of a vessel.” Jd. at 355.

The Wilander Court approved of the test for seaman

status which was first formulated by the Fifth Circuit in

Offshore Company v. Robison, 266 F.2d 769 (1959). See

Wilander, 498 U.S. at 354-355. Under the test in Robison,

“there is an evidentiary basis for a Jones Act case to go to

the jury:

(1) if there is evidence that the injured workman

was assigned permanently to a vessel (including

special purpose structures not usually employed

as a means of transport by water but designed to

float on water) or performed a substantial part of

his work on the vessel; and (2) if the capacity in

App. 16

which he was employed or the duties which he

performed contributed to the function of the ves-

sel or to the accomplishment of its mission, or to

the operation or welfare of the vessel in terms of

its maintenance during its movement or during

anchorage for its future trips.”

Robison, 266 F.2d at 779.

Four years after the Wilander decision, in another

attempt to clarify the seaman status test, the Supreme

Court held that in order to have an employment-related

connection to a vessel in navigation, “[t]he worker’s duties

must contribute to the function of the vessel or to the

accomplishment of its mission, and the worker must have

a connection to a vessel in navigation (or an identifiable

group of vessels) that is substantial in terms of both its

duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S.

347, 376 (1995). The Court noted that the Jones Act was

enacted “to protect sea-based maritime workers, who owe

their allegiance to a vessel, and not land-based employees

who do not.” Jd. at 376.

The fact that a vessel is moored at the time of a

plaintiff's injury does not remove the action from the

realm of the Jones Act. The Chandris Court noted that “it

is generally accepted that ‘a vessel does not cease to be a

vessel when she is not voyaging, but is at anchor, berthed,

or at dockside.’” Chandris, 515 U.S. at 373 (quoting

DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119, 1121 (1st

Cir.) (en banc), cert. denied, 506 U.S. 827 (1992)). At some

point, major renovations to a vessel in drydock can remove

a vessel from being considered in navigation, but the

general rule “is that vessels undergoing repairs or spend-

ing a relatively short period of time in drydock are still

App. 17

considered to be ‘in navigation.’” Chandris, 515 U.S. at

374.

The question here is whether the M/V Players II

qualifies as a vessel in navigation because of its moored

status as a gambling boat. According to Players, it does

not because its purpose is not to any reasonable degree the

transportation of passengers, cargo, or equipment from

place to place across navigable waters. Players relies on

the recent decision from the Illinois Appellate Court for

the Second District in Grobe v. Hollywood Casino, 759

N.E.2d 154 (Ill. App. Ct. 2001). In Grobe, the Second

District noted that when determining vessel status, courts

consider the following characteristics: “(1) the presence of

navigation aids; (2) the presence of lifeboats and other

lifesaving equipment; (3) the shape of the bow; (4) the

presence of bilge pumps; (5) the presence of crew quarters;

and (6) Coast Guard registration.” Grobe, 759 N.E.2d at

159 (citing Gremillion v. Gulf Coast Catering Co., 904 F.2d

290, 293 (5th Cir. 1990)). The Court noted that to be a

vessel in navigation, the vessel’s purpose “must be, to

some reasonable degree, the transportation of passengers,

cargo, or equipment across navigable waters.” Grobe, 759

N.E.2d at 159 (citing Johnson v. John F. Beasley Constr.

Co., 742 F.2d 1054, 1063 (7th Cir. 1984)). It is also rele-

vant “whether the owner intends to move the structure on

a regular basis and the length of time the structure has

remained stationary.” Grobe, 759 N.E.2d at 159 (citing

Gremillion, 904 F.2d at 293).

In Grobe, the Second District noted that although it

was a matter of first impression for an Illinois court, other

jurisdictions have found that indefinitely moored floating

casinos are not vessels in navigation for purposes of the

Jones Act. Grobe, 759 N.E.2d at 159-160 (citing Pavone v.

App. 18

Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th

Cir. 1995); Chase v. Louisiana Riverboat Gaming Partner-

ship, 709 So.2d 904 (La. App. 1998)). The facts in Grobe

were similar to the facts here, i.e., the vessels were con-

nected to land-based utilities, were equipped with fire

fighting and safety equipment, and they had internal

diesel engines for propulsion. The casinos maintained a

captain and crew but, although capable of cruising, never

left their moorings after Illinois law changed on June 26,

1999. As Plaintiffs point out, however, the casinos in

Grobe were confined to a portion of the Fox River between

the Illinois Avenue and New York Avenue bridges, and

neither casino could have physically passed beneath either

bridge.

The Court is mindful of the standard for summary

judgment under Rule 56. Under the well-settled standard,

summary judgment is proper “if the pleadings, deposi-

tions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c); Cox v. Acme Health Servs., Inc., 55 F.3d

1304, 1308 (7th Cir. 1995). A genuine issue of material fact

exists for trial when, in viewing the record and all reason-

able inferences drawn from it in a light most favorable to

the nonmovant, a reasonable jury could return a verdict

for the nonmovant. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). The movant bears the burden of

establishing that there exists no genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant meets this burden, the nonmovant must

set forth specific facts that demonstrate the existence of a

genuine issue for trial. FED. R. Civ. P. 56(e); Celotex, 477

Pe age ee ee

App. 19

U.S. at 324. Rule 56(c) mandates the entry of summary

judgment against the party “who fails to make a showing

sufficient to establish the existence of an element essential

to the party’s case, and in which that party wili bear the

burden of proof at trial.” Celotex, 477 U.S. at 322. As the

Supreme Court stated in Anderson, “there must be evi-

dence on which the jury could reasonably find for the

[nonmovant].” Anderson, 477 U.S. at 250. Weighing

evidence, determining credibility, and drawing reasonable

inferences are jury functions, not those of a judge deciding

a motion for summary judgment. Anderson, 477 U.S. at

255.

The Supreme Court has said repeatedly that seaman

status under the Jones Act is a question of fact for a jury.

See Wilander, 498 U.S. at 355. Although better character-

ized as a mixed question of law and fact, “[i]f reasonable

persons, applying the proper legal standard, could differ as

to whether the employee was a ‘member of a crew,’ it is a

question for the jury.” Id. at 356 (quoting Anderson uv.

Liberty Lobby, Inc., 477 U.S. at 250-251).

The Court notes that the Seventh Circuit has stated

in dicta that if a casino is indefinitely moored, “its status

as a vessel in navigation would be doubtful.” Weaver uv.

Hollywood Casino-Aurora, Inc., 255 F.3d 379, 387-388 (7th

Cir. 2001) (citing Pavone, 52 F.3d at 570). The Seventh

Circuit noted, however, that there is difference of opinion

on “when floating casinos which travel on a river are Jones

Act vessels.” Weaver, 255 F.3d at 389. The Weaver Court

remanded the case for the district court to determine

whether the plaintiff was employed on a boat “with the

requisite relationship to navigable waters for purposes of

the Jones Act.” Jd. at 387.

App. 20

In Weaver, a slot machine attendant was injured on

board the City Lights I, a riverboat casino owned by

Hollywood Casino-Aurora, Inc. In that case, the parties

had stipulated that the Fox River on which the vessel was

located was navigable generally, but the record reflected

that the small portion of the river where the accident

occurred was not navigable because there was a dam on

one side and a bridge on the other. The Seventh Circuit

raised the issue of subject matter jurisdiction sua sponte

and remanded the case with directions for the district

court to examine its subject matter jurisdiction.

The instant case is distinguishable from Weaver.

First, there is no indication that the M/V Players II could

not navigate if and when the owners decided that it

should. In fact, it arrived at its Metropolis location under

its own power and it left in the same way. The vessel could

have cruised at any time, even though Players states that

its intention was not to do so. In this manner, the instant

case is also different from the cases upon which Plaintiffs

rely, such as Grobe, Pavone, and Chase. For instance,

unlike the M/V Players II, the vessel in Pavone, the Biloxi

Belle, had no engine, no captain, no navigational aids, no

crew quarters, and no lifesaving equipment. Pavone, 52

F.3d at 564. It was fitted with only a decorative pilot house

containing no operating parts. Jd. It did not have a steer-

ing mechanism but was decorated with an antique wheel.

Id. The ring buoys on it were for purely visual effects and

not intended for lifesaving. Id.

Similarly, the vessel in Chase, the Lady of the Isle,

was permanently moored in a containment pond adjacent

to the Red River. See Chase, 709 So.2d at 910. After its

arrival in Shreveport, Louisiana, it never left the contain-

ment pond and did not operate on navigable waters at all;

App. 21

it was even exempt from the Louisiana Riverboat Eco-

nomic Development and Gaming Control Act’s cruising

requirements. Jd. Unlike the Players II, the Lady of the

Isle needed permission from the United States Corps of

Engineers to leave its mooring. Id.

The Seventh Circuit has previously found that an

“injured employee does not cease becoming a member of a

crew if the vessel is docked or anchored at the moment of

injury.” Johnson, 742 F.2d at 1065, overruled on other

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

(1991). Specifically, by quoting a Third Circuit decision,

the Seventh Circuit noted,

As properly construed, the “in navigation” re-

quirement is used in its broad sense, and is not

confined strictly to the actual navigating or

movement of the vessel, but instead means that

the vessel is engaged as an instrument of com-

merce or transportation on navigable waters. [Ci-

tation omitted]. Indeed, so long as the vessel is

upon navigable waters, an injured Jones Act

seaman may recover for injuries suffered while

on the wharf. [Citation Omitted].

Johnson, 742 F.2d at 1063-64, (quoting Griffith v. Wheel-

ing Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir. 1975)).

Here, there is no doubt that the M/V Players II was

engaged as an instrument of commerce on navigable

waters. It is only by virtue of its status as a vessel that the

M/V Players II can operate as a gambling casino. See 230

ILCS 10/3-10/4. Thus, the Court does not agree that its

moored status removed it from Jones Act coverage at the

time of injury. The M/V Players II was not in drydock

undergoing major overhauls or renovations. See Chandris,

515 U.S. at 374. It remained ready for another voyage; it

App. 22

remained as an instrument of commerce while dockside

gaming took place on navigable waters.

Finally, although it is rare that this Court finds an

action suited for an interlocutory appeal, the Court be-

lieves that this issue “involves a controlling question of

law as to which there is substantial ground for difference

of opinion and that an immediate appeal from [this order]

may materially advance the ultimate termination of the

litigation.” See 28 U.S.C. § 1292(b). This issue presents a

controlling question of law which has not yet been decided

in the Seventh Circuit. It is highly contestable, and resolu-

tion of the issue will expedite the resolution of the litiga-

tion. See Boim v. Quranic Literacy Inst. and Holy Land

Found. for Relief and Dev., 291 F.3d 1000, 1007 (7th Cir.

2002). This is particularly true in light of the fact there are

47 plaintiffs in this case and a trial will be held on each

claim. A determination as to whether those plaintiffs who

were employed aboard the M/V Players II at the time of

injury were Jones Act seamen as pivotal to the action’s

future. Accordingly, this Court certifies the issue for

appeal.

ON I

For the foregoing reasons, Defendants’ motions for

summary judgment (Docs. 61, 68) are DENIED, and the

Court CERTIFIES the following issue for interlocutory

appeal to the United States Court of Appeals for the

Seventh Circuit pursuant to 28 U.S.C. § 1292(b):

Was the M/V Players II a vessel in naviga-

tion on July 28-29, 2000, such that the plain-

tiffs who were employed on board the M/V

Players II were Jones Act seamen?

ra.

App. 23

This action is STAYED until further Order of this

Court. All previously imposed deadlines and settings are

VACATED.

IT IS SO ORDERED.

DATED this 19th day of August, 2002.

/s/ G. Patrick Murphy

G. PATRICK MURPHY

Chief United States

District Judge

App. 24

APPENDIX D

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

May 17, 2004

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Nos. 02-3818 & 02-3819

JOHN HOWARD, et al.,

Plaintiffs-Appellees,

vz.

SOUTHERN ILLINOIS

RIVERBOAT CASINO

CRUISES, INC., d/b/a

PLAYERS ISLAND

CASINO,

Defendant, Third-

Party Plaintiff-

Appellant,

TRIANGLE ENTERPRISES,

INC., d/b/a TRIANGLE

INSULATION AND SHEET

METAL COMPANY,

Third-Party

Defendant-Appellant.

Appeals from the United

States District Court for

the Southern District of

Illinois.

Nos.

00 C 4321 & 01 C 4299

G. Patrick Murphy,

Chief Judge.

App. 25

ORDER

On consideration of the Petition for Rehearing and

Suggestion for Rehearing En Banc filed by counsel for the

Plaintiffs-Appellees on May 3, 2004, all members of the

original panel voted to DENY rehearing, and no judge in

regular active service requested a vote on rehearing en banc.

Accordingly, It Is ORDERED that the Petition for Rehear-

ing and Suggestion for Rehearing En Banc be, and the same

is hereby, DENIED.

App. 26

APPENDIX E

46 U.S.C. app. § 688. Recovery for injury to or

death of seaman

(a) Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right of

trial by jury, and in such action all statutes of the

United States modifying or extending the common-law

right or remedy in cases of personal injury to railway

employees shall apply; and in case of the death of any

seaman as a result of any such personal injury the

personal representative of such seaman may maintain

an action for damages at law with the right of trial by

jury, and in such action all statutes of the United

States conferring or regulating the right of action for

death in the case of railway employees shall be appli-

cable. Jurisdiction in such actions shall be under the

court of the district in which the defendant employer

resides or in which his principal office is located. Mar.

4, 1915, c. 153, § 20, 38 Stat. 1185; June 5, 1920, c.

250, § 33, 41 Stat. 1007.

