# Petition for Writ of Certiorari — Boyd v. Ford Motor Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0145%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 503 U.S. 939 ## Text Supreme Court, U.S. P1258 No - FI't. ED In The FEB 3 1992 Supreme Court of the Anited Bates gsc cuz October Term, 199] James Boyp and ELIZABETH Boypb Peti \ ForD Moror Company Rouce STEEL COMPAN) THE Moror Vesse. M.S. HEeNrR’ On Appeal from the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ALVIN L. LEVINI Levine, Benjamir Bratt. Jerris & Steir 1411 South Woodward Av« Bloomtield Hills, MI 48 January QUESTIONS PRESENTED FOR REVIEW In navigation |. Whether the condition that a vessel be 1S irequisite factor in determining seaman status pursuant to the Jones Act, 46 U.S.C S688. in light of this Court's holding it) VUcDermott ! Wilande } [ 2 _ Ct. SO7T (199] i] Whether the determinat yn that a vessel was “in may ( | tO} thie Purpose Ot Jones Act \¢ il il Stilts ‘ 1 atiry\ question O17 TABLE OF CONTENTS Questions Presented tor Review Fable of Contents Fable of Authoritie Reference to Opinions Below Jurisdiction 16 | S .¢( JOA Phe Jouve Act Court of Appe has decided an imy question of I leral laa hich ta hut hould be decided | is iirt ( ned Append 4 Phe 6th Car t Cpu Append Ki f 1) ( Mie (opi Vi ] yi, roiotft Vee 8 ()/ ore ytty Con om ty % € PABLI L of 199] Wilan ( SO7 (1990 Ro 1Q59 Ol {l PHORTTIES jn The Supreme Court of the Cnited States October Term. 199] James Boyp and EniZABETH Boyp Pe littoner: korD Moror Company Roucr STEEL. COMPANY THE Moror Vessel. M.S. Henry Forp I] Re spondents On Appeal from the United States Court of Appeals for the Sixth Circuit PETITION FOR WRIT OF CERTIORARI REFERENCE TO OPINIONS BELOW Phi opinion of the Court of Appeals below (Appendix \ infra, p. A-| is reported in 948 F2d 283 Phe memorandum opinion of the District Court below Appr ndix B. infra » B-1) was not reported JURISDICTION The jurisdiction of this Court is invoked following thi entry of an opinion of the United States Court of Appeals for the Sixth Circuit on November 6, 1991, and pursuant to 25 U.S.C. $1254 (1), Petitioners seek this writ of certiorari i 16 U.S.C. §688 — THE JONES ACT S6SS. Recovery for Injury to or Death of Seaman a) Application of Railway Employee Statutes: Jurisdiction ] Any seaman who shall suffer pe rsonal injut thre course of his employment mav. at his election mamta an action for damages it law. with thr right of trial by jurv. andin such action all statute of the United States moditving or the common , ’ right or remedy in cases of personal MyuUury tO} 1] cy Wal lovees sh all apply und in case of death of I . , iit . | | iT} seaman as a result of any SUCT) Personal tyul + | le pe rsonal re presentative ol such seaman n unital i action for damages uu siaw Ww th t} } 11 right of trial by yur and in such action. all statute ; ) . ] Pi t the United States COnTerring rre¢gulating thre | right of ction tor ce ith, | thre Case OT TALTIW i\ CTLIP 1} 1 ! ] ( shall bse LP pil ity le | risc t t cl ict , 1} } +} {4} } ; ; ; i Le Lael ( urt ( i l I 1¢>T } Tt ¢ ] ) ? é ' I +? ; STATEMENT OF THE CASI Petitioners JAMES and ELIZABETH BOYD apply for cer tiorari following a decision by the United States Court of Appeals for the Sixth Circuit On March 28, 1990, Mr. and Mrs. BOYD filed a Com plaint in the district court for the Eastern District of Mich igan alleging personal injury to JAMES BOYD caused by negligence on the part of the Respondents FORD MOTOR COMPANY, ROUGE STEEL COMPANY. and THE MOTOR VESSEL M.S. HENRY FORD I] The BOYDS claimed remedies under the Jones Act, 46 Lo. » 688, contending that JAMES BOYD enjoved the Jones Act’s requisite seaman status on February } 1]. |}9GS87 the date of his injury Petitioners based their contention on these undispute d facts: (1) that JAMES BOYD was well into his third decade as i maritime employee of the Respondents, and (2) that for thre past three years, Mr. BOYD had enjoved a permanent issignment to the MOTOR VESSEI, MS HENRY FORD II is “Chief Engineer AA” as well as “Chief Maintenance Enginee) Both the district court and the Sixth ( ircuit court of Appe als relied on the tollowing facts which are not 11) dispute 1) The [2-1] Sv] injury occurred during winter lay Phare ship Was not sailis y and was in fact CCUTE( vith special winter lines The full crew w is not stationed aboard the ship Only engineers and Persons engage din winter re pal work were retained during the winter lay up 1) The plaintiff s classification had « hanged from Chiet Engineer AA to Chief Maintenance Engineer. and his normal sailing SC ASOT Classific ation had bye Cr) ¢ hanged to temporary winter work classification 9) The pl untill was engaged in winter Lay Up me bean ] | cal repair Work at the time of his injury, either prepal ing the vessel for Winter o1 readying it for thr following tSQOT) 6) The plaintiff did not sleep aboard the vessel during the winter lay-up period (7) The vessel's main engine had been completely “torn down” and was not in operable condition at the time of the incident 8S) The vessel had lost her classification with the U.S Coast Guard, and could not regain it without an inspes + LlOT) Boyd 1 Ford Motor Company, 945 2d 283, 286 (6th ¢ 199] On February 15, 1991, the district court granted sum mary judgment tor the Defendants ruling that JAMES BOYD was not a ‘seaman’ for Jones Act purposes The lower court ruled that Respondent THE MOTOR VESSEI M.S. HENRY FORD II was not “‘in navigation’ at the time of Mr. BOYD’s injury, and therefore, he did not enjoy seaman status. The lower court also ruled that respondent, THI MOTOR VESSEL M.S. HENRY FORD II was not “in n gation’ as a matter of law i On November 6. 1991. the United States Court of App for the Sixth Circuit affirmed the lower court’s rulin The court of appe als held that thre In tavigatiol prong of the Seaman Status test was still oper ive i | of its absence in McDermott v. Wilande US 111 S.Ct 807 (1990) and Offshore Co. v. Robison. 266 | i (69. 