# Petition for Writ of Certiorari — Howard v. Southern Illinois Riverboat/Casino Cruises, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0852%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 942 ## Text Supreme Court, U.S. FILED _ oy 51 ll 8 — 2004 In The Supreme Court of the Anited States , vv JOHN HOWARD, ET AL.., Petitioners, Vv. SOUTHERN ILLINOIS RIVERBOAT/CASINO CRUISES, INC. d/b/a PLAYERS ISLAND CASINO, ET AL., Respondents. e vv On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit i Ww 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. iv TABLE OF CONTENTS Page I Fi iicinttiadensciieGicevednins i POSties 00 Chm FYOCOOMEAID ...cssnccsccisscsnsccsescrsesssscesccess ii Supreme Court Rule 29.6 Disclosure Statement....... ili ON en eT ee iv Fe i iiisnsssnsercsisentamasscdiuartiatnensn vi SO NIINE HEINE cusctnacsiucakansatactecsntibendaabianennicnculiasneunionitl 1 DOE TET TE PEN MTN Te OT 1 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 1 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. 42 v 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). Sd 2 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 3 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 4 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. & v 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 5 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 6 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 7 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 8 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 | 9 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). 10 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 , 3 11 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. 4 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 12 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 11 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, v. SOUTHERN ILLINOIS RIVERBOAT CASINO CRUISES, INC., doing business as Players Island Casino, Defendant Third-Party Plaintiff-Appellant, v. 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. I 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 II 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? i 4 q ra. 4 2 & 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, fn 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) vs 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, vs 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 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, 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? A. Q. 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? A. 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? A. Q. 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? A. Q. Q A Q. A Certificate of inspection. That’s a three-page — Yes. Okay. Certificate of documentation. All right. Explain to me what the certificate of documentation is. A. Q. 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. R s 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. Q. 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? A. Q. A. Q. Yes. Who is that? Who is - Which of those people have something to do with the gaming function? A. Q. 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? A Q. A Yes. Did you prepare that, do you know? Yes. YE AE SERPS RE APRS I plese ey se Ags ig 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. | | ‘ ee ATs Bidite fad euch oe er ORs bchsis Dota Winclee salt eeteeeeic ima Roo Ace Ra 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. Q. A. Q. A. 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 ns 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) Ap [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0852%3A1. Public record. Not legal advice.