App. 27

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINO1S

BENTON DIVISION

JOHN HOWARD, ROY FORD,

JUDY GRIMES, BONNIE

SHELTON, WILMA LOTT,

JOAN MISCH, VIRGINIA

MADDEN, PATRICIA

LEDSINGER, VALERIE

CARROLL, SHIRLEY JOHNSON,

GRACE ALEXANDER, JERRIE

BELCHER, CECELIA COOK,

ANITA CLAYTON, TROY DAVIS,

DEBRA EASTWOOD, JOHN

GREGG, THOMAS GRIMES,

DANA HOCKER, BRECIA HUIE,

KATHY LAY, KENNETH

LITCHFORD, ROBIN LITTLE,

GEORGE MABREY, J. RICHARD

MATHENY, KEITH PLUMLEE,

KITTY POLOVINA, ZENON

RODRIGUEZ, JULIA SALYER,

PAMULA SHINN, PAMELA

TAYLOR, BELINDA THOMAS,

MICHAEL THOMAS, NANCY

WILLIAMS, LORI WURTH,

Plaintiffs,

No: 00-4321 GPM

(Filed Jun. 7, 2002)

SOUTHERN ILLINOIS

RIVERBOAT/CASINO CRUISES,

INC., d/b/a Players Riverboat

Casino; and HARRAH’S

a, A a a a a a a a a a a a a, ae _ aa a 4 4 a a a a a a a a ee

App. 28

ILLINOIS CORPORATION,

a Nevada Corporation,

Defendants/Third Party

Plaintiffs,

TRIANGLE INSULATION AND

SHEET METAL COMPANY

PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

COME NOW the plaintiffs, John Howard, et al., by

and through their undersigned counsel, and hereby re-

spond to Defendant’s Motion for Summary Judgment as

follows:

Despite initiating this matter by filing a Limitation of

Liability proceeding and despite paying maintenance and

cure to several plaintiffs in this action, defendants now

move for summary judgment claiming that the M/V

Players II is not a vessel in navigation. This motion is

without merit. There is no real dispute that the M/V

Players II is a “vessel”. There is no dispute that the M/V

Players II was an instrument of commerce on water at all

relevant times in that gaming activity took place even

while the vessel was moored. (Affidavit of John Howard

attached as Exhibit 8). There is no dispute that plaintiffs

are members of the crew of the vessel and contribute to its

mission as a gaming vessel. At the time of this incident

and continuing until it was replaced, the M/V Players II

maintained a full-time marine crew, remained a Coast

Guard licensed passenger vessel that could leave the dock

and cruise on the open river within 15-20 minutes and in

App. 29

2001, actually did cruise to a dock outside Houston, Texas

where it is now being held for sale. For these reasons and

others which will be discussed after a brief review of the

facts, Defendants’ motion must fail.

FACTS

At all relevant times, the M/V Players II was a river-

boat casino located on the Ohio River in Maasac County,

Illinois. (Affidavit of Jeff Pfeiffer, paragraph 2). Defendant

does not contend that the Ohio River is not a navigable

waterway of the United States. To begin operations in

Illinois, the M/V Players II was brought from Lake

Charles, Louisiana under its own power with two assist

boats (Deposition of George Carpenter pp 5-6, attached

hereto as Exhibit 1). In September of 2001, the M/V

Players II was replaced by the M/V Harrah’s Northstar

and moved to Texas under its own power. (Defendant’s

Responses to Request to Admit paragraph 9 & 10).

The M/V Players II was a U.S. Coast Guard inspected

vessel which employed a captain and crew qualified to

navigate the vessel. (Request to Admit Par 2, 11 and 12).

As a Coast Guard inspected vessel, the M/V Players II was

required to carry the following documentation: Certificate

of Inspection, Certificate of Documentation, Certificate of

Financial Responsibility (water pollution), Ship/Aircraft

Radio Station License, Tonnage Certificate, and a stability

letter. (Attached hereto as Exhibits 2-7). The U.S. Coast

Guard does nothing whatsoever with regard to the gaming

function of the vessel. (Carpenter deposition p. 11).

According to the September 28, 2001, Certificate of

Inspection, the M/V Players II is required to have a mini-

mum crew of a master, chief engineer, nine deckhands and

App. 30

four watchmen. Additionally, the Coast Guard required

that the M/V Players II have two rescue boats, eight

inflatable rafts, 1904 life preservers, and six ring buoys,

along with particular fire fighting equipment.

The M/V Players II left the dock during Coast Guard

inspections. (Carpenter Deposition p. 24). The vessel was

required to do weekly man overboard, fire and emergency,

abandon ship and allision or collision drills. (Id. p. 25); the

vessel was also required to do a monthly emergency

generator test. (Jd. p 25).

To cruise, the crew simply had to disconnect the vessel

from the dock, which could be accomplished in as little as

15-20 minutes. Jd. p. 31. In July and August of 2000, there

was nothing about the river which prevented the vessel

from cruising. (Jd. p. 32). Further, the vessel’s engine and

navigational aides were all fully functional in July and

August 2000. (Jd. p.37).

Finally, Defendant has never notified the Coast Guard

of an intent to surrender its Certificate of Inspection, nor

has the vessel ever applied for permanent mooring status.

BACKGROUND: SEAMAN STATUS

The Jones Act (46 U.S.C. Section 688) provides bene-

fits to the members of the crew of a vessel for injuries

resulting from employer negligence. McDermott Interna-

tional Inc. vs. Wilander, 498 U.S. 337, 347, 112 L.Ed.2d

866, 111 S. Ct. 807 (1991). In Wilander, the Supreme Court

approved the seaman status test first formulated by the

Fifth Circuit in Offshore Co. v. Robison, 266 F.2d 769, 779

(5th Cir. 1959):

App. 31

“There is an evidentiary basis for a Jones Act case to

go to a jury

(1) If there is evidence that the injured work-

man was assigned permanently to a vessel

(including special purpose structures not

usually employed as a means of transport by

water but designed to float on water) or per-

formed a substantial part of his work on the

vessel;

and

(2) if the capacity in which he was employed or

the duties which he performed contributed

to the function of the vessel or to the accom-

plishment of its mission, or to the operation

or welfare of the vessel in terms of its main-

tenance during its movement or during an-

chorage for its future trips.” 266 F.2d at 779

(emphasis added)

Defendant’s motion fails to acknowledge the italicized

portion of the seaman status test. Defendant’s argument is

premised on the clearly erroneous assumption that the

M/V Players II loses its status as a vessel (and, so the

argument goes, plaintiff thereby loses her status as a

seaman) during the time the vessel is berthed or moored.

An argument remarkably similar to that advanced by

defendant was rejected by the Eastern District of Louisi-

ana: “Defendant’s argument that plaintiff did not contrib-

ute to the vessel’s mission because she never went to sea

on the yacht ignores Robison which includes workers who

contribute to the vessel’s mission ‘during anchorage’.

Defendant further attempts to persuade the Court that

‘contribute to the mission of the vessel’ is just another way

of saying the plaintiff must ‘aid in the navigation’ of the

App. 32

vessel, and therefore relies heavily on pre-Robison Fifth

Circuit authority and Third and Ninth Circuit authority.

This argument has no merit.” Lunsford v. The Fireman’s

Fund Insurance Co., 635 F.Supp. 72, 74 (E.D.La. 1986)’

Defendants make no challenge in their motion to

Plaintiffs’ assignment or contribution to the vessel. Accord-

ingly, those issues are not addressed herein as Plaintiffs’

Complaint alleges that plaintiffs were “members of the

crew” of the vessel.

I. A Vessel Remains “In Navigation” While

Berthed or Even In Dock

Congress has defined a vessel to include “every

description of water craft or other artificial contrivance

used, or capable of being used, as a means of transporta-

tion on water.” 1 U.S.C. section 3. The Supreme Court has

held that even “[a] barge is a vessel within the meaning of

the [Jones] Act even when it has no motive power of its

own, since it is a means of transportation on water.”

Norton v. Warner Co., 321 U.S. 565, 571, 64 S.Ct. 747

(1944). Because the M/V Players II has its own motive

power and cruises, even if only for Coast Guard Inspec-

tions, the gambling boat is unquestionably a vessel.

It is well established that a vessel is “in navigation”

while moored in navigable waters. Senko v. LaCrosse

Dredging Co., 352 U.S. 370, 373, 1 L.Ed.2d 404, 77 S.Ct

' Lunsford was decided before the Supreme Court’s decision in

Wilander, supra. Wilander provides additional support for the Lunsford

court’s analysis because Wilander definitively abolished the “aid to

navigation” requirement.

RR gt 4s hey re

App. 33

415 (1957). The Supreme Court there rejected an argu-

ment congruent with that advanced by defendant in the

instant case:

“Whether petitioner would be a member of the

dredge’s crew while taking soundings during a

trip is certainly a jury question. If he were a

member during travel, he would not necessarily

lack that status during anchorage. Even a trans-

oceanic liner may be confined to berth for lengthy

periods, and while there the ship is kept in re-

pair by its ‘crew’. There can be no doubt that a

member of its crew would be covered by the Jones

Act during this period, even though the ship was

never in transit during his employment”. 352 U.S.

370, 373 (emphasis added).

Defendant’s reliance on Chandris, Inc. v. Latsis, 515

U.S. 347, 132 L.Ed. 2d 314, 115 S.Ct. 2172 (1995) is

misplaced. Defendant apparently reads Chandris to hold

that Latsis was not a seaman. In fact, the Court reversed

that finding. The court actually held that the jury should,

have been instructed to consider the time the vessel was in

dry-dock (and therefore completely out of the water) as

well as when it was cruising to determine whether plain-

tiff was a seaman. The jury had found that the plaintiff

was not a seaman based on an instruction that told them

“that in determining whether Mr. Latsis performed a

substantial part of his work on the vessel, you may con-

sider the period of time the Galileo was in dry-dock in

Germany, because during that time period she was out of

navigation.” This is exactly the point on which the Court

reversed.

The Chandris holding is a tacit approval of the Sev-

enth Circuit’s vessel analysis in Johnson v. John F Beasley

App. 34

Construction Co., 742 F.2d 1054, 1063-1064 (7th Cir. 1984),

overruled on other grounds, McDermott International, Inc.

v. Wilander, 498 U.S. 337, supra.” The Seventh Circuit

there held that “the injured employee does not cease

becoming a member of a crew if the vessel is docked or

anchored at the moment of injury. ‘As properly construed,

the “in navigation” requirement is used in its broad sense,

and is not confined strictly to the actual navigating or

movement of the vessel, but instead means that the vessel is

engaged as an instrument of commerce or transportation

on water. [Citation omitted.] Indeed, so long as the vessel

is upon navigable waters, an injured Jones Act seaman

may recover for injuries suffered while on the wharf.”

Johnson, 742 F.2d 1054, 1063-1064 (emphasis added). The

Seventh Circuit’s test for vessel status is disjunctive:

either an instrument of commerce or of transportation on

water. Defendants’ motion completely ignores the Seventh

Circuit’s specific alternative test for vessel status as “an

instrument of commerce” on water.

The Supreme Court in Chandris agreed with the

Court of Appeals that the district court had erred in

concluding that the vessel was not “in navigation” while it

was in dry-dock. “Under our precedent and the law pre-

vailing in the Circuits, it is generally accepted that ‘a

vessel does not cease to be a vessel when she is not voyag-

ing, but is at anchor, berthed, or at dockside.” 515 U.S. at

376, quoting Digiovanni v. Traylor Bros., Inc., 959 F.2d

1119, 1121 (1st Cir.) (en banc), cert. denied, 506 U.S. 827,

121 L.Ed. 2d 50, 113 S.Ct. 87 (1992). The Court further

? Wilander rejected the Beasley court’s adoption of the aid in

navigation requirement to seaman status.

Ping a yh SSN RRO OM BO

ii lat

App. 35

noted that “likewise a vessel is in navigation, although

moored to dock, if it remains in readiness for another

voyage.” 515 U.S. at 374, quoting 2 M. Norris, Law of

Seamen §30.13, p.364. It is only when a vessel is “trans-

formed through ‘major’ overhauls or renovations” that it

ceases to be “in navigation.” 515 U.S. at 374. The Court

noted that at a six month period in which a vessel is out of

service was relatively minor by maritime standards. Id.;

cf. McCarthy v. The Bark Peking, 716 F.2d 130, 136 (2d

Cir. 1983) (museum ship permanently moored for over 50

years with rudder welded in place was still a vessel

because it rested on navigable waters and could return to

sea, even if only in tow). This analysis is even more appli-

cable when the vessel in question remains in commerce

(i.e, making money from gaming) while the vessel is

docked.

Thus, the affidavit of Jeff Pfeiffer, on which defendant

principally relies for its factual support, completely misses

the mark. George Carpenter has testified that, to cruise,

the crew simply has to disconnect the riverboat from the

dock, which takes, at most 15-20 minutes. (Carpenter

deposition at p 31). The fact that in order for the casino to

leave the dock, it must disconnect from land based utilities

(Pfeiffer Affidavit, Par 7) pales in comparison to the six

months specifically approved by the Supreme Court in

Chandris and the fiity years in McCarthy. See also Stew-

art v. Magnum Transcontinental Corp., 81 F.Supp.2d 753

(S.D. Tex. 2000) (vessel undergoing repairs at dock for ten

months remains a vessel): see also Thompson v. Kerr.

McGee Oil & Gas Corp., 1999 U.S. Dist. Lexis 2065

(E.D.La. 1999) (plaintiff assigned to vessel for one seven

day hitch during which vessel was always anchored

App. 36

qualified as seaman). Under Chandris, the M/V Players II

remained a vessel during the times it was berthed.

Il. Grobe, Pavone, and Chase Are All Distinguish-

able From The M/V Players Il Unique Situation

And, Therefore, The Results Therein Do Not

Control Here.

None of the authority cited by Defendant control the

facts of this case. In Grobe, for example, the record was

devoid of any evidence that the riverboat had ever left its

moorings, for any reason, after June 1999. That is simply

not the case here. Also, In Grobe, there was absolutely no

evidence that the casino would ever cruise again. The M/V

Players II cruised to Texas under its own power in 2001,

(Carpenter depo p.34).

Finally, the Grobe casino was confined to a specific

portion of the Fox River less than a mile long between two

bridges because the riverboat could not pass beneath

either bridge. Grobe, 259 Ill. Dec. at 676. In this case, on

the other hand, George Carpenter, testified that that [sic]

except in high water conditions which caused problems

with a railroad bridge, the M/V Players II could cruise,

and in fact, did cruise, the Ohio River at will. (Carpenter

deposition at pp. 37,35&43).