779 (5th Cir. 1959) and that (2) whether a vessel navigation” mav be properly decided as tL question Of ta Petitioners JAMES and ELIZABETH BOYD argue that Wilancd:s ind Robison both do away with the Inaavigation require ment of the lones Act seaman status test Responde rit tend that the test still require >that a vessel be “in navigation Petitioners argue that even if the In navigation require ment is still a prong in the Wilander/Robison test tor } Status, it is purely a jury question ind in the instant « question of fact remains as to whether the vessel in question was “in navigation” when the cause of action arose. Respon dents contend that the In navigation requirement is either a question of law or a mixed question of law and fact REASONS FOR ALLOWANCE OF THE WRIT |. Courts of Appeals in conflict The Sixth Circuit opinion below is inconsistent with the Fitth Circuit's test for Jones Act “seaman status” in Offshore Co v. Robison, 266 F.2d 769. 779 (5th Cir. 1959) which is |) [I|f there is evidence that the injured workman was assigned permanently to a vessel or performed a substantial part of his work on the vessel: and (2) if the capacity in which he was employed or the duties which bie performed contributed to the function of the vesse] or to the accomplishment of its mission, or to the ope! ation or welfare of the vessel in terms of its mainte nance during its movement or during anchorage for its future trips. Robison, 266 F2d 769. 779 (35th Cir os 1959 While the Fifth Circuit does not mention the “in naviga tion requirement in the Robison test, the Sixth Circuit 11) its Opinion below holds that this factor that a vessel be “in navigation’ in order that an injured worker be a “‘seaman 1S dispositive and may be decided as a matter of law Phe Sixth Cire uit notes that there IS little in Robison to suggest an abandonment of the jin | navigation: require ment Hlowever. the facet that the Fifth Circuit did not include the “in navigation prong af ll in its test strongly sugvvests thacat sure I a requiremene ho longer eXISTS | 1 Phe Jones Act, infamous for its lac of clarity doe Ss hot issistin getting at the definition of “seaman Plain logic and Common sense do not provide ny further insight as to thre relation hip ay tween vessel statu trict se urebcuny Stave 6 The conflict between the Fifth and the Sixth Circuit is indicative of a lack of uniformity in understanding just what seaman status entails. 2. Conflict with the U.S. Supreme Court in Wilander. a) Is “in navigation” part of the seaman test? In Wilander, this Court adopted the Fifth Circuit's test for Jones Act “seaman status” as set forth in Robison, supra. Wilander, US. 111 S.Ct. SO7, S17. The Sixth Circuit, in its opinion below, reasoned that because this Court in Wilander did not specifically handle the “in navigation” issue, that the requirement is impliedly still a part of the Jones Aci “seaman status” test. The Appeals Court reasoned, The Supreme Court in Wilander considered only the narrow question of whether a person must aid in the navigation of a vessel of a vessel to be considered a seaman under the Jones Act. It did not purport to define a ‘vessel in navigation” or attempt any discussion of the “in navigation” concept. However, its opinion implies that the concept is still a viable component of the test used to determine who is a seaman. Boyd v. Ford Motor Company, 948 F.2d 283, 288 (6th Cir. 1991) As noted above, this Court adopted the Robison test in Wilander. That test for “seaman status” does not include an “in navigation” prong, however, the Sixth Circuit holds in the opinion below that Wilander implies such a require ment. b) Question of fact or law? If the “in navigation” requirement does exist by implica- tion in Wilander, as held by the lower Court of Appeals for the 6th Circuit, the holdings of Wilander state that the fac- tors going to determine “seaman status’ are mixed questions of fact and law. Wilander, U.S. , VD S.Ct. S07, SIS. In the opinion from the court below, the “in navigation” determination may be made as a question of law. The Sixth Circuit Court of Appeals holds that in certain instances, the Judge may grant Summary Judgment where no reasonable jury could find the vessel to be “in navigation”. 948 F2d 283, 285 (6th Cir. 1991) In the absence of a statutory definition of “in navigation’. there is no clear way of determining Jones Act seaman status. Is a worker precluded from such status and its benefits merely because an engine is “torn down” in the winter? A trier of fact would also be made aware that engines are routinely “torn down” all year round. Is a worker precluded from Jones Act remedies merely because the vessel on which he worked had less than a full crew and no Coast Guard classification? A trier of fact would know that the Great Lakes are transitable during the winter months and that for many motor vessels, “winter lay-up” means “ready to sail with twenty-four hours notice.” 3. Court of Appeals has decided an important ques- tion of federal law which has not been, but should be, decided by this Court. The Sixth Circuit Court of Appeals has ruled that in order for a person to enjoy Jones Act “seaman status’, the vessel on which the cause of action arose must be “in navigation . Boyd v. Ford, 948 F.2d 283, 288. In essence, the lower court of Appeals has added another formal prong to the Robison test. This Court in Wilander recognized the importance of estab- lishing uniformity in the area of maritime litigation. specil- ically in response to the question, “who are seamen?” Wilander. at S17. It is this Court, then, which is solely able to deter- mine when and ifa third, “in navigation” requirement should be part of the test for “seaman status’’. This Court, in Wilander, held that the requisites for “seaman status” are questions of fact. Wilander, at _ If, as the 6th Circuit has held in the opinion below, the “in naviga- tion” prong is still viable, does this Court's decision in Wilander indicate that such a requirement be determined at law or by a jury? CONCLUSION Is the “in navigation” requirement still viable in the test for Jones Act “seaman status”? The Sixth Circuit answers. “ves.” while the Fifth Circuit and this Court rely on a test which does not include an “in navigation” requirement. Moreover, would “in navigation” be a question of law or fact? The Sixth Circuit indicate that it is a mixed question of law and fact. This Court has held that the two prongs of the Robison test are to be determined as questions of fact. These questions are important to all areas of maritime commerce. Both maritime workers and their employers rely upon uniformity in this area of law and commerce, and there fore, this Honorable Court should grant a Writ of Certiorari in this case. Respectfully submitted, ALVIN L. LEVINE (P16610) Levine, Benjamin, Tushman, Bratt, Jerris & Stein, PC. 1411 South Woodward Avenue Bloomfield Hills, MI 48302 Suite 200 (313) 334-1551 Counsel for Petitioners Prepared by Alvin L. Levine & Adam G. Taub January 30, 1992 A-1 RECOMMENDED FOR FULL TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24 No. 91-1285 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT “« JAMES BOYD and ELIZABETH BoYD, Plainsiffs-Appellants, v. ON APPEAL from the United States District FORD MoTor ComPANyY; RouGe | Court for the Eastern STEEL COMPANY; THE MOTOR District of Michigan VesseL Ms. HENRY Foro II, Defendants-Appeilees. | Decided and Filed November 6, 1991 Before: MILBURN and SUHRHEINRICH, Circuit Judges; and JORDAN, District Judge’. MILBURN, Circuit Judge. Pursuant to a stipulation of the parties which resulted in a voluntary dismissal of ail remaining claims fotlowing the entry of a partial summary judgment in favor of the defendants, the district court entered a final judgment in the case below. Plaintiffs James and Elizabeth Boyd appeal the partial summary “Honorable Loon Jordan, United States District Judge for the Eastern Disinict of Tennessee, sitting by desi gnatioa. A-2 2 Boyd v. Ford Motor Company, et al. No. 91-1285 judgment in this personal injury action brought under 46 U.S.C. § 688 (“Jones Act") and general manitime law. The pnincipal issue in this case is whether or not THE MOTOR VESSEL MS. HENRY FORD II was a vessel in navigation on February 11, 1987, thereby giving plaintiff James Boyd the status of a seaman under the Jones Act when he allegedly fell and injured himself aboard the vessel. For the reasons that follow, we affirm. I. A. On March 28, 1990, James Boyd and his wife, a Boyd, filed a complaint in the district court ing that James Boyd was injured on four occasions ile employed as a seaman by the defendants, the Ford saa Company, the Rouge Stee! Company, and THE MOTOR VESSEL MS. HENRY FORD i n Count I of their complaint, plaintiffs alleged negligence on the part of the defendants and ~~. remedies under the Jones Act. In Count II James Boyd asserted that his injuries were caused by an unsafe dock and the unseaworthiness of the defendant vessel. In Count III James Boyd asserted claims for maintenance and cure with respect to each of his injunes. Additionally, his wife, Elizabeth Boyd, presented a claim for loss of consortium. The first three of the four injures alleged by plaintiff James Boyd occurred in 1982, 1984, and 1985. Because these injuries occurred outside the applicable three-year limitations period, the distnct court granted summary judgment in favor of the defendants as to all the Jones Act and unseaworthiness claims. Plaintiff James Boyd's fourth injury was alleged to have occurred on February 11, 1987, or within the three-year limitations period for bringing claims under the Jones Act and for unseaworthiness. However, upon determining that the MS. HENRY FORD II was not “in navigation" on February |1, 1987, the district court granted partial ee A-3 No. 91-1285 Boyd v. Ford Motor Company, et al. 3 summary judgment on all claims arising out of Mr. Boyd's alleged injury on that date, including the claim for maintenance and cure. With respect to the claims for maintenance and cure based on the alleged injuries in 1982, 1984, and 1985, the district court denied defendants’ motion for summary judgment but later dismissed those claims, as earlier stated, on stipulation of the parties and entered a final judgment. Plainuffs have not chosen to raise a question concerning the district court's ruling that the claims arising from injuries allegedly sustained in 1982, 1984, and 1985 are time-barred. Accordingly, any issues pertaining to that ruling are considered abandoned on appeal and thus not reviewable. See First State Bank v. City and County Bank, 872 F.2d 707, 719 n.5 (6th Cir. 1989); McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986). The only tuling of the district court which the plainuffs have appealed is the granting of partial summary judgment to the defendants on all claims arising from the injunes plaintiff Mr. Boyd allegedly sustained on February 11, 1987. B. The underlying facts in this case are not disputed. Within a few days of Christmas, 1986, and before January |, 1987, THE MOTOR VESSEL MS. HENRY FORD II, a ship in navigation on the Great Lakes, entered port at Dearbom, Michigan, to conclude its sailing season by entering a phase known as “winter lay-up.” The vessel was moored to its dock with its normal lines and with additional “winter lines” designed to insure a stronger and more permanent attachment to the dock. Shortly after the ship was moored, the sailing crew, with certain exceptions, was paid off and dismissed. Plainuff Boyd, however, with other members of the ship's engineering crew, remained with the vessel to supervise the winter lay-up activities. As of January 8, 1987, plaintiff's employment classification was changed A-4 4 Boyd v. Ford Motor Company, et al. No. 91-1285 from Chief Engineer AA to Chief Maintenance Engineer AA, and his monthly salary was reduced from $5,406 per month to $3,460.78 per month, changes reflecting his transfer to “temporary winterwork classification." Rather than sleeping aboard the vessel, plaintiff supervised lay-up work during the day and retumed to his home each night. During the five-day winter work week, non-crew personne! came aboard the ship to perform various jobs. The ship itself had lost her classification with the United States Coast Guard and was not permitted to sail again before passing a fit-out inspection. Moreover, the vessel's main engine was disassembled and was not operable at the time of plaintiff's alleged injury. During the period of winter lay-up, only one navigating officer was deaies the ship, and he was almost entirely engaged in supervising repair work. II. Summary judgment is appropriate where “there is no genuine issue as to any material fact and .. . the moving party is enuiled to a judgment as a matter of law." Fed. R. Civ. P. 56. A district court's grant of summary judgment is reviewed de novo. Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880 (1988). In its review, this court views all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 /vy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The moving party carries the burden in showing that no genuine issue of material fact exists. /d. Yet, in the face of a summary judgment motion, the nonmoving part cannot rest on its pleadings, but must come forward with some probative evidence to support its claim and make it necessary to resolve the differences at trial. Celotex Corp v. Catrett, 477 U.S. 317, 324 (1986). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary a A-5 No. 91-1285 Boyd v. Ford Motor Company, et al. 5 judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The dispute must be genuine, and the facts must be such that, if they were proven at trial, a reasonable jury could retum a verdict for the nonmoving party. 60 Ivy St. Corp., 822 F.2d at 1435. If the disputed evidence “is merely colorable, or is not significantly probative, summary ey may be granted.“ Anderson, 477 U.S. at 249-50 (citations omitted). The district court granted summary judgment in favor of defendants because, based on the undisputed facts, it found that “no reasonable jury could find that the SS Henry Ford II (sic) was ‘in navigation’ on February 11, 1987." The “in navigation” requirement comes from this court's definition of a seaman. Although the [Jones] Act does not define the term ‘seaman’, the Sixth Circuit has stated that in determining whether a particular employee is a ‘seaman’ the following test shall be applied: (1) Is the vessel in navigation, (2) does the employee have a more or less permanent connection with the vessei, and (3) was the employee on board the vessel primarily in aid of navigation?" Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982). Under this court's test, a person must be more or less permanently connected with a vessel in navigation in order to fit the definition of a seaman within the Jones Act. As earlier indicated, the district court found the following undisputed facts: 'The third element in the definition of a seaman was rejected in McDermou Int'l, Inc. v. Wilander, U.S. , LLi S. Ct. 807 (1991). Seo infra. A-6 6 Boyd v. Ford Motor Company, et al. No. 91-1285 (1) The [2-11-87] injury occurred during winter lay-up; (2) The ship was not sailing and was in fact secured with special “winter lines"; (3) The full crew was not stationed aboard the ship. Only engineers and persons engaged in winter repair work were retained during the winter lay-up; (4) The plaintiff's classification had changed from Chief Engineer AA to Chief Maintenance Engineer, and his normal sailing season classification had been changed to “temporary winter work classification.” (5) The plaintiff was engaged in winter lay-up mechanical repair work at the time of his injury, either preparing the vessel for winter or readying it for the following season; (6) The plaintiff did not sleep aboard the vessel during the winter lay-up penod; (7) The vessel's main engine had been completely “tom down” and was not in operable condition at the time of the incident; (8) The vessel had lost her classification with the U.S. Coast Guard, and could not regain it without an inspection. From these undisputed facts, the district court concluded that there were no genuine issues of material fact in this case, and it determined that the ship was not in navigation at the time of plaintiff's alleged injury on February 11, 1987. Accordingly, it held that plainuff Boyd was not a seaman within the meaning of the Jones Act. The district court relied prmanly on Antus vy. ae A-7 No. 91-1285 Boyd v. Ford Motor Company, et al. 7 Interocean S.S. Co., 108 F.2d 185 (6th Cir. 1939), and Nelson v. Greene Line Steamers, 255 F.2d 31 (6th Cir.), cert. denied, 358 U.S. 867 (1958). In Antus, a case factually similar to this case, the ship in question had been withdrawn from navigation. All of the navigating officers and deck crew of the vessel had departed for the winter excepting certain members of the engineer's department, including appellant. All of these men had formerly been members of the crew, but had been paid off after the last trip and had remained on board, in accord with the general practice on the lakes, for the purpose of laying up the vessel. During the navigation season they been paid on a monthly basis, but in the laying-up work they were paid by the hour, the rate of compensation, however being the same. Antus, 108 F.2d at 186. The district court had dismissed the plainuff’s action under the Jones Act, and this court affirmed for the reason that, {[wjhile the work done had direct relation to Navigation, it neither was performed during the navigasion season, nor was it even preparatory to navigation. Appellant was laying up the engine and packing the pumps and seacocks so that they would not freeze. He was taking bolts out of the piston-heads, an operation which was never done during navigation. It would have taken from four to eight hours to put the engines together again to operate. The vessel, while not consigned to a ship's graveyard, was tied up to the piles. Instead of doing this work in preparation for navigation, the men were preparing the vessel for winter quarters. Appellant was not subjected to any manume hazards. Id. at 187 (emphasis added). In Desper v. Starved Rock Ferry Co., 342 U.S. 187 A-8 8 Boyd v. Ford Motor Company, et al. No. 91-1285 (1952), the Supreme Court followed Antus and held that a crew member, reemployed as a laborer for the winter to perform seasonal repair work, was not a seaman within the meaning of the Jones Act because all the vessels upon which he had served had been “laid up for the winter” at the time of his accident. /d., 342 U.S. at 191. The Court cited Antus for the proposition that “one who had been a member of a ship's crew and was injured while preparing it for winter quarters could not maintain a Jones Act suit for his injuries... ." Jd. Although neither Ansus nor Desper concentrated on the “in navigation” requirement, both courts emphasized the fact that no vessel was engaged in navigation when the injumes occurred because the vessels had been laid up for the winter. Thus, although both cases actually focused on the kind of work being performed by the plaintiff at the time of his injury or death, Antus and Desper established that a crew member who is specially reemployed to perform winter lay-up services on a vessel is not a seaman for Jones Act purposes. This view was reenforced in Nelson v. Greene Line Steamers, 255 F.2d 31 (6th Cir.), cert. denied, 358 U.S. 867 (1958), a case in which this court affirmed a distnct court's findings that the Delta Queen had been tied up for the winter at a wharf in Cincinnati, Ohio, and was not engaged in navigation at the time of the plaintiff's intestate's