Pavone v. Mississippi Amusement Corp., 52 F.3d 560

(5th Cir. 1995) is not even close. Unlike the M/V Players

II, the Biloxi Belle had no engine, no captain, no naviga-

tional aids, no lifesaving equipment, no working steering

mechanism, and it was not constructed to be, nor has it

ever been, used as a seagoing vessel to transport passen-

gers across navigable waters. Id. at 564. The Biloxi Belle

had a pilot house, ring buoys, and a motorized paddle

App. 37

wheel, all for purely visual effects, and in order to move, it

had to be towed because it could not move about on its own.

Id. Moreover, all the workers on the Belle were employed

solely in connection with the casino, operation. Jd. at 564-

65.

Chase v. Louisiana Riverboat Gaming Partnership,

709 So.2d 904 (La.App. 1998) similarly misses wide of the

mark. The Chase court dealt with a riverboat casino that,

unlike the M/V Players II, was indeed permanently

moored. The Lady of the Isle sailed from its construction

site to a containment pond adjacent to the Red River. Id.

at 906-07. Unlike the M/V Players II, the riverboat had not

left its moorings since it arrived in the pond. Jd. at 906.

Although the casino could be unmoored and moved into

the Red River, the process to do so bares no resemblance to

the M/V Players II’s quick-disconnect policy:

[First], it would be necessary to disconnect the

[Lady of the Isle] from all its land based utility

sources and to disconnect its steel cable mooring

lines from the cement pilings inside the slip. Sec-

ond, it would be aecessary to obtain a dredging

permit from the [U.S.] Army Corps of engineers,

as well as permits to allow dumping of 25 tons of

rock (and of the accumulated silt and dirt levee

constructed by the Red River). Third, diving

teams would be required to disconnect steel pins

holding the four steel buttresses, which support

the steel wall, and to remove the rubber liner in-

side of the wall. Finally, a crane barge of at least

100 ton capacity would be required to lift the

steel wall and the four steel buttresses out of the

water. Such a procedure would require ap-

proximately two to three months and cost

between $500,000.00 and $1 million. Id. at

906 (emphasis added).

App. 38

Grobe, Pavone, and Chase can and should be distin-

guished on their facts when compared to this case. Unlike

the M/V Players II, none of the crafts in those cases looked

and acted like a vessel. Accordingly, Defendant’s Motion

should be denied. Moreover, despite these major differ-

ences, Grobe remains erroneous in its reasoning in light of

the Supreme Court decisions discussed above.

III. Defendants’ statement of its intent to perma-

nently moor the vessel is contradicted by its

actions.

The M/V Players II’s self serving statement of its

intent to permanently mour [sic] the vessel is contradicted

not only by the admissions of Jeff Pfeiffer and George

Carpenter as set forth above, but it is also contradicted by

the conduct of the defendant throughout this litigation.

First, Players initiated this action by filing a Limita-

tion of Liability proceeding in this court. Consistent with

that judicial admission, the M/V Players II paid certain

plaintiffs in this matter maintenance and cure, remedies

specifically provided only to injured seaman under mari-

time law. (Affidavit of John Howard attached hereto as

Exhibit 8).

Moreover, despite the repeated claims that the vessel is

permanently moored, there can be no dispute that at a

minimum the M/V Players II left its moorings during the

quarterly and annual Coast Guard Inspections. (Carpenter

Deposition at p. 24). Additionally, in September 2001, the

M/V Players II was replaced by the M/V Harrah’s North-

star. (Response to Request for Admission No. 9). At that

time, the M/V Players II traveled under its own power with

no assistance to a dock in Texas (Carpenter Deposition at p.

Kaesede

+ npayaele, 7

Be ee UP ye Fee Le ae ee een eee oe a ee RPO LS,

LE ALM ERLEPE PINS

App. 39

34). Further the M/V Players II never relinquished its

certificate of inspection, nor has it ever applied for perma-

nent mooring status with the United States Coast Guard.

Finally, the M/V Players II floats on the Ohio River, not a

man-made lagoon, and remains subject to the common

perils associated with river traffic. This conclusion is

borne out by the presence of the vessel’s life jackets, rescue

boats, eight inflatable rafts, and ring buoys as well as the

vessel's man-overboard and collision/allision drills, which

are only necessary because the persons on board the vessel

are exposed to the perils of the sea.

A recent Missouri decision, cited approvingly in Grobe,

further explains that a casino’s self-serving statement of

its intent to permanently moor a riverboat is not determi-

native of whether the riverboat remains a vessel in navi-

gation. Davis v. Missouri Gaming Company at 168 174

(Mo. App. W.D. 2001). In Davis, the Argosy IV riverboat

was placed in a man-made lagoon adjacent to the Missouri

River after the riverboat obtained permission to stop

cruising. Jd. at 172. From that point on, there was no

evidence that the riverboat had ever left its moorings. Id.

at 173 n. 5. And the Argosy IV’s chief engineer testified

that the casino had no plans to ever remove the riverboat

from its moorings in the future. Jd. at 174.

Nevertheless, the court concluded that the casino’s

intent was contradicted by its actions. First, the casino

treated the plaintiff as an injured seaman by paying her

from the moment she was injured “maintenance and cure”

— one of the remedies under maritime law. Id. Second, the

casino maintained a full marine crew, its Coast Guard

certification, and retained its capability to cruise until two

years after the plaintiffs injury. Jd. It was only then that

the casino relinquished its Certificate of Inspection and

applied for permanent mooring status from the Coast

App. 40

Guard. Id. at 175. Based on the above, the court reversed

summary judgment in favor of the casino. The court held

that these facts created an issue of fact as to the casino’s

intention or belief that the riverboat was permanently

moored at the time of the plaintiff’s injury. Id.

In summary, if a structure looks like a vessel and acts

like a vessel, it’s a vessel “in navigation” under the Jones

Act. The M/V Players II looks like a vessel and acted like a

vessel at the time of Plaintiffs’ injury.

CONCLUSION

The purpose of the Jones Act is to provide heightened

legal protection to seamen injured in the course of em-

ployment because seaman are exposed to the “peril of the

sea.” Grobe, 259 Ill.Dec, at 678 (citing G. Gilmore & C.

Black, Law of Admiralty Sec. 6-21, at 328-29 (2d. ed.

1975). As set forth above, Plaintiffs were subject to mari-

time disasters, runaway barges, burning docks, and the

rising tides of the Mississippi during their employment

with Defendant. In addition, the M/V Players II cruised as

required by the Coast Guard and Cruised to Texas when it

was replaced. Accordingly, Plaintiffs were seamen on a

vessel “in navigation” under the Jones Act. Defendants’

Motion should, therefore, be denied.

THE LAKIN LAW FIRM, P.C.

By: /s/ Gerard B. Schneller

Gerard B. Schneller — #06205863

Attorney for Plaintiff

301 Evans Avenue

Wood River, Illinois 62095

Telephone: (618) 254-1127

Facsimile: (618) 254-0193

App. 41

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy

of the above and foregoing instrument was hand delivered

this 6th day of June 2002

Gordon Broom

P.O. Box 510

Two Mark Twain Plaza

103 West Vandalia Street

Suite 300

Edwardsville, IL 62025

Ron Fox

One Memorial Drive

Eighth Floor

St. Louis, MO 63102

/s/ Deborah Ramrez

on the 6th day of June, 2002

App. 42

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

BENTON DIVISION

JOHN HOWARD, et al.

Plaintiffs

SOUTHERN ILLINOIS

RIVERBOAT/CASINO CRUISES,

INC., d/b/a Players Riverboat

Casino; and HARRAH’S

ILLINOIS CORPORATION,

a Nevada Corporation,

Defendants/Third-Party

Plaintiffs,

No: 00-4321 GPM

vs.

TRIANGLE INSULATION AND

SHEET METAL COMPANY,

Third-Party Defendants.

Nee ee eee eae ee ae eS

The 30(b)(6) deposition of GEORGE A. CARPENTER,

taken by the Plaintiffs pursuant to Notice on Monday, the

20th day of May, 2002, at the hour of 12:00, at the offices

of Harrah’s Casino, in the City of Metropolis, County of

Massac, State of Illinois, before me, Elizabeth Miller, RPR,

RMR, CSR (IL), to be used for all purposes allowed under

the Federal Rules Of Civil Procedure.

Registered Professional Reporters

WEST KENTUCKY REPORTING SERVICE, INC.

bis

AF NA EAE TR, Ae AC OTR.

NEALE CREM

Seg eeu

App. 43

Certified Shorthand Reporters

1324 JEFFERSON STREET

PADUCAH, KY 42001 FAX:

[2] APPEARANCES

For Plaintiff: MR. GERARD B. SCHNELLER

of the LAKIN LAW FIRM

301 Evans Avenue

P.O. Box 229

Wood River, IL 62095-0229

For Defendants/ MR. STEPHEN P. NIEMIRA

Third-Party of the law firm of

Plaintiffs: FOX GALVIN

One Memorial Drive

Eighth Floor

St. Louis, MO 63102

For Third-Party MR. GREGG A KINNEY

Defendants: of the law firm of

BURROUGHS, HEPLER,

BROOM, MacDONALD,

HEBRANK & TRUE

103 West Vandalia Street

Suite 300

Edwardsville, IL 62025-0510

Also Present: Mr. Jeff Pfeiffer

INDEX

GEORGE A. CARPENTER Direct Cross

By Mr. Schneller: 3

SIGNATURE OF DEPONENT: 45

ERRATA SHEET: 46

CERTIFICATE OF REPORTER: 47

PHONE:

(270) 443-9631

(270) 443-9561

App. 44

EXHIBITS

Number Description Page

Plf. 1 Affidavit of Jeff Pfeiffer 3

Pif. 2 Certificate of Inspection, 3

Certificate of Documentation,

Certificate of Financial Responsibility,

FCC Radio Station License, Tonnage

Certificate, Stability Letter

[3] (Plaintiffs’ Deposition Exhibits Nos. 1 and 2

marked for identification by the reporter.)

The witness, GEORGE A. CARPENTER, after first

having been duly sworn, testified as follows:

MR. SCHNELLER: Before we start, for the

record, the Burroughs firm has been noticed for the depo

for noon. It’s 10 after 12:00. We attempted to call their

office, got voice mail from secretaries and lawyers alike. So

we're going to go ahead and start the depo.

DIRECT EXAMINATION BY MR. SCHNELLER:

Will you state your name, please?

George A. Carpenter.

And your home address, sir?

7530 Stacey Lane.

Date of birth?

5-9-51.

And social security number?

r OP O&O Fr © PP

400-76-7518.

App. 45

Q. How are you presently employed?

A. Director of facilities.

Q. At?

A. Harrah’s Metropolis Casinos.

[4] Q. Prior to working for Harrah’s, where did you

work?

A. Waterfront services.

Q. Okay. Is that in Cairo?

A. Cairo.

Q. All right. How long have you worked for Har-

rah’s?

A. Since 1993.

Q. Okay.

A. February.

Q. Did you work for - when this was previously the

Players facility, did you work here then?

A. Yes.

Q. During the time that Players operated this

facility, what was your job title?

A. Director of marine operations.

Q. The whole time Players was here — or that you

were at Players, I should say — were you the director?

A. No. From probably around ’95 on, or ’94.

Q. Director of marine operations?

App. 46

A. Yes, sir.

Q. Okay. And prior to that, what was your job title?

A. Captain.

[5] Q. Along with being the director of marine

operations when this facility was Players, did you work as

a captain as well?

A. Yes.

Q. So you did both things?

A. Yes.

Q. And I guess you would have been what some

would call the senior captain?

A. Yes.

Q. All right. Just so we're clear on time frames,

when did this become Harrah’s?

A. Not exactly sure.

Q. Have you got a rough guesstimate?

A. 1999, 2000.

Q. All right.

A. Late ’99.

Q. [Tm going to ask you questions about the PLAY-

ERS CASINO II, okay? When did that vessel begin its

operation here?

1995, fall.

Do you know where it came from?

App. 47

A. Lake Charles, Louisiana.

Q. And was it operating as a casino boat there?

A. Yes.

Q. Was it a Players Vessel in Lake Charles?

: [6] A. Yes.

; Q. How did the vessel get from Lake Charles to

: here?

A. Under its own power with two assist boats.

Q. All right. What did the assist boats do?

A. Pushed and helped steer.

Q. Why did it need the assist boats?

Swift current and time.

Q. When you say time, I guess what you mean is it

got up here faster?

A. Yes

Q. All right. And where was the problem with the

Swift Current? Was there a particular area?

A. From New Orleans to Metropolis.

Q. All right. Was there a particularly high water

period?

A. No. It was average river conditions.

Q. Okay. I guess my question is, what swift current

conditions caused there to be assist boats?

A. Well, lack of power on that boat.

App. 48

Q. All right. And you say all the way to here. Up the

Ohio?

A. From — not all the way here. I think we let one go

at Cairo and one go around Future City [7] or a little

above.

Q. Okay. Can you explain to me what the assist

boats do when the vessel is brought from Lake Charles to

the Cairo area or metropolis? Are they assisting at all

times?

A. Yes. Well, not all the way to Metropolis. Like I

say, the last one left at Future City.

Q. How was the vessel crewed on the way up here?

A. With a full marine crew.

Q. Can you describe what that is?

A. One captain — well, actually, two captains, two

mates, two chief engineers, two oilers, and a minimum of

eight deckhands.

Q. Did you participate in that transfer?

A. Yes.

Q. Were you actually on the boat?

A. Yes.

Q. And I guess you would have been the senior

captain?

A. Yes.

App. 49

Q. All right. I noticed in looking at the boat that it

had those fancy fake — what I call fake smokestacks on the

top deck.

A. Yes.

Q. Were those in place when the vessel was brought

[8] from Lake Charles to metropolis?

A. No.

Q. That was something that was put on once it got

here?

A. Yes.

Q. At the time the vessel was brought to Metropolis

in 1995 — as your best guess, I think — what sort of certifi-

cate or licensure did it have?