death. Plaintiff had been a crew member during the preceding sailing season, but he was rig during the winter as a laborer to make SS a to the ship for the following season. Surias this lay-up period, the full crew was not aboard, and such crewmen as were working were not required to sleep on the ship. This court refused to find clearly erroneous the district court's findings that the Delta Queen was not in navigation and that the plaintiff, therefore, was not a seaman. Together the foregoing cases we be considered to have established a special status in which a vessel is laid up for refitting durng the winter months. In Bodden vy. A-9 No. 91-1285 Boyd v. Ford Motor Company, et al. 9 Coordinated Caribbean Transp., Inc., 369 F.2d 273, 275 (Sth Cir. 1966), the Fifth Circuit recognized winter quarters as such a special status in which a ship would not be considered to be in navigation. On the other hand, where a vessel is laid up for the winter, the crew having been discharged, and the boat is being secured by workmen paid at an hourly rate and living ashore, the ship is no longer in navigation. The same is true where the vessel is tied up for the winter with only a maintenance crew, and claimant, a crew member during the season, is retained as a laborer on an hourly basis and is not required to live aboard the vessel. Id. (citation omitted) (citing Nelson and Annus). Although plaintiff James Boyd does not dispute the underlying facts and, moreover, concedes in his brief that the vessel, during winter lay-up, “did not have a pre- scheduled itine of necessary sailing missions,” Brief of Appellant at 10-11, he contends that the vessel was in navigation at the time of his injury and that the district court took too narrow a view of the “in navigation” component of the definition of a seaman. He argues that courts should give a liberal interpretation to remedial legislation such as the Jones Act, Luckert v. Continental — Co., 649 F.2d 441, 443-44 (6th Cir. 1981), and contends that because our case, Noack v. American Steamship Co., 491 F.2d 937, 939 (6th Cir. 1974), holds that “the question of ‘in navigation’ is properly one of fact ... , the distnct court should not have granted summary judgment. The facts in Noack are similar to the facts in this case. In Noack, the plaintiff had been a crewman of the vessel in question for twenty-five years and during the sailing seasons was employed as “a wiper”; i.¢., one who wipes up grease and oi! from the decks of a vessel. He was injured while helping to clean the bilges during winter lay-up, and a jury awarded him a substantial verdict after A-10 10 Boyd v. Ford Motor Company, et al. No. 91-1285 finding by special interrogatory that the vessel in question was in navigation. This court upheld the jury verdict in Noack stating: It is of course true that in the strict sense the lay- up of this Great Lakes vessel effectively took the vessel out of navigation. However, it is also true that the routine of lay-up had been established because the vessels d not operate in the ice and cold. Barring. such weather obstacles to a year- round sailing season, it appears that many tasks typically accomplished dumng the lay-up period could well be accomplished at sea without interruption to regular scheduling for major irs. Thus under the circumstances it seems clear that the lay-up and fit-out activities are complete parts of the total Great Lakes sailing season. Crew members perform the lay-up and fit- Out tasks under the same labor contract that applies during the sailing season. The same discipline and functional management also applies. In view of these facts, we cannot say that there was clear error in the District Court's finding. . . Id. at 940 (emphasis added). In reaching this conclusion, this court found Busler v. Whiteman, 356 U.S. 271 (1958), to be controlling. In Butler, a brief per curiam, the Supreme Court reversed and remanded a case after finding that the “evidence presented an evidentiary basis for jury findings as to (1) whether or not the tug G.W. Whiteman was in navigation ....”" Id. The majority did not mention the facts of the case or explain its reasoning, but the dissent recited that the tug on which the injury occurred was inoperable, that it had been withdrawn from navigation, that it was moored up, that it had neither captain nor crew, that it was undergoing rehabilitation pale crear to a Coast Guard inspection, and that the decedent in the case was employed as a laborer doing odd jobs around the wharf where the tug was moored. Busler thus seems to hold that A-1] No. 91-1285 Boyd v. Ford Motor Company, et al. II there are virtually no circumstances under which a tnal court would be justified in directing a verdict on the question of whether or not a vessel was in navigation. It is not surprising, therefore, that this court in Noack, confronted with Butler and with a standing jury verdict based on special interrogatories, held that there was no Clear error in the trial despite the fact that “in the strict sense the ... vessel [was] out of navigation.” Noack, 491 F.2d at 940. In the present case we are not faced with the same situation that was before this court in Noack. First, the case comes to this court on appeal from the granting of defendants’ motion for summary judgment, not from a jury verdict in favor of the plaintiffs. Second, a recent decision of the Supreme Court has weakened Butler, and thus Noack, which followed Butler. In McDermon Int'l, Inc. v. Wilander, ___ U.S. , LIL S. Ct. 807 (1991), the Court reviewsd a 1 ircuit case and affirmed that circuit in its view that one need not aid in the navigation of a vessel in order to qualify as a seaman under the Jones Act. The Supreme Court has thus rejected the third factor of the test used in Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982), and has approved the Fifth Circuit's test from Offshore Co. v. Robison, 266 F.2d 769, 779 (Sth Cir. 1959), a test which asks two questions: (1) [I]f there is evidence that the injured workman was assigned permanently to a vessel ... or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contnbuted to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during iis movement or during anchorage for its future trips. (Emphasis added). A-12 12 Boyd v. Ford Motor Company, et al. No. 91-1285 The Supreme Court in McDermott considered only the narrow question of whether a person must aid in the navigation of a vessel