A. It was a Coast Guard-inspected vessel.

Q. All right. And I guess because it was in Lake

Charles, it hadn’t been inspected for quite some time

there?

A. Since it was built.

Q. You didn’t have to have any sort of temporary

inspection or temporary licensure?

A. No.

Q. Once the PLAYERS II was brought here in 1995,

was it put directly in service?

A. It was a week or two later after it was here.

Q. I guess there were some things done to the vessel

to make it ready to work?

App. 50

A. We had a Coast Guard inspection, cleaned it up.

Q. Let’s go ahead and talk about that now. I’ve been

— today I’ve received a copy of the [9] certificate of inspec-

tion. Okay? How often are Coast Guard inspections — were

they done on the PLAYERS II?

A. Quarterly.

Q. Okay. So once every four months?

A. Yes —three months.

Q. Once every three months, I’m sorry. That’s why

I’m not a doctor. And you had to have one done right before

it began working here in the Metropolis area?

A. Yes.

Q. All right. The one that I have here, which has

been marked as Exhibit 2, looks to me like it was — well,

you can tell us when that inspection was done.

MR. NIEMIRA: Let me just clarify, Gerry.

There’s more than just the certificate of inspection here.

And while the top sheet — you’ve handed him more than

just that, so if you want him to talk about the certificate of

inspection as part of this as a group exhibit, I just wanted

to clarify that that’s what he’s talking about.

Q. Right. I’m talking about the top page on group

Exhibit 2. When was that inspection done?

[10] A. On this particular one?

Q. Yes.

A. On 4 October.

Q. Of? Can you tell?

App. 51

A. Five years prior to — or one year prior to this, so it

would have been ’01.

Q. Okay. So is that - was the PLAYERS II still in

service here in metropolis at the time that it was in-

spected?

A. Yes.

Q. I guess what I was sort of wondering is, is this an

inspection done prior to its departure from the metropolis

area?

A. This was the annual inspection that’s performed

every year regardless.

Q. All right. Let me see if I understand. You told me

that there’s a quarterly inspection, correct?

A. Yes.

Q. And then there’s also an annual inspection as

well?

A. Well, there’s four quarterly inspections, which the

final one — or the first one, any way you want to look at it

— is an annual inspection.

Q. You lost me.

[11] A. Four inspections.

Q. Yes.

A. First one would be the annual inspection, then

the quarterly, quarterly, quarterly, then an annual.

Q. All right. When the Coast Guard does their

inspections, do they do anything whatsoever with regard

to the gaming function of the vessel?

App. 52

No.

All right. I’m going to go through here, and you

tell me what’s included in this group Exhibit 2, if you

wouldn’t mind. Can you just go through here and tell me

what’s in there?

Certificate of inspection.

That’s a three-page —

Yes.

Okay.

Certificate of documentation.

All right. Explain to me what the certificate of

documentation is.

It’s a documented vessel.

All right. Is that something that you got one time,

or do you have to do that yearly?

A. You get a sticker that’s stamped on the back [12]

annually.

Q. All right. Does that come along after the annual

inspection?

A. No.

Q. Does it have anything to do with the inspections?

A. No.

Q. Okay. How do you get the stickers?

A. Through the mail.

NEE Lie Ot tA:

App. 53

Q. Okay. Do you have to do some procedure in order

to get your documentation sticker?

A. Fill out a form that basically is the same informa-

tion, no alterations, and mail it in.

Q. Okay. Is that something that’s — well, do you do

that once a year?

A. Yes.

Q. All right. And do you send that form to the Coast

Guard?

A. Send it to — this is not a Coast Guard documenta-

tion. I’m not sure where we send it.

Q. All right. What’s the next set of documents you

have in that group exhibit?

A. This is sent to the National Vessel Response

Center.

Q. All right.

[13] A. The oil pollution certificate.

Q. All right. Next thing after that?

A. Radio operator’s license.

Q. Explain to me what the radio operator’s license is

for.

A. For VHF radio.

Q. All right. Does somebody at all times have to have

a radio operator’s license?

A. Somebody? Meaning —

App. 54

Q. Yeah. Is there always somebody on board the

vessel who has to have a radio operator’s license?

A. No.

Q. Is that a license just for the vessel?

A. This is the station license.

Q. Okay.

A. That’s for the station.

Q. And is that something that you have to do annu-

ally, or is that something — is it a one-time thing?

A. I believe it’s ten years. It could — yeah, it’s a ten-

year certificate.

Q. So that doesn’t attach to the vessel? That’s just to

have the station licensed if you have a vessel here? Do you

understand what I’m [14] asking?

A. No.

Q. When you switch from the PLAYERS II to a

different boat, do you have to re-do that?

A. Get a different license.

Q. Okay. Let’s go ahead to the next document.

A. Tonnage Certificate, two pages.

Q. All right. Hold on a second, and I'll ask you a

couple of questions about that. (Pause) what’s the next

document you have there?

A. Stability letter, three pages.

Q. And what is a stability letter?

App. 55

A. A marine architect does the stability letter and

submits it to the Coast Guard, all the stability calculations

telling — concerning the weight and the draft of the vessel.

Q. Is that done when the vessel is built?

A. It’s done when it’s built and when it exceeds 2

percent of the net tonnage, or gross tonnage.

Q. You have to explain that to me. What does that

mean?

A. Any alterations to the vessel that require weight

movement or change, if it’s 2 percent of the gross weight,

then it has to be redone.

Q. All right. Do you know if that was ever done [15]

for the PLAYERS II?

A. This is the stability letter for PLAYERS II.

Did it have to be redone or —

Yes.

And when did it have to be redone?

I don’t remember the date.

Does that document —

It’s 11/18/99.

November 18, ’99?

Yes.

Q. Okay. And I would assume that’s because there

was additional weight added to the vessel somewhere?

Pr OP Oo PrP Oo PO

A. Yes.

App. 56

Q. Okay. I’m going to take all this stuff. Now, you

told me that there was four inspections and then the

annual inspection per year. Well, actually, three inspec-

tions and then the annual.

Q. All right. Got you. But there’s only one here. Does

— are the prior inspection materials not kept? Oh, here’s

the annual.

A. No. In the lower left-hand corner, the three

inspections would have been listed here.

Q. Okay. You’re talking about on page — the top [16]

page of Exhibit — group Exhibit 2, in the lower left-hand

corner, there should be — there’s an area for a signature for

those other three inspections?

A. Yes.

Q. I don’t see those, though. There’s no — nothing

there.

A. Then I would say that the boat was not inspected

after that time frame, because we took it out of service.

Q. Okay. What I’m asking you is, for the years prior

to 2001, there were inspections as well?

A. Yes.

Q. And do you not keep the documentation for those

prior years’ inspections?

A. No, we don’t keep the old documentation. We’re

not required to.

Q. Okay. You are required to keep the certificate of

inspection that’s current?

App. 57

A. Yes.

Q. All right. We’re going to have to kind of break this

up a little bit, if it’s changed. At some point, the vessel

wasn’t cruising anymore with passengers, correct?

A. Correct.

[17] Q. And I think that was sometime in June of

"99?

I believe it was before then, wasn’t it?

I'm asking you.

I don’t remember the exact date.

> Oo >

Q. All right. Just to make this easier, can we — I

think the statute passed about that time, or the regula-

tion. So can we just use June of ’99 for ease for the date?

A. Ifthat’s when the statute passed.

Q. All right. Prior to the time that the - during the

time that the boat was still cruising, what was its stan-

dard crew once it was here in metropolis?

A. One licensed master, one licensed chief engineer,

one licensed mate, one oiler, and eight deckhands, and I

believe 13 other additional crew members.

Q. Okay. What do the 13 additional crew members

do?

A. They participate in the drills. They’re active in

the drills.

Q. Okay. On other boats where I’ve encountered this,

those people are generally like security-type people that

are also deckhands in an emergency.

[18] A. Yes.

All right. What does the engineer do?

The engineer’s in charge of the engine room.

And the oiler?

Does what the engineer tells him.

Okay.

He works for the engineer.

And I assume the mate is in charge of the deck-

Yes.

And what do the deckhands do?

They paint and release the vessel from the dock

and tie the vessel off to the dock and other deckhand

duties such as trash removal.

Other than these additional required crew, the 13

people, do any of the other people have anything whatso-

ever to do with the gaming operation?

Yes.

Who is that?

Who is -

Which of those people have something to do with

the gaming function?

Do you mean directly or indirectly?

I mean directly.

App. 59

[19] A. We didn’t have any dealers or slot attendants

or anything. It was, like, security, which indirectly would

have dealings with the gaming and actually training with

the hopper fills.

Q. All right.

A. And EVS, which cleans the boat.

Q. Okay. I want to see if I understand your answer

correctly. I’m taking out of the equation the 13 additional

required crew. Okay?

A. Okay.

Q. Am I missing something? Maybe I am. It’s my

understanding that there are some people that have the

job of acting as deckhands should there be an emergency.

A. Yes.

Q. How many of the regular, everyday crew is that?

Is that four people?

A. Thirteen.

Q. Okay. Thai’s where I wasn’t sure. It has listed on

the certificate of inspection four watchmen.

A. Yes.

Q. What do they do?

A. Watch for fires.

[20] Q. Okay. Do they have anything to do with the

gaming function?

A. No.

App. 60

Q. Do the deckhands have anything to do with the

gaming function?

A. No.

Q. The chief engineer and oiler, anything to do with

the gaming function?

A. Other than provide current or power, no.

Q. Okay. How about the mate? Does he have any-

thing to do with the gaming function?

A. No.

Q. How about the master?

A. No.

Q. Okay. When the boat quit cruising, okay, when we

say that’s June of ’99 or whenever that happened to be, did

the standard crew change?

A. Yes.

Q. How did it change?

A. When the boat was considered continuously

moored —

Q. Um-hmm.

A. —we were allowed to operate without a mate and

without an oiler.

Q. Okay. Did you still have the eight deckhands?

[21] A. We had -— actually, we had nine deckhands,

and six of those could be substituted from another de-

partment.

App. 61

Q. Okay. So you went to having one more deckhand

on duty?

A. Yes.

Q. But six of those people could be fulfilling other

functions on the boat and be deckhands only if necessary?

A. Yes.

Q. Okay.

MR. NIEMIRA: It’s on the second page, if you

want to read it.

MR. SCHNELLER: All right.

Q. Watchmen, that stayed the same?

A. Yes, I believe. I would have to read it.

Q. Okay. Prior to getting the authority to go with the

lesser crew at times when you're not cruising, did you have

to go through any testing or inspection by the Coast

Guard?

A. Im not sure what the question is.

Q. Okay. When you're not cruising, you’re using a

smaller crew.

A. Yes.

Q. Okay. The way the certificate of inspection is [22]

written up, it has when cruising and when not cruising.

A. Yes.

Q. Okay. Was that the standard crew required even

prior to the continuous mooring? Did you lose me?

App. 62

A. I believe I did.

Q. Okay. When the vessel —

A. Maybe -

MR. NIEMIRA: Let him ask the question again.

Q. When the vessel switched over to not cruising

with patrons aboard —

A. Yes.

Q. - is that when this provision was put into place

that you could have —

A. Yes.

Q. —- fewer people?

A. Yes.

Q. Okay. And did you have to go through some sort of

testing prior to them granting the authority to go with

fewer people?

A. No.

Q. Did the vessel have to make a request to allow

them to use fewer personnel?

[23] A. Yes.

Q. All right. Yes. And was that a written request?

Yes.

Did you prepare that, do you know?

Yes.

YE AE SERPS RE APRS I plese ey se Ags

ka) PEN OUR RE TIASERRIEN LL ERT er nana ey eM MALE {EEN ED MLAS seen ei andre ett ha eae i gielncmere:

App. 63

Q. And did you send that request to the Coast

Guard?

A. Yes.

Q. And how did you get your response? Did they just

tell you?

A. It would have been a written response.

Q. All right. Do you know where that might be?

A. No.

Q. Okay. During the time that the PLAYERS II was

cruising, once it was up here in Metropolis with passen-

gers, was it able to go of its own accord?

A. Yes.

Q. You didn’t have to use any aid, navigational —

anything to push it, assist it?

A. No.

Q. At the point where the vessel was allowed to take

on passengers without leaving the dock, okay, from that

point forward, were there ever any cruises with passen-

gers?

[24] A. No.

Q. What I want you to do, as best you can, is go

through each and every time that the vessel has left the

dock since that date. Can you do that?

A. The vessel left the dock — no, I can’t.

Q. Let’s just go through the ones that, you can

remember. Okay?

App. 64

A. Okay. I remember doing the quarterly inspections

when we proved propulsion. We would go out about a

hundred feet and go back to the dock, and that was the

end of that.

Q. Okay.

A. And I remember the first one that we did when

the boat was — when we switched to not doing the quar-

terly inspections to only doing one annual propulsion test.

We went out about a hundred foot, and we went back in

and tied up.

Q. For some time you were going to do quarterly

propulsion testing?

A. Yes.

Q. During which the vessel would leave its moor-

ings?

A. Yes.

Q. Okay. How many of those do you think you had?

[25] A. I don’t remember.

Q. Maybe the easier way to ask you is this. When did

you switch to doing the propulsion testing only once a

year?

A. Idon’t remember the date.

MR. NIEMIRA: Try and give him your best

estimate.

A. Iwould say probably late ‘99 or early 2000.

Q. All right. so once that started happening, you’d

only have to leave the dock for the inspections once a year?

App. 65

A. Yes.

Q. Let’s talk about other than the inspections, okay,

for propulsion. Can you recall any other times the boat left

the dock?

A. No.

Q. Did the Coast Guard at any point require mari-

time disaster training?

A. Not other than our required drills.

Q. Tell me about your required drills.

A. We're required to do a man overboard, emergency

generator test, fire and emergency drill, allision or colli-

sion drill.

Q. How often?

A. Weekly on everything except the emergency [26]

generator. That’s monthly.

Q. If it’s easier to do these one by one, we can, but if

we can go through them in one big lump, let’s do it that

way. Who participates in these drills?

A. The deckhands and the 13 other additional crew

members. Deckhands, marine crew and the 13 additional

crew members.

Q. Okay. One of the drills is the collision drill?

A. Yes.

Q. And obviously, that’s if some other vessel were to

come into contact with the PLAYERS II?

App. 66

A. That would be the allision drill, which is the same

thing, same drill.

You don’t leave the dock to do those drills?

No.

You also do a man overboard drill?

Yes.

How does that drill go? What do you do?

op O& Pp

A. We throw a dummy in the river, launch a rescue

boat, pick the dummy up.

Q. All right. During all this time, obviously, the

PLAYERS II, even though it’s not cruising, is sitting on

the water.

[27] A. Sitting on the water.

Q. All right, what happens in the fire and emergency

drill? What do you do?

A. The drill is announced, and the fire teams are

assembled, and a simulation of putting the fire out, post a

fire watch, and the drill is dismissed.

Q. At any point did the Coast Guard check the

amount of time it took for the vessel to get away from the

dock?

A. Not that I’m aware of.

Q. Did they have some sort of requirement about the

amount of time?

A. Not that I’m aware of.

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App. 67

Q. So they didn’t say you have to be able to get out

on the water off the dock within X amount of time?

A. No.

Q. When you did these propulsion tests, how long did

it take you?

A. Forty-five minutes, roughly.

Q. Let’s go through what you had to do in order to

cruise.

A. Okay.

Q. Okay? It’s on the dock. What have you got to[28]

do?

A. You have to disconnect the shore power.

Q. What is the shore power doing?

A. Provides current to the vessel.

MR. NIEMIRA: Electric current.

Q. All electrical power for the vessel is through shore

power?

A. All electric power to the vessel that we were using

at that time was from shore power.

Q. Okay. What do you have to do to disconnect that?

A. You have to undo the lugs and unplug the cables.

Q. How long does that take you?

A. Approximately 10 to 15 minutes.

Q. Okay. What else do you have to do?

App. 68

A. You have to unhook the potable water. That’s

another five minutes. It’s usually done at the same time.

Q. As the electrical?

A. Yes.

Q. Is all potable water on the vessel coming from

shore?

A. Yes.

Q. Goon. What else do you have to do?

[29] A. We have to unhook the IT connections.

Q. Idon’t know what that is.

A. Information technology.

Q. All right.

A. Computer hookups, which takes about two min-

Q. What do you have to do to unhook that?

A. Unplug a plug.

Q. Okay. As far as the potable water, what do you

have to do to unhook that?

A. Unscrew a hard connection. No, wait. That has

cam locks. You just have to undo the two lugs and unplug

it.

Q. Okay. Anything else that you have to do to get

away?

A. Have to unhook the surveillance connections.

App. 69

Q. Okay.

A. That’s another two minutes. Just a plug.

Q. All right. Now, on the PLAYERS II, was the

surveillance not on the vessel? It was off the vessel?

A. It was on - it had both capabilities.

Q. Okay. Again, that was just a plug?

A. Yes.

Q. What else did you have to do?

[30] A. Had to disconnect the boat from the barge.

Q. Meaning what?

A. To raise the ramps and to take all the — I believe

it’s nine tie-off points, disconnect those.

Q. Let’s talk about the ramps first.

Okay.

How are the ramps raised?

With an electric winch.

And how many ramps?

There’s three.

How long does that take?

No, wait — yeah, there was three.

Okay.

That took about ten minutes.

Gor OpPp OP O& PO p>

Then you said the nine points?

App. 70

A. Yes.

Q. Tell me what that is.

A. That’s where a ratchet — rigging — ratchets, wires

and straps — were used to connect the boat to the barge,

and they were disconnected.

Q. All right. How long does that take?

A. Fifteen to 20 minutes.

Q. I want your best estimate. In an emergency

situation where you had to get away from the [31] dock,

how quick could you do it?

A. Inanemergency situation, in 15 to 20 minutes.

Q. Other than for these inspections for propulsion, it

was never, that you can recall, taken away from the dock?

A. No.

Q. I guess what I’m really wondering about, did you

ever take the vessel away from the dock to get the drift

out?

No.

You did not?

No.

How did you get the drift out?

We used — we contracted that with another boat.

And they would actually come clean it out?

They'd wash it out.

r OF O&O Pp O& Pp

App. 71

Q. Okay. From the river side?

A. Yes. I’m not sure I understand that question,

“from the river side.” What does that mean?

Q. What I meant is, do they do that from the barge

or from your vessel, or are they actually doing that from

down on the river from their vessel? Does that make

sense?

A. No.

[32] (Mr. Kinney entered the deposition room.) (The

requested portion of the record was read by the reporter.)

Q. Okay. What I’m asking is, when they got the drift

out, did they have to board the PLAYERS II?

A. No.

Q. Okay. Did they have to board the dock barge?

A. No.

Q. To the best of your recollection, in July and

August of 2000, was there anything about the river which

prevented you from cruising?

A. No.

Q. And obviously, because the cruise before that —

well, was there anything about the boat that prevented it

from cruising in July and August of 2000?

A. No.

MR. NIEMIRA: Other than the fact it was tied

off. Is that what you mean?

Q. Yeah. Was the vessel capable of cruising?

— aeeads

App. 72

A. Yes.

Q. All right. And was there — I know we had the big

smokestacks on top. In this portion of the Ohio River, was

it still able to go under any [33] close bridges?

A. At certain water levels.

Q. All right. Tell me about that. What water levels

couldn’t it go under, what bridges?

A. I don’t remember.

Q. All right. Where is the nearest bridge that you

would have a problem with?

A. A few hundred feet downstream from where the

boat wes docked.

Q. You're talking about the railroad bridge?

A. Yes. P & L Railroad bridge.

Q. There are times when the vessel with those

smokestacks could not go under that bridge?

A. Yes.

Q. Do you know what kind of water level you had to

A. Approximately 28 feet on the Lock 52 lower gates.

Q. Is there — what’s the standard, normal water

A. The Dam 53 pool is nine foot.

Q. All right. So we’re talking pretty high water for

that to have any impact?

App. 73

A. I wouldn’t consider 28 foot extremely high. I

would consider it higher than normal.

[34] Q. Okay. And is the only reason it couldn’t get

under that bridge because of those smokestacks?

A. Yes.

Q. All right. And we’re talking about there was two

smokestacks that were — they weren't actually used, were

they?

A. Depends on what you call huge.

Q. I’m sorry, you misunderstood me. Did those

smokestacks that were put on the top deck, the two of

them, were they functional?

A. No. Oh, you said “used.” I’m sorry.

Q. Yeah. All right. Were there any other connections

other than the ones you described that you have to discon-

nect in order to get away from the dock?

A. Not that I can recall.

Q. All right. Let’s talk about the engine on the

PLAYERS II, okay? How many engines?

A. Two.

Q. Used for what?

A. Main propulsion.

Q. All right. When the PLAYERS II was taken away

from here — and I believe it’s now sitting in Texas some-

where?

A. Yes.

App. 74

[35] Q. When it was taken away from here, is the

only thing you had to do, other than disconnecting all

these things, to lower those two smokestacks?

A. We serviced all the engines, the normal routine

things that you would do before a long trip.

Q. Did you participate in taking the PLAYERS II out

of here?

A. No.

Q. No?

A. No.

MR. NIEMIRA: Let him finish his question,

okay, George?

Q. Did you have any assist boats when the vessel

was taken from here?

A. Not that ’m aware of.

Q. Just so we're clear, is the reason — at a 28-foot

river level, is the reason the PLAYERS II couldn’t get

under the bridge down here, the railroad bridge, because

of those smokestacks?

A. Yes.

Q. If those were gone, would the vessel have been

able to get under the railroad bridge?

A. Once again, I'm not sure on the water level. With

those gone, I recall that it could.

[36] Q. All right. The PLAYERS II had bow thrust-

ers?

App. 75

Yes.

All right. Backup generator, emergency genera-

Yes.

Would those run off the two main engines?

No.

That was separate?

Yes.

Okay. What else — what other things did you have

to have separate?

Had two main generators.

Okay. How did the generators run?

Off the diesel engine.

Did the boat have a bridge?

Yes.

What goes on up in the bridge? What’s up there?

Radar, the controls for steering the boat, along

with the throttles and all the aids to navigation.

Okay. What sort of aids to navigation?

Radar.

Radio?

Radios.

[37] Q. Depth finder?

App. 76

Depth finder.

Okay. Anything else that you can think of?

No.

Q. Were all these things fully functional in July and

August of 2000?

A. Yes.

Q. Obviously, they had to be, because you passed

your inspections?

A. Yes.

yO -

Q. Now, in the inspections, there’s certain things

that are required. Okay? Maybe you might want to read

this: It will make it easier for both of us. Looking at page

MR. NIEMIRA: Why don’t you list them first

and then read, okay?

Q. What were the requirements as far as lifeboats or

life rafts?

A. Two rescue boats, eight 25-man inflatable rafts.

Q. Okay. What are the rescue boats? Can you de-

scribe them fer me?

A. They're 12 foot long and approximately — probably

five foot wide with a 9.9 outboard engine.

[38] Q. All right. How long does it take to get those

into the water?

A. Just a couple of minutes.

Q. And where are they kept?

App. 77

A. On that boat they were kept on the top deck.

Q. And how would you get — drop those down to

water level?

A. With a boat davit.

Q. And how about the inflatable rafts? What are we

talking about there?

A. We're talking about inflatable rafts, 25-man

capacity.

Q. Where are they kept?

A. Theyre in racks on the top deck.

Q. How are they inflated?

A. Theyre self-inflated.

Q. What do you do to make them work?

A. Push them off the side. And when the cord — the

tending line’s pulled, it inflates the raft.

Q. Obviously, those things are required by the Coast

Guard?

A. Yes.

Q. In addition, you’re required to have life preserv-

ers?

[39] A. Yes.

Q. And how many?

A. 1904.

App. 78

Q. Is the crew required to keep separate — meaning

your deckhands, engineer — separate flotation devices?

A. No. J

Q. Okay. So that’s part of the 1904?

A. Yes.

Q. All right. Do you require that your crew wear

PFDs?

A. Yes.

Q. Even when it was docked?

A. When they were outside the handrails.

Q. All right. So that’s clear, when the crew — even

when the boat was just docked, when the crew is outside

the handrails, they had to wear a personal flotation

device?

A. Yes.

Q. Like a work vest variety?

A. Yes.

Q. All right. You also had to have six ring buoys?

A. Yes.

Q. That doesn’t add up very well. Two with [40]

lights, two with line attached, and four other; is that

right?

A. Yes.

App. 79

Q. All right. And then the Coast Guard had some

other requirements as far as firefighting equipment, fire

extinguishers, et cetera —

A. Yes.

Q. -when the vessel was docked. So after the period

when you no longer had to cruise with passengers, how

often do you start the diesel engines?

A. We start them once every two weeks.

Q. For what purpose?

A. Just to maintain consistency in starting.

Q. How long do you run them, then, once you start

A. About 20 minutes.

Q. I guess that would allow the engineer time to

make sure that everything’s operational?

A. Yes.

Q. You told me that you have shore power for the

electric?

A. Yes.

Q. What power source do you use for the heating and

cooling on the vessel?

[41] A. It’s electrically driven.

Q. Okay.

A. It’s a water-cooled HVAC system.

App. 80

Q. That system is actually on the vessel?

A. Yes.

Q. But you're getting the power from the shore

electric?

A. Yes.

Q. At the time the vessel was docked, so you weren't

cruising, the vessel still had all the things that are sort of

gone through in the stability letter? For instance, you still

had the water-tight bulkheads?

A. Yes.

Q. Still had bilge pumps?

A. Yes.

Q. Tell me what a bilge pump is.

A. Bilge pump is a pump that pumps the bilges.

Q. Where is it located?

A. It’s located — the one — on that boat, one was

located in the engine room, and one was located in the bow

thruster room.

Q. You didn’t remove the watertight doors or any-

thing like that?

A. No.

[42] MR. KINNEY: Is that a group of exhibits

that was produced today pursuant to the notice?

MR. NIEMIRA: That’s group Exhibit 2. No. 1 is

the affidavit trom the motion, which you should have.

App. 81

MR. KINNEY: Great. Thanks.

MR. SCHNELLER: I’m almost done.

Q. You told me about these tests — I’m sorry, the man

overboard, the emergency generator, fire and emergency

drills, the collision drill.

A. Yes.

Q. Okay. Besides those, you don’t do any other

periodic maritime disaster drills?

A. We did an occasional - or actually, we did a

simulated abandon ship.

Q. Was that done at the request of the Coast Guard?

A. Yes.

Q. When did you do that?

A. Weekly.

Q. What goes on in that drill?

A. We did that drill in conjunction with closing at

night when everyone was exited. And it was just the

proper way and the quickest way to sweep the boat for the

passengers to leave.

[43] Q. Okay. So you’re doing that drill when it’s

closing time? You're actually doing it with passengers on

board as you're getting them off?

A. Yes.

Q. As far as the other drills besides this abandon

ship, do you do any of these drills while passengers are on

board the vessel?

App. 82

A. Occasionally.

Q. When they took the vessel — I’m assuming that it

went directly from here to Texas. Is that correct, or do you

know?

A. Yes.

Q. Yes, it is correct?

A. Yes.

Q. Was acrew hired to take it down or —

A. It was a combination of in-house crew and a hired

Q. Are there crew quarters on board the PLAYERS II?

A. No.

Q. There is a crew break room or something like

that, is there not?

A. There was a break room.

Q. Did the crew use that?

A. Yes.

* cs *

[45] tests that the vessel left the dock?

A. Still can’t think of another time it left the dock.

MR. SCHNELLER: All right. I think that’s all

the questions I have.

MR. NIEMIRA: Let’s take ‘ive.

(A recess was taken.)

App. 83

MR. NIEMIRA: For purposes of the summary

judgment motion, we'll waive signature, but we want to

reserve it for any other purpose in the case.