to be considered a seaman under the Jones Act. It did not purport to define a “vessel in navigation” or attempt any discussion of the “in navigation” concept. However, its opinion implies that the concept is still a viable component of the test used to determine who is a seaman. We believe the better rule is to define ‘master or member of a crew’ under the LHWCA, and therefore ‘seaman’ under the Jones Act, solely in terms of the employee's connection to a vessel in navigation. The key to seaman status is employment-related connecuion to a vessel in navigation. McDermon, 111 S. Ct. at 817 (emphasis added). Although the Supreme Court adopted the test set out by the Fifth Circuit in Robdison, this does not aid the ogee in obtaining a reversal in this court because, as been pointed out, the Supreme Court did not abandon the “in navigation" requirement. Moreover, there is little in Robison to suggest abandonment of the requirement, First, the “in navigation" requirement was not discussed in the case. The language “during its movement or during anchorage for its future trips” does not distinguish between a vessel temporarily anchored while on a voyage and a ship, such as the MS. HENRY FORD II, without crew, without sailing certificates, without operable engines, and without a sailing itinerary or current sailing mission. Thus, neither Robison nor McDermoit supports lainuiffs’ contentions that the “in navigation® requirement been weakened or abandoned. Because the district court's resolution of this case tumed only on the issue of the ship's status at the time of plainuff's injury, and because this issue is independent of the issues discussed in A-13 No. 91-1285 Boyd v. Ford Motor Company, et al. 13 Robison and McDermout -- whether or not plaintiffs were members of a crew -- this court need not decide in this case whether to replace entirely Searcy's definition of seaman under the Jones Act. McDermott also provides important guidance for the resolution of this case insofar as it specifically approves the use of summary judgment in Jones Act cases and therefore relaxes what seemed to be a rigid rule in Butler, a case that had been read to hold that jury determinations were required in all aspects of Jones Act cases. Noting that some of its older cases had said that seaman status under the Jones“Act was a question of fact for the jury, the Court in McDermorr stated that the question of who is a seaman is best characterized as a mixed question of law and fact and that, because seaman is a statutory term, its definition is a question of law. It went on to state: The jury finds the facts and, in these cases, applies the legal standard, but the court must not abdicate its duty to determine if there is a reasonable basis to support the jury's conclusion .... The inqui into seaman status is of necessity fact-specific; it will depend on the nature of the vessel, and the employee's precise relation to it. Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion. Id. at 818 (citations omitted) (emphasis added). In this case, the facts pertinent to the determination of whether the MS. HENRY FORD II was in navigation were undisputed, and the question of whether the ship was in navigation was therefore appropriate for summary judgment, especially so after the Supreme Court's trilogy in 1986 dealing with summary judgments. This court's cases, as the district court correctly noted, have held that a ship in winter lay-up without its regular crew, without Coast Guard cortiietion to sail, and without its engines in Operating condition, is not in navigation. The cases A-1l4 14 Boyd v. Ford Motor Company, et al. No. 91-1285 cited by plaintiffs provide no reason for this court to change its view that a winter lay-up of the kind described in this case takes a vessel out of navigation and renders those employed upon her ineligible as non-seamen to proceed under the Jones Act. Ul. For the foregoing reasons, the judgment of the district court is AFFIRMED. RECEIVED JAN. 4, 199] LEVINE, BENJAMIN UNTEPFED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION James Boyp and Biizanperun Boyp Plaintiffs Civil Action No 9O0-CV-7TOS47-D] VS Tre Forp Moron Company Tur Roucr Sreet Company and THe Moron Vesser. MS Henry Forp I Hox. Bernarp A. Freep: Defendants MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This matter is presently before the court on defendants motion for summary judgment, filed November |. 1990 Plaintiffs have filed a response and defendants have filed reply. Pursuant to Local Rule 17(1)(2) of the United States District Court for the Eastern District of Michigan. the court shall decide this motion without an oral hearing. Accord ingly, the January 31, 1991, hearing date indicated on defen dants’ re-notice of hearing dated November 21. 1990. is cancelled Background The complaint alleges that plaintiff James Bovd was injured on four occasions while working for defendants. The first B-2 injury allegedly occurred on June 16, 1982, when plaintiff tell on pellets “which had been spilled on the dock ~ At that time, plaintiff “was emploved by the defendants as a first assistant engineer [and] was returning to the vessel” when he fell. Plaintiffialleges that on this occasion he injured his hip, knee and right hand. Complaint, para. 7. See also id ) para. 233. Plaintiff was injured a second time on December 16, 19S 4, when he again fell on pellets on a dock. At that time, plain tiff was “continuing his employment with the defendants. and performing his duties leaving the vessel ~*~ On this occasion plaintiff allegedly “re-injured his hip. back, neck. both knees, and) right shoulder. Id. para. 9. See also id. para. 24. The third injury occurred on June 5, 1985, when plaintiff “while working in the crankcase of the main engine of the defendant, THE MOTOR VESSEL MS HENRY FORD II, fell in the crankcase In this fall plaintiff “re-injurled] his hip. shoulder, back, neck, both knees. and). right ear and head “Id. para. 11. See also id. para. 25. On February 11, 1987, plaintiff was injured a fourth time when “while inspecting a cargo-hold, plaintiff. —— fell on fine coal dust.” In this incident plaintiff “re-injured his hip, back. neck, right knee and right shoulder “Td. para. 13. See also para. 26. Plaintiff James Bovd alleges that each of these injuries was proximately caused by defendants negligent failure to prop erly maintain the vessel and surrounding area. He seeks dam ages for lost earnings, medical expenses, and pain and suffering His wife. plaintiff Elizabeth Bovd, asserts a claim for loss of consortium. The negligence claims presented in Court bare brought under the Jones Act. 46 U.S.C.) 6SS. Count TI asserts claims of cl nnsate dock and mnscaworthy vessel County TH asserts a claim for failure to provide maintenance ind Cua? ae Summary Judgment Standard Under Fed. R. Civ. P56 (c). summary judgment is appro- priate if the pleadings, depositions, answers to interrogatories. and admissions on file, together with the affidavits. if any, Show that there is no genuine issue as to any mate- rial fact and that the moving party is entitled to a judg- ment as a matter of law. The burden is on the party opposing summary judgment to “set forth specific facts showing that there is a genuine issue for trial.’ Fed. R. Civ. P. 56(e), [T]he mere existence of same alleged factual dispute between the parties will not defeat an otherwise properly supported motion for sum- mary judgment; the requirement is that there be no genuine dispute as to any material fact.” Anderson v. Liberty Lobby. Inc, ATT US. 242, 247-48 (1986) (emphasis in original). Viewing the evidence “in the light most favorable to the opposing party,” Adickes v. SH. Kress & Co., 398 U.S. 144. lov (1970), summary judgment should be entered only if the evidence is so one-sided that a reasonable fact-finder could not find for the opposing party. See, e.g. Anderson tv Liberty Lobby, Inc., ATT U.S. 242. 248-50 (1986). Street 1 J] © Bradford & Co.. 886 F2d 1472, 1478-80 (6th Cir. 1989). Defendants’ Summary Judgment Motion Mc In their summary judgment motion, defendants first argue that the statute of limitations has run with respect to the first three incidents (6-16-82, 12-16-84 and 6-5-5). The Jones Act claims are subject to a three-year limitations period. See MeAllister v. Magnolia Petroleum Co.. 357 U.S. 22 1, 225 n.6 (1955) (noting that the Jones Act incorporates the three vear limitations period of the Federal Employers Liability Act, 45 U.S.C. 8 56): Albertson tv. T | Stevenson & Co.. Inc 749 F2d 223, 228 (Sth Cir. 1984). Unseaworthiness claims are governed by the three-vear limitations period of 46 U.S.C. Y 763a. See Cooper v. Diamond M Co., 799 F2d 176, 178 (5th Cir. 1986), cert. denied 107 S. Ct. 2177 ( ut (applying the dae -vear limitations “i ‘riod of 46 U.S.C. § 763Ba to a steward’s unseaworthiness claim): M. Norris, The tes of Sea men § 27:22, p. 248 (1985). Claims for maintenance and cure are not subject to the three-year limitations period of the Jones Act or 46 U.S.C. ) 763a, but are limited by the doctrine of latches. See Clauson t Smith, 8523 F.2d 660, 661 n.1 (1st Cir. 1987); Reed v Amer ican Steamship Co., 682 F. Supp. 333, 335-38 (B.D. Mich. 19588); Norris, The Law of Seamen § 26:43, pp. 117-15. The complaint in this matter was filed on March 28, 1990. This filing took place four years, nine months after the 6-5-85 injury: five years, three months after the 12-16-54 injury: and seven years, nine months after the 6-16-82 injury substanti lly beyond the three-year limitations period in each instance. Since plaintiffs have made no showing! as to why the statute of limitations should be deemed tolled or other wise inapplicable, the court shall grant summary judgment for defendant on the Jones Act and unseaworthiness claims arising from these incidents. The court expresses no opinion as to whether the doctrine of latches bars the maintenance and cure claims arising from these first three incidents. In their summary judgment motion defendants argue that maintenance and cure Claims are sub ject to the three-year limitations period of the Jones Act or 16 U.S.C.) 763a. The court disagrees with defendants’ posi tion and adopts, instead, the conclusion reached by Judge Pe note ae FR Fed R. Cis. P56 (e) requires plaintiffs to “set forth specific facts showing that there is a genuine issue for trial” Tn thei response to defendants’ motion plaintiffs do not address the statute of limitations arguments at all. Phamtiffs have therefore failed to meet thei burden under Rule 36(e) Freeman in Reed v. American Steamship Co.. supra, that main tenance and cure claims are limited by the doctrine of latches. not by a statutory limitations period. Defendants have not argued. and the court mav not at this point assume, that the doctrine of latches bars plaintiffs’ maintenance and cure claims. Accordingly, the court shall deny defendants’ motion insofar as it seeks summary judg ment as to these claims. Defendants are free. of course. to file another motion (prior to the motion cutoff date) seeking summary judgment based on latches. B. Defendants next argue that plaintiffs’ claims arising from the February 11, 1987, incident are barred because at that time the MS Henry Ford If was not “‘in navigation” and. therefore, plaintiff James Boyd was not a “seaman.” Plaintif{ concedes that these claims are barred if at the time of his injury he was not a “seaman” within the meaning of 46 US.C. 9 455° but he maintains that he so qualifies The Sixth Circuit has stated: In an action by an injured employee to recover dam ages under the Jones Act, the test to be applied in deter mining whether the emplovee is a “seaman” within the meaning of the Act is (1) that the vessel be in haviga tion, (2) that there be more or less permanent connec tion with the vessel, and (3) that the worker be aboard primarily to aid in navigation. Nelson v. Greene Line Steamers, 255 F.2d 31. 33-34 (6th Cir 1958), cert. denied 358 U.S. 867 (1958). This three part test was reaffirmed in Noack v. American Steamship Co.. 491 F.2d 937, 938-39 (6th Cir. 1974). and, more recently, in Searcy t_ EF. T Slider, Inc., 679 F2d 614, 616 (6th Cir. 1982) Phe Jones Act. 465 US CG. § 68S permits “lalny seaman who shall sutter personal injury in the course of his employe nt ito Panta an action for damages it bans Einphasis idded B-6 Defendants argue that the ship on which plaintiff was working, the MS Henry Ford II, was not “in navigation” on February 11, 1987. Defendants’ recitation of the following facts is not disputed by plaintiff: 1) The [2-11-87] injury occurred during winter lay-up; 2) The ship was not sailing and was in fact secured with special “winter lines”: 3) The full crew was not stationed aboard the ship. Only engineers and persons engaged in winter repair work were retained during the winter lay-up: 1) The plaintiff's classification had changed from Chief Engineer AA to Chief Maintenance Engineer, and his nor- mal sailing season classification had been changed to “‘tem- porary winter work classification.” . . . 