MR. KINNEY: I don’t have any questions. (The

deposition was concluded at 1:15 p.m.)

GEORGE A. CARPENTER

STATE OF )

COUNTY OF )

I certify that this deposition was signed in my

presence by GEORGE A. CARPENTER on the ___day of

, 2002.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my seal of office on this the ___ day of

, 2002.

Notary Public,

State of

My commission expires

App. 84

EXHIBIT 2

CERTIFICATION DATE: 28SEP01

EXPIRATION DATE: 040CT02

[SEAL] UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

UNITED STATES COAST GUARD

Certificate of Inspection

OFFICIAL CALL

VESSEL NAME NUMBER SIGN SERVICE

PLAYERS RIVERBOAT

CASINO II D997773 WCW7257 PASSENGER

HULL HORSE-

HOME PORT MATERIAL POWER PROPULSION

NATL VESSEL DOC DIESEL

CTR STEEL 1600 REDUCTION

DATE GROSS NET

PLACE BUILT BUILT TONS TONS DWT LENGTH

JENNINGSLA 26NOV93 14380 972 190.90

OWNER OPERATOR

SOUTHERN ILLINOIS PLAYERS RIVERBOAT

RIVERBOAT CASINO CASINO

CRUISES, INC 203 SOUTH FERRY STREET

203 SOUTH FERRY STREET METROPOLIS, IL 62960

METROPOLIS, IL 62960

THIS VESSEL MUST BE MANNED WITH THE FOL-

LOWING LICENSED AND UNLICENSED PERSONNEL,

INCLUDED IN WHICH THERE MUST BE 0 CERTIFI-

CATED LIFEBOATMEN AND 0 CERTIFICATED

TANKERMEN.

_1_ MASTER ___ MASTER & 1ST CLASS PILOT

____ CHIEFMATE CLASS PILOT

2ND MATE ____ RADIO OFFICERS)

1_ Lec MATES ____ OPERATOR(S)

App. 85

____ ABLESEAMAN _1_ CHIEFENGINEER

___ ORDINARYSEAMEN ____ISTASST. ENGINEER

_8 DECKHANDS ____ 2NDASST. ENGINEER

_4 *WATCHMEN ENG'RS

____ FIREMEN-WATERTENDERS

_1_ OILERS

OTHER REQUIRED CREW 13 * STATION BILL PERSON-

IN ADDITION, THIS VESSEL MAY CARRY 1636 P’.SSENGERS.___ OTHER

PERSONS IN CREW, ___ PERSONS IN ADDITION TO CREW, AND 235

“ADDITIONAL CREW MEMBERS” . TOTAL

PERSONS ALLOWED: 1900

ROUTE PERMITTED AND CONDITIONS OF OPERATION:

RIVERS:

AT ALL TIMES WHEN PASSENGERS ARE EMBARKED,

THE BRIDGE OR OTHER APPROPRIATE LOCATION

SHALL BE MANNED BY A QUALIFIED MEMBER OF

THE CREW. FROM THIS STATION, THE WATCH SHALL

CONTINUOUSLY MONITOR CHANNEL 16 AND OTHER

BRIDGE-TO-BRIDGE FREQUENCIES, AS APPROPRI-

ATE; OBSERVE OTHER VESSEL TRAFFIC; HAVE THE

ABILITY TO ALERT PASSENGERS AND OTHER CREW;

AND HAVE THE ABILITY TO DIRECT INITIAL ACTION

IN THE EVENT OF AN EMERGENCY.

* A MAXIMUM OF FOUR (4) “ADDITIONAL CREW

MEMBERS” MAY BE USED TO SATISFY THE RE-

QUIREMENT FOR DECKHANDS.

* DURING NIGHTTIME HOURS, FOUR (4) “ADDI-

TIONAL CREW MEMBERS” SHALL BE ASSIGNED

DUTIES AS WATCHMEN TO PERFORM THE DUTIES

SPECIFIED BY 46 CFR 78.30-15.

App. 86

* THIRTEEN (13) PERSONS ARE REQUIRED TO

SATISFY STATION BILL DUTIES. “ADDITIONAL

CREW MEMBERS” MAY BE ASSIGNED TO PER-

FORM THESE DUTIES.

WHEN THE VESSEL IS AWAY FROM THE DOCK, OR

HAS PASSENGERS ON BOARD OR HAVE ACCESS

TO THE VESSEL FOR A PERIOD EXCEEDING

TWELVE (12) HOURS IN A TWENTY-FOUR (24)

HOUR PERIOD, AN ALTERNATE CREW MUST BE

PROVIDED.

ANY PASSENGER CONFINED TO THE HOLDING

CELL SHALL BE UNDER CONSTANT SUPERVISION

OF A CREWMEMBER WHO SHALL HAVE THE

CAPABILITY TO IMMEDIATELY RELEASE THE

PASSENGER IN AN EMERGENCY.

IF CHILDREN ARE CARRIED A SUFFICIENT NUM-

BER OF CHILDREN’S LIFE PRESERVERS SHALL BE

PROVIDED.

IF THE NUMBER OF ADDITIONAL CREW MEMBERS

IS DECREASED, THEN THE NUMBER OF PASSEN-

GERS MAY BE INCREASED BY A CORRESPONDING

FIGURE, WITH THE TOTAL PERSONS NOT TO

EXCEED 1900.

WHEN OPERATING DOCKSIDE, THE FOLLOWING

MINIMUM CREW IS REQUIRED:

1- MASTER 9 -* DECKHANDS

1-CHIEF ENGINEER 4-* WATCHMEN

* A MAXIMUM OF SIX (6) “ADDITIONAL CREW MEM-

BERS” MAY BE ASSIGNED DUTIES AS DECKHANDS.

* DURING NIGHTTIME HOURS, A MAXIMUM OF

THREE (3) DECKHANDS SHALL BE ASSIGNED

DUTIES AS WATCHMEN TO PERFORM THE DUTIES

SPECIFIED BY 46 CFR 78.30-15.

App. 87

~--ITC TONNAGES - --

GROSS/ 3860 NET/ 1294

~-~— HULL EXAMS ---

~EXAM -NEXT -LAST -PRIOR

TYPE- EXAM- EXAM- EXAM-

DRYDOCK 30SEP02 310CT95 29NOV93

INTERNAL 22NOV05 22NOV00 310CT95

~-- STABILITY ---

LETTER APPROVAL DATE/ 18NOV99 OFFICE/ GMSC

~~ - INSPECTION STATUS ---

* FUEL TANKS *

- TANK IDENTIFICATION —- -DATE EXAMINED -

PORT F/O 310CT95

STBD F/O 310CT95

* PRESSURE VESSELS *

TYPE LOCATION LAST NEXT

AIR ENGINE

RECEIVER ROOM 070CT97 070CT02

AIR ENGINE

RECEIVER ROOM 070CT97 070CT02

* TAILSHAFT(S) *

TAILSHAFTID DATEDRAWN NEXT DUE DATE

STARBOARD 310CT95 30SEP02

PORT 310CT95 30SEP02

* LIFESAVING *

LIFEBOAT/ SERVICED/

RAFT IDENTIFICATION REFURBISHED

259374 050CT00

259376 , 040CT00

ER2593U5059 040CT00

App. 88

259378 050CT00

259377 040CT00

259379 040CT00

259375 050CT00

ER2593U5062-02 050CT00

WEIGHT FALLS FALLS

TEST RENEWED END/END

~~~ LIFESAVING - --

TOTAL EQUIPMENT FOR 1900

LIFEBOATS (TOTAL) .............::000

LIFEBOATS (PORT)™*...............0008.

LIFEBOATS (STARBD)*...............

MOTOR LIFEBOATS%...................

WORKBOATS (NOT REQUIRED)..

REQUIRED

LIFE PRESERVERS (ADULT)................c008 1904

LIFE PRESERVERS (CHILD)...............:0008

RREOE IAS BOS CERAM) cccneecesssccessccsesesecccencegs

OEE REN sin ensestncinnnnssnanrarcaincnrenareseries

;

EQUIPPED WITH EPIRB? ...............cccceeeees NO

(* INCLUDED IN TOTALS)

~~~ FIRE FIGHTING EQUIPMENT - - -

TOTAL HOSE NUMBER OF NUMBER OF

LENGTH/ 1000 FIRE AXES/8 FIRE PUMPS/ 2

App. 89

* FIXED EXTINGUISHING SYSTEMS *

SPACE PROTECTED AGENT CAPACITY

ENGINE ROOM CO2 1000

GENERATOR ROOM CO2 100

BOW THRUSTER ROOM COz 500

* FIRE EXTINGUISHERS - HAND PORTABLE

AND SEMI-PORTABLE *

18 A-II B-I 10 ‘B-II B-IiI

B-IV B-V C-I C-II

2K Kk END 2K

WITH THIS INSPECTION HAVING BEEN COMPLETED AT CASINO

LANDING oN 28 SEP 01, THIS VESSEL IS CERTIFIED BY THE

OFFICER IN CHARGE, MARINE INSPECTION, PADUCAH, KY ‘

TO BE IN ALL RESPECTS IN CONFORMITY WITH THE APPLICABLE

VESSEL INSPECTION LAWS AND THE RULES AND REGULATIONS

PRESCRIBED THEREUNDER.

PERIODIC REINSPECTIONS

DATE ZONE SIGNATURE

THIS CERTIFICATE ISSUED BY

/s/ PT Keane

P. T. KEANE, CDR, USCG

OFFICER IN CHARGE, MARINE INSPECTION

PADUCAH, KY

INSPECTION ZONE

App. 90

EXHIBIT 3

[SEAL] UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

UNITED STATES COAST GUARD

Certificate of Documentation

OFFICIAL

VESSEL NAME NUMBER HAILING PORT

PLAYERS RIVER- 997773 METROPOLIS, IL

BOAT CASINO I

GROSS NET LENGTH

-ITC -ITC

3860 1294 190.9

BREADTH DEPTH HULL MATERIAL

60.0 11.0 STEEL

SELF PROPELLED

YES

PLACE BUILT YEAR BUILT

JENNINGS LA 1993

OWNER OPERATIONAL ENDORSEMENTS

SOUTHERN ILLINOIS COASTWISE

RIVERBOAT CASINO

CRUISES INC.

COMPLETE RECORDS ON FILE AT:

NATL VESSEL DOC CTR

MANAGING OWNER

SOUTHERN ILLINOIS RIVERBOAT

CASINO CRUISES INC

207 FERRY STREET

METROPOLIS, IL 62960

ls nna aati Mi ial ila al

App. 91

RESTRICTIONS

NONE

ENTITLEMENTS

NONE

REMARKS

NONE

THIS CERTIFICATE MAY NOT BE ALTERED EXCEPT BY AFFIXING

OFFICIAL RENEWAL AND ADDRESS

REVERSE.

CHANGE DECALS ON THE

ISSUED AT

NATL VESSEL DOC CTR

ISSUE DATE

SEPTEMBER 18,1996

THIS CERTIFICATE EXPIRES ON

THE LAST DAY OF SEP97 UNLESS

RENEWED BY DECAL ON REVERSE

SIGNATURE AND SEAL

/s/Wendy D. Rhoads

WENDY D. RHOADS

App. 92

EXHIBIT 4

Department of Transportation

United States Coast Guard

National Pollution Funds Center

Arlington VA 22203-1804

[LOGO] [LOGO]

No. 837597-12

VESSEL CERTIFICATE OF

FINANCIAL RESPONSIBILITY

(WATER POLLUTION)

Vessel Operator

SOUTHERN ILLINOIS RIVERBOAT

CASINO CRUISES, INC.

has established evidence of financial responsibility, in

accordance with 33 CFR 138, to meet liability under

section 1002 of the Oil Pollution Act of 1990, and under

section 107 of the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act, which may result

from the operation of the vessel named below:

Name of Vessel

PLAYERS RIVERBOAT CASINO II

Effective Date: 11 JUN 99

Expiration Date: - 11 JUN 02

The use of this certificate is subject to the provisions of

Part 138 of Title 33 of the Code of Federal Regulations, as

it is or may be amended, and the conditions on the reverse

side of this certificate. This certificate is invalid if there

are any erasures or alterations hereon (except permitted

ss aeaeeaiemsiiaiaciieiiaiaiiaiaiAi aaa

App. 93

by 33 CFR 138), and is void if the operator named hereon

is not the party responsible for operating the vessel.

[LOGO] /s/ Edward C. Armstrong

Chief, Vessel Certification

National Pollution Funds Center

By Direction

App. 94

EXHIBIT 5

UNITED STATES OF AMERICA

FEDERAL COMMUNICATIONS COMMISSION

SOUTHERN ILLINOIS RIVERBOAT CASINO CRUIS 00010

203 SOUTH FERRY ST

METROPOLIS IL 62960

NOTE: LICENSES ARE NOW ISSUED FOR A TEN

YEAR LICENSE TERM.

SHIP/AIRCRAFT RADIO STATION LICENSE

(MUST BE POSTED ABOARD, AIRCRAFT OR SHIP)

io FAA No/FCC ip Radio FEDERAL

Service Control No/ all Sign COMMUNICA-

Official Ship No. TIONS

CW7257

SHIP _(997773 COMMISSION

~eeigua iration |No. Shi ective [LOGO]

ate ate i alling GETTYSBURG

Fleet Number =| _ pa 17325-7245

07-10-1996 }07-10-2006 |

IName of Ship [Duplicate/

Supersede

IPLAYERS RIVERBOAT

ASINO II

Ship T Radio Re- of

Station umber i ts/ {License

Identify ategory

[Frequencies and Special Conditions

VHF/FM Radiotelephone (156-158 MHz)

[Radar (2900-3100 MHz) and/or (9300-9500 MHz)

App. 95

CONDITIONS OF GRANT

GENERAL

Subject to the provisions of the Communications Act of

1934, as amended, subsequent acts, or treaties, and all

rules made by this Commission, and further subject to the

terms and conditions of this license, the licensee is granted

a station license for the radio transmitting apparatus

located on board this aircraft or ship for the transmission

of radio communications.

This license shall not vest in the licensee any right to

operate the station nor any right in the use of frequencies

designated in the license beyond the term hereof, nor in

any other manner than authorized herein.

Neither the license nor the right granted hereunder shall

be assigned or otherwise transferred in violation of the

Communications Act of 1934 as amended.

This license is subject to the right of use of control by the

government of the United States conferred by Section 706

of the Communications Act of 1934, as amended.

The frequencies within the designated bands are author-

ized for use in accordance with Parts 80 or 87 of the

Commission’s Rules for ship and aircraft, respectively.

This license authorizes the operation of the radio station

on the specific aircraft or ship identified in the application,

or if aircraft or ship is not identified, authorizes operation

of the radio station in accordance with the Commission’s

Rules governing fleet aircraft stations or portable or fleet

ship stations.

This license authorizes use of transmitters type accepted

or approved by the Commission’s Rules to operate in the

App. 96

frequency specified on this license in accordance with

Parts 80 or 87 of Commission’s Rules for ships and air-

craft, respectively.

Licensees shall return this license to the Federal Commu-

nications Commission, 1270 Fairfield Road, Gettysburg,

PA 17325-7245, ** * request cancellation of the license

when the ship or aircraft * * * transferred to a different

owner or the radio station is permanently deactivated.

SPECIAL

1. Should harmful interference be caused by the use of

any of * ** frequencies. It shall be the obligation of the

licensee to co-operate to the fullest extent with the station

interfered with and with *** operating agencies and

administrations concerned in the interest of alleviating

the interferences. Action taken shall be in accordance with

applicable rules, regulations, treaties and established

procedures.

2. This authorization is valid until the expiration date of

the license or until the termination of the Government

Contract and Succeeding Contracts for which it is issued,

whichever is earlier. Succeeding Contracts shall be for

Services which can be provided under the technical char-

acteristics specified. * * * numbers shall be forwarded to

the Commission.

App. 97

EXHIBIT 6

[LOGO] TONNAGE CERTIFICATE | DnVC

DET NORSKE THE UNITED STATES Id. No.:

VERITAS OF AMERICA —

essel Name: Players Riverboat Registered Length:

Casino II 190.9 feet

Port: New Orleans, LA Registered Breadth:

Official No.: 997773 60.0 feet

Builder: Leevac Shipyard Registered Depth:

Place Built: Jennings, LA 11.0 feet

Rig: Oil Screw Hull Number: 308

Date Built:1993

gistered tonnages

Gross tonnage: 3860 = Net Tonnage: 1294 =

Date assigned: 16 November 1993 By: DNVC

Calculated under 46 CFR Part 69, Subpart B

Remarks/Restrictions:

gulatory tonnages (not for vessel documentation

urposes)

ross tonnage: 1430.87 Net Tonnage: 972 =

ate assigned: 16 November 1993 By: DNVC

alculated under 46 CFR Part 69, Subpart C

marks/Restrictions:

onnages must be used for all provisions of law under 46

SC 14305.

App. 98

e undersigned declares that he is duly authorized by

the United States Government to issue this certificate

| PHIL E. ESSEX (SEAL)

Tonnage Surveyor

Issued at River Edge, NJ the 16th day of November 1993

essel Name: Players Riverboat Casino II

ervice: Passenger/Coastwise

gulatory tonnages were determined by omitting the

ollowing spaces and their corresponding tonnages from

inclusion in gross tonnage.

assenger Spaces Companions Light or air

2090.30 52.54

Skylights and air Wheelhouse Water Closets

24.31 118.09

Other machinery Galley Anchor gear

19.08

Steering gear Dry cargo & stores

Water ballast:

Tank Location Tonnage

Forepeak

Afterpeak

Other tanks (list each separately)

TOTAL

The above water ballast exemption is percent of the

vessel’s gross tonnage (as calculated without any allow-

ance for water ballast). If over 30 percent, water ballast

was approved by the Coast Guard on (date):

App. 99

Open Spaces

Structure Location Tonnage

Forecastle

Shelter deck

Deckhouses (list each separately)

R.H. 1st Tier Fr. 37-105 951.76

TOTAL 951.76

or deep side framing:

Station numbers

The following tonnage stations are limited by deep floors}

EXHIBIT 7

U.S. Department Commanding Officer

of Transportation [LOGO] United States Coast Guard

United States Marine Safety Center

Coast Guard

400 7TH Street, S.W.

Washington, DC 20590-0001

Staff Symbol: MSC-1

Phone: (202) 366-6481

FAX: (202) 366-3877

STABILITY LETTER 16710/P002015

Ser. H2-9905825

November 18, 1999

App. 100

Master, PLAYERS RIVERBOAT CASINO II, 0.N.997773

Leevac Hull 308

242' x 6' x 11' Passenger Vessel (H)

You are responsible for maintaining this vessel in a

satisfactory stability condition at all times and for follow-

ing the instructions and precautions listed below. All log

entries required by 46 CFR 78.17-20 and 46 CFR 78.17-22

shall be made prior to getting underway for each voyage.

A deadweight survey, witnessed by the U.S. Coast Guard,

was conducted on PLAYERS RIVERBOAT CASINO II,

O.N.997773, at Metropolis, IL on October 12, 1999. On the

basis of that survey and a conservatively assumed light

ship vertical center of gravity, stability calculations have

been performed. Results indicate that the stability of the

PLAYERS RIVERBOAT CASINO II, as presently outfitted

and equipped, is satisfactory for operation on Protected

Waters, provided that the following restrictions are

observed.

SUBDIVISION

When operated as indicated below, calculations indicate

this vessel will remain afloat with any two adjacent

major compartments flooded (two-compartment subdivi-

sion). A major compartment is the total space between

any two adjacent Main Transverse Watertight Bulkheads

(MTWB’s). For this vessel these MTWB’s are located at

frames 8, 16, 24, 35, 52, 66, 76, 85 and 93.

DAMAGE SURVIVAL

Calculations indicate this vessel will stay upright (no more

than 7 degrees of list under ideal conditions) after side

App. 101

damage when the side damage is limited to any two

adjacent major watertight compartments and not more

than 12 feet inboard from the side of the hull. To maintain

the vessel upright after flooding (damage), the heeling

forces imposed by wind, wave, and passenger movements

must be minimized. The calculations do not specifically

account for high winds, heavy seas, or the movement of

many passengers to one side.

OPERATING RESTRICTIONS

1. ROUTE: Operation on Protected Waters is permit-

ted. Since the route is based upon other considera-

tions in addition to stability, you are cautioned that

the route may be further limited to that specified on

the Certificate of Inspection.

2. PERSONNEL:

a. A maximum of 1900 persons may be carried

aboard this five-deck vessel, of which 1629 may be passen-

gers. A maximum of 413 persons is permitted on the

uppermost (Bridge) deck at any time. A maximum of 1487

persons is permitted on the Texas Deck at any time.

b. Since the personnel capacity is based upon other

considerations in addition to stability, you are cautioned

that the number of persons carried and their distribution

may be further limited to that specified on the Certificate

of Inspection.

3. FREEBAORD AND DRAFT:

a. The draft at amidships must not exceed 6 feet 7-

inches. This corresponds to a freeboard of at least 4 feet 7-%

inches measured from the main deck amidships, located

9-2 inches aft of frame 50. The draft aft must not exceed

App. 102

6 feet 10-4 inches. This corresponds to a freeboard of at

least 6 feet 4 inches measured at the aft draft marks.

b. Since the total weight of passengers, variable

stores, and tankage may be greater than the assumed

weights in the full load condition, you are cautioned that

when carrying a full load to carefully monitor the vessels

draft as it is possible to exceed the above restriction.

4. WATERTIGHT DOORS AND BULKHEADS:

a. The Class 1 watertight doors located at frames 16,

52, 76, 85, and 93 shall be closed and properly dogged at

all times while underway, except when actually used for

transit under safe conditions. There are Class 3 sliding

watertight doors at frames 24 and 35.

b. No watertight bulkheads shall be removed or

altered without the authorization and supervision of the

cognizant Officer in Charge, Marine Inspection (OCMI).

5. HULL OPENINGS: Any openings that could allow

water to enter into the hull or deckhouse should be kept

closed when rough weather or sea conditions exist or are

anticipated.

6. WEIGHT CHANGES: This stability letter has been

issued based upon the following light ship parameters:

Displacement 1462.23 Long Tons (LT)

VCG 22.84 Feet above the baseline

LCG 13.44 Feet aft of amidships

The VCG has been conservatively estimated in lieu of

determination by an inclining experiment, as allowed by

46 CFR 170.175(d). Any alteration resulting in a change in

these parameters may invalidate this stability letter. No

App. 103

fixed ballast or other such weights shall be added, [illegi-

ble] altered and/or relocated without the authorization and

supervision of the cognizant OCMI. The vessel is not fitted

with permanent ballast.

7. DECK CARGO: No deck cargo may be carried.

8. BILGES: The vessel’s bilges and voids shall be kept

pumped to minimum content at all times consistent with

pollution prevention requirements.

9. FREEING PORTS: Deck freeing ports shall be

maintained operable and completely unobstructed at all

times.

10. LIST: You should make every effort to determine

the cause of any list of the vessel before taking corrective

action.

This stability letter shall be posted under glass or other

suitable transparent material in the pilothouse of the

vessel so that all pages are visible. It supersedes any

stability information previously issued to the vessel.

/s/ R. J. Petow

R. J. PETOW

Commander, U.S. Coast Guard

Chief, Hull Division

By direction of the

Commanding Officer

App. 104

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

BENTON DIVISION

JOHN HOWARD, et al.,

Plaintiffs,

vs.

SOUTHERN ILLINOIS

RIVERBOAT/CASINO

CRUISES, INC. d/b/a

Players Riverboat Casino;

and HARRAH’S ILLINOIS

CORPORATION,

a Nevada corporation

Defendants/Third Party

Plaintiffs,

Case No. 00-4321-GPM

vs.

TRIANGLE INSULATION AND

SHEET METAL COMPANY,

Third Party Defendant.

i A A a a a a a a a a ee a

DEFENDANT/THIRD-PARTY PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT

COMES NOW defendant/third-party plaintiff South-

ern Illinois Riverboat/Casino Cruises, Inc. d/b/a Players

Island Casino (“Players”), by and through counsel, and

move this court for summary judgment pursuant to

FED.R.Civ.P. 56 with regard to the claims of all plaintiffs,

as there is no genuine issue as to any material fact and

Players is entitled to judgment as a matter of law. In

support thereof Players states to the Court as follows:

App. 105

1. Plaintiffs have brought this action for personal

injuries against Players, their employer, under the provi-

sions of 46 U.S.C. App. § 688 (1994) (commonly known as

the Jones Act), and the general maritime law of the United

States.

2. To recover under the Jones Act and general

maritime law, plaintiffs must be seamen, Grobe v. Holly-

wood Casino, 795 N.E.2d 154, 158 (Ill. App. Ct. 2001),

citing Pavone v. Mississippi Riverboat Amusement Corp.,

52 F.3d 560, 565 (5th Cir. 1995).

3. To qualify as seamen, plaintiffs must serve aboard

a vessel “in navigation.” Grobe at 158 citing Chandris, Inc.

v. Latsis, 515 U.S. 347, 373, 1382 L. Ed.2d 314, 340, 115

S.Ct. 2172, 2192 (1995).

4. For a vessel to be one “in navigation,” its purpose

“must be, to some reasonable degree, the transportation of

passengers, cargo, or equipment across navigable waters.”

Grobe at 159 citing Johnson v. John F. Beasley Construc-

tion Co., 742 F.2d 1054, 1063 (7th Cir. 1984).

5. At the time of plaintiffs’ alleged injuries, the M/V

Players II was located on the Ohio River in Massac

County, Illinois. The Players II was taken out of service as

a casino at the Metropolis location as of September 11,

2001. (See Affidavit of Jeff Pfeiffer, attached hereto and

marked as Exhibit A, and incorporated herein by refer-

ence).

6. After June 26, 1999, when a change in Illinois law

allowed gaming on dockside casinos, Players discontinued

cruising the Ohio River and had no intention to resume

cruising with the Players II as part of casino operations.

(See Exhibit A).

App. 106

7. On July 28-29, 2000, at the time of Plaintiffs’

alleged injuries, the Players II was not transporting

passengers, cargo or equipment. (See Exhibit A). At the

time of Plaintiffs’ alleged injuries, the Players II was

permanently moored to a dock consisting of two connected

barges which were permanently attached to the shore.

(See Exhibit A).

8. The Players II was connected to land based

utilities such as electricity, telephones, computer surveil-

lance hard lines, water and sewer. (See Exhibit A).

9. Although no longer cruising as part of casino

operations after June 1999, the casino remained licensed

and classified as a passenger vessel with the United States

Coast Guard, remained equipped with firefighting and

safety equipment, had internal diesel engines for propul-

sion if necessary, and Players continued to employ a

captain and crew who are qualified to move the casino

when required to do so for testing by the Coast Guard. (See

Exhibit A).

10. Since June of 1999, the Players II left its moor-

ings no more than once every three months for propulsion

testing mandated by the United States Coast Guard. On

those limited occasions, no patrons or passengers were on

board. (See Exhibit A).

11. As of June of 1999, in order for the Players II to

leave the dock, all utility lines had to be disconnected,

three ramps raised, and numerous cables and tie-off points

and connections, which held the casino in place, had to be

disconnected by a process requiring the use of numerous

tools. (See Exhibit A).

App. 107

12. . The Players II was not, at the time of plaintiffs’

injuries, a vessel “in navigation” for purposes of the Jones

Act or general maritime law.

13. As the Players II was not a vessel “in naviga-

tion,” plaintiffs do not qualify as seamen under the Jones

Act or general maritime law, and cannot prosecute claims

under the Jones Act and general maritime law. Grobe at

161.

14. As there exists no genuine issue of material fact

in this regard, Players is entitled to judgment as a matter

of Iaw.

15. The decision of Grobe v. Hollywood Casino, 795

N.E.2d 154, 158 (Ill. App. 2nd Dist. 2001), defining

whether an Illinois casino vessel is “in navigation” for

purposes of deciding whether its employers are seamen,

was handed down nearly a year after Players filed for

limitation of liability. At the time of filing the limitation of

liability action, Players did not have the definitive guid-

ance of the Illinois Court of Appeals or the Seventh Circuit

Court of Appeals on the question of whether the Players II

was a vessel “in navigation.” Grobe, supra; see also,

Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379,

387-388 (7th Cir. 2001) (where casino is indefinitely

moored “its status as a vessel in navigation would be

doubtful.”)

16. This motion is brought pursuant to new defini-

tive legal authority on the issue of whether the Players Ii

was a vessel “in navigation.” Grobe; Weaver, supra.

17. Players files herewith a memorandum in support

of this motion which is incorporated herein by this refer-

ence.

App. 108

WHEREFORE, defendant/third-party plaintiff prays

this Court enter summary judgment in its favor and

against plaintiffs, for costs herein expended, and for such

other and further relief as is just and proper.

Respectfully submitted,

FOX GALVIN, LLC

/s/ Stephen P. Niemira

Ronald E. Fox

Stephen P. Niemira

One Memorial Drive,

Eighth Floor

St. Louis, Missouri 63102

(314) 588-7000

(314) 588-1965 (Facsimile)

Attorneys for Defendants/

Third Party Plaintiffs

—_memsaems |

tlt,

App. 109

EXHIBIT 8

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

BENTON DIVISION

JOHN HOWARD, ROY FORD, )

JUDY GRIMES, BONNIE ___s)

SHELTON, WILMA LOTT, )

JOAN MISCH, VIRGINIA ___)

MADDEN, PATRICIA )

LEDSINGER, VALERIE )

CARROLL, SHIRLEY )

JOHNSON, GRACE )

ALEXANDER, JERRIE )

BELCHER, CECELIA )

COOK, ANITA CLAYTON, _)

TROY DAVIS, DEBRA )

EASTWOOD, JOHN GREGG, )

THOMAS GRIMES, DANA _)

HOCKER, BRECIA HUIE, )

KATHY LAY, KENNETH _)

LITCHFORD, ROBIN )

LITTLE, GEORGE MABREY, )

J. RICHARD MATHENY, ) No: 00-4321 GPM

KEITH PLUMLEE, )

KITTY POLOVINA, ZENON )

RODRIGUEZ, JULIA )

SALYER, PAMULA SHINN, )

PAMELA TAYLOR ie,

BELINDA THOMAS, )

MICHAEL THOMAS NANCY)

WILLIAMS, LORI WURTH _)

Plaintiffs, ‘

vs )

App. 110

SOUTHERN ILLINOIS )

RIVERBOAT/CASINO )

CRUISES, INC., d/b/a )

Players Riverboat Casino; )

and HARRAH’S ILLINOIS _)

CORPORATION, a Nevada _)

Corporation, )

Defendants/Third )

Party Plaintiffs,

vs )

)

TRIANGLE INSULATION

AND SHEET METAL

COMPANY

State of Dlinois )

) SS

County of Madison )

AFFIDAVIT

1. I was employed on the M/V Players II, from

February 1993, to approximately July 28 2000.

2. During the time period in question I was assigned

by Defendant to work as a casino supervisor on board the

M/V Players II.

3. I spent all of my time working for Defendant on

board the M/V Players II.

4. During the time that the vessel was allowed to

remain dockside, passengers were admitted on board to

gamble every day. |

5. Iwas classified as a full time employee.

App. 111

6 Ireceived maintenance and cure benefits from the

M/V Players II from July 28, 2000 to February 2001.

/s/ John Howard

Subscribed and sworn to before me this 3rd day of

June, 2002.

/s/ Debra A. Ramirez

“OFFICIAL SEAL”

Debra A. Ramirez

Notary Public - State

Of Illinois

My Commission Expires

07/07/2003

My Commission Expires:

7/7/03

EXHIBIT A

AFFIDAVIT OF JEFF PFEIFFER

COMES NOW Jeff Pfeiffer, of lawful age and compe-

tent to testify to the matters herein, and having been duly

sworn upon his oath, states as follows:

1. I am employed as the Assistant General Manager

of Players Island Casino, the gaming facility owned

and operated by Southern Illinois Riverboat Ca-

sino/Cruises, Inc. (hereinafter referred to as Players).

I have been Assistant General Manager since May of

2000. From June of 1996 to February of 1999 I was

Vice-President of Marketing for Players. From March

of 1999 until May of 2000, I was Vice-President of Op-

erations and Marketing. I am personally knowledge-

able concerning the physical operations and status of

the M/V Players II, which was the vessel operated as

Players Island Casino.

App. 112

As of July 28-29, 2000, Players owned the Players

II, a casino located on the Ohio River in Massac

County, Illinois. The Players II was removed from ser-

vice, as a casino vessel in Metropolis as of September

11, 2001.

At the time of Plaintiffs alleged injuries (July 28-

29, 2000), the casino was not transporting passengers,

cargo or equipment, and had not done so for over a

year before the alleged incident which allegedly

caused plaintiffs injuries.

The Players II Casino had not cruised since June

26, 1999, when a change in Illinois law allowed gam-

ing on dockside casinos.

Because cruising was no longer required under

Illinois laws and regulations pertaining to gaming, af-

ter June 26, 1999, Players had no intention to resume

cruising with the Players II.

From June 26, 1999, until the casino is sold, it

will be moored to a dock consisting of two connected

barges which were permanently attached to the shore.

While in operation after June 26, 1999, the casino

was connected to land based utilities such as electric-

ity, telephone, computer surveillance hard-lines, water

and sewer.

After June 26, 1999, even though the casino was

no longer navigating the Ohio River as part of casino

operations, the Players II remained licensed and clas-

sified as a passenger vessel with the United States

Coast Guard, was equipped with firefighting equip-

ment and safety equipment, and had internal diesel

engines for propulsion.

After June 26, 1999, even though the casino was

no longer navigating the Ohio River as part of casino

App. 113

operations, Players employed a captain and crew

qualified to move the casino if necessary.

10. After June 26, 1999, the casino left its moorings

no more than once every three months for propulsion

testing mandated by the United States Coast Guard.

Propulsion testing was completed with no passengers

aboard.

11. After June 26, 1999, in order for the casino to

leave the dock, all utility lines had to be disconnected,

three ramps had to be disconnected and raised, and

numerous cables and tie-off points and connections,

which held the casino in place, had to be disconnected

by a process requiring the use of numerous tools.

FURTHER AFFIANT SAYETH NOT.

/s/_ Jeff Pfeiffer Jeff Pfeiffer

Subscribed and sworn to before me, a notary public,

this day of 13th March, 2002.

/s/ Vicki J. Boren

Notary Public

My Commission Expires:

OFFICIAL SEAL

VICKI J BOREN

NOTARY PUBLIC STATE

OF ILLINOIS

MY COMMISSION EXP.

JAN. 26, 2005

acca a i

App. 114

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

BENTON DIVISION

JOHN HOWARD, et al., )

Plaintiffs,

vs. ) Case No.

SOUTHERN ILLINOIS RIVERBOATY ) 90-4821-GPM

CASINO CRUISES, INC., d/b/a

Players Riverboat Casino; and

HARRAH’S ILLINOIS CORPORATION,

a Nevada Corporation,

Defendants/Third Party Plaintiffs,

~—

vs.

TRIANGLE INSULATION AND

SHEET METAL COMPANY,

Third Party Defendant.

MEMORANDUM IN SUPPORT OF MOTION

FOR S$ GMENT

On February 5, 2001, Players filed a limitation of

liability proceeding in this Court (S.D. Ill. Cause No. 0 1-

4040-GPM, consolidated with civil No. 00-432 1-GPM).

This Court granted Players’ motion to voluntarily dismiss

the limitation of liability proceeding on September 25,

2001. In November of 2001, some two months after dis-

missal of the limitation of liability action, the I[linois

Court of Appeals issued an opinion in the case of Grobe uv.

Hollywood Casino-Aurora. Inc., 759 N.E.2d 154 (Ill. App.

2nd Dist. 2001). This new decision of the Illinois Court of

Appeals redefines the issue of whether a permanently

moored casino vessel in Illinois is a vessel “in navigation”

for purposes of determining whether employees of the

Ne eee eee eee ee ee”

App. 115

casino are seamen under the Jones Act or general mari-

time law.

Under this new decision, which applies sound princi-

ples of admiralty jurisprudence, employees of Players are

not seamen for purposes of the Jones Act or general

maritime law, and cannot claim seaman status in pursuing

claims against their employer. As such, this Court should

enter summary judgment on plaintiffs’ claims in this

action.

I. FACTS

Plaintiffs were employees of Players on July 28 and

29, 2000, the dates of their alleged injuries.’ Plaintiffs

claim to have been injured while in the performance of

their duties as seamen and members of the crew of a

vessel in navigation, i.e. the M/V Players II. Plaintiffs’

claim to be seamen, and have brought this action for

personal injuries against Players under the provisions of

46 U.S.C. § 688 (1994), commonly known as the Jones Act,

as well as the general maritime law of the United States.

Players owns the M/V Players II, and until September

11, 2001, operated the Players II as a casino on the Ohio

River in Massac County, Illinois. Jeff Pfeiffer has been

employed by Players as the Assistant General Manager

since May of 2000, and held other positions for defendant

including Vice-President of Operations and Marketing

from March of 1999 until May of 2000. Mr. Pfeiffer is

* This does not apply to plaintiff Mezo, who does not claim to be an

employee of Players and does not bring his cause of action as a seaman.

App. 116

personally knowledgeable concerning the physical opera-

tions and status of the Players II casino. Mr. Pfeiffer has

provided an affidavit in this matter attesting to the fact

that since June 26, 1999, when a change in Illinois law

allowed gaming on dockside casinos, the Players II had not

cruised as part of casino operations, and had no intention

to resume cruising. Mr. Pfeiffer’s affidavit is attached

hereto as Exhibit A, and incorporated herein by this

reference.

Mr. Pfeiffer’s affidavit conclusively establishes as a

matter of fact that at the time of plaintiffs’ alleged inju-

ries, the casino was not transporting passengers, cargo or

equipment. Mr. Pfeiffer’s affidavit also establishes the

following facts which were true between June 26,1999

(when the casino was permanently moored), and Septem-

ber 11, 2001 (when the Players II was removed from

service as the casino in Metropolis):

The casino was moored to a dock consisting of two

connected barges permanently attached to the shore; the

casino was connected to land-based utilities such as

electricity, telephone, computer and surveillance hard-

lines, water and sewer; although no longer cruising as part

of casino operations, the casino was licensed and classified

as a passenger vessel with the United States Coast Guard;

although no longer cruising the river as part of casino

operations, the casino was equipped with firefighting

equipment and safety equipment and had internal diesel

engines for propulsion; although no longer cruising the

river as part of casino operations, Players employed a

captain and crew qualified to move the casino if necessary;

the casino left its moorings only when required by the

United States Coast Guard to perform propulsion testing,

which testing was performed without passengers aboard

App. 117

the casino; in order for the casino to leave the dock for

propulsion testing, all utility lines had to be disconnected,

three ramps had to be disconnected and raised, and

numerous cables and tie-off points and connections, which

held the casino in place, had to be disconnected by a

process requiring the use of numerous tools. (Exhibit A.)

These facts establish beyond dispute that the Players

II was not “in navigation” as that term is applied under

the Jones Act and general maritime law, such that em-

ployees who work on the Players II are not seamen.

II. ARGUMENT

Under FED.R.CIv.P. 56(c), summary judgment is

appropriate where the pleadings, depositions and admis-

sions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law. Here, the pleadings and affidavits on file establish

there is no genuine issue as to the fact that the M/V

Players II was not “in navigation” for purposes of the

Jones Act and general maritime law.

A. When is an employee a “seaman?”

The Jones Act provides, in relevant part:

Any seaman who shall suffer personal injury in

the course of his employment may, at his elec-

tion, maintain an action for damages at law, with

the right of trial by jury.... ” 46 U.S.C. App.

§ 688 (1994).

It is recognized that the general purpose of the Jones

Act is to provide heightened legal protection to seamen

App. 118

injured in the course of employment because seamen are

exposed to the “perils of sea.” G. Gilmore & C. Black, Law

of Admiralty, § 6-21 at 328-29 (2d ed. 1975). To recover

under the Jones Act or general maritime law, a plaintiff

must be a seaman. Grobe v. Hollywood Casino, 759 N.E.2d

154, 158 (Ill. App. 2nd Dist. 2001), citing Pavone v. Missis-

sippi Riverboat Amusement Corp., 52 F.3d 560, 565 (5th

Cir. 1995).

The test for whether an employee is a seaman is two-

pronged. Chandris, Inc. v. Latsis, 515 U.S. 347, 132

L. Ed. 2d 314, 115 S.Ct. 2172, 2192 (1995). In Chandris,

the Supreme Court held that in order for an employee to

qualify as a seaman (1) the employee’s duties must con-

tribute to the fractions of the vessel or to the accomplish-

ment of its mission, and (2) the employee must have a

connection to a vessel in navigation that is substantial in

both duration and nature. Jd., 515 U.S. at 368, 373 (em-

phasis added).

B. When is a vessel “in navigation?”

When determining vessel status, courts consider

several characteristics: (1) the presence of navigational

aids; (2) the presence of lifeboats and other lifesaving

equipment; (3) the shape of the bow; (4) the presence of

bilge pumps; (5) the presence of crew quarters; and (6)

Coast Guard registration. Grobe, at 159.

However, for a vessel to be “in navigation,” its purpose

must be, to some reasonable degree, the transportation of

passengers, cargo, or equipment from place to place across

navigable waters. Grobe at 159, citing Johnson v. John F

Beasley Construction Co., 742 F.2d 1054, 1063 (7th Cir.

1984). Also relevant in determining whether a vessel is “in

App. 119

navigation” is whether the owner intends to move the

structure on a regular basis and the length of time the

structure has remained stationary. Grobe at 159, citing

Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293

(5th Cir. 1990).

Normally, the question of whether a vessel is “in

navigation

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