5) The plaintiff was engaged in winter lay-up mechan- ical repair work at the time of his injury, either preparing the vessel for winter or readying it for the following season: 6) The plaintiff did not sleep aboard the vessel during the winter lay-up period: 7) The vessel's main engine had been completely “torn down” and was not in operable condition at the time of the incident; } 8) The vessel had lost her classification with the U.S. Coast Guard, and could not regain it without an inspection. Defendants’ Brief, pp. 18-19. As plaintiffs do not dispute these facts, the court may take them as established. Similar circumstances were present in Antus v. Interocean S. S. Co., 108 F2d 185 (6th Cir. 1939). In Antus, plaintiff At page 19 of this deposition, plaintiff testified that he did not know whether the main engine was operable on February LL. LOST. At pages >] 29 however, he indicated that the Coast Guard would not have per mitted the ship to sail on that date because, among other things. the ‘Imlain engine would not run B-7 was injured while cleaning the bilges ofa Great Lakes steame At the time of the injury, the ship was in winter layup. — All of the navigating officers and deck crew of the ves- sel had departed for the winter excepting certain mem- bers of the engineer's department, including appellant. ° o ° At the time of the accident appellant's work consisted of overhauling the engines, removing bolts from cylinder- heads and chests, cleaning bilges, and performing sim- ilar operations, all of which the District Court held had a direct relation to navigation and commerce. 105 F2d at 156. The district court found that plaintiff was not a “seanvan” and dismissed his Jones Act complaint. Id. In affirming, the Sixth Circuit stated: [T]he question is whether at the time of the accident he was engaged in maritime work, and the test is the nature of his employment at the time. While the work done had direct relation to navigation, it neither was per- formed during the navigation season. nor was it even preparatory to navigation. Appellant was laying up the engine and packing the pumps and seacocks so that they would not freeze. He was taking bolts out of the piston-heads, an operation which was never done dur- ing navigation. Tt would have taken from four to eight hours to put the engines together again to operate. | The vessel, while not consigned to a ship's graveyard was tied up to the piles. Instead of doing this work in preparation for navigation, the men were preparing the vessel for winter quarters. Appellant was not subjected to any maritime hazards. The fact that he had been, o1 expected in the future to be, a seaman does not render ' At pages 1S—19 of his deposition, plaintiff testified that the main engine Which had been “torn down” could be made operational within 12 to 24 hours after being reassembled maritime work which was not maritime in its nature The finding of the District Court upon this point was correct, and appellant was not at the time of his injury ad SC anal. LOS F2d at 187 The same result was reached in Nelson vo Greene Line Steamers, Inc., 255 F.2d 31 (6th Cir. 1958. In Nelson, plain tiffs decedent was a deck hand on a Mississippi excursion steamer. The vessel made its last excursion of the vear in early November, following which “it was tied up for the winter "255 F2d at 32. Plaintiff's decedent, who lived onthe vessel during the sailing season, was employed during the winter as a “‘laborer| | for the purpose of making neces sary repairs to the vessel and getting her ready for the fol lowing season.” Id. at 33 Additionally After the boat was tied up the appellee only had on the bout such persons AS could be used to ready thre ship for the use the following spring. The full crew was not retained. The pilots were not on board, nor the stew ard’s crew or maids, nor all of the deck hands, cooks chefs or pantry men. The engineers and their helpers Were On board making repairs On the Pri hinery ana boilers Id. Plaintiff’?s decedent fell overboard while working on the paddle wheel and drowned. The Sixth Circuit affirmed the district court’s determination, on a motion to dismiss. that the vessel was notin navigation and that plaintiff 's decedent was not a seaman withip the meaning of the Jones Act. LOS F2d at 35 Antus was later cited with ippro al boy thre Supreme Court in De purt Starved Rock kerry Co it ae | S ik, | | O54 Ii De per thre care suggested that a hips is not imnmavigation bits do winter bay up la also \1 irtin Thi Lau of Seamen \ » » ! oe | let) Citing Cases for thy proposition that iship i notin mavigation when she bra been laid up tor +} e Winter B-Y The question of seaman status within the meaning of the Jones Act is generally a question of fact to be decided by the jury. Searcy v. BE. T Slider, Inc. 679 F.2d 614. 616 (6th Ci 1982). citing Luckett v. ( ontinental kngineering Co..649 F2d Hl, 443 (6th Cir. 1951). Where. however. the material facts are not disputed, the court may make this determina tion on summary judgment. See. eg. Antiust Interocean SS Co and Nelson v Greene Line Steamers. Inc supra Based on the undisputed facts in this case the court believes no reasonable jury could find that the SS Henry Ford IL was In navigation on February 11. 19ST. As noted above. the parties agree that the vessel was in winter lay up at threat time. At pages 7—S of his deposition, plaintiff testified that the ship had been in this state since approximately Chirist mas 1L9OS6. Although the ship was inthe water. it was secured to the dock with winter lines. Id) at 14. Phaintiff testified that the main engine was completely torn down” during the lay up period. Id) at 1S. Plaintiff also testified that he was not living on thre ship during the winter lay up. but commuted to work from Trenton. Mic higan. Id) at 15-16 Plaintiff indicated that the vessel could not have sailed on February 11, 1987, because there was no crew aboard. th lite Sav Ing equipment was not out and thre man engine would not run. Id at 21-22 Plaintiff has not cited a single case from this circuit whict would permit a jury to find that a vessel in this condition is Ih navigation within thie meaning of thre Jouve Ss Act. Based on the cases cited above the court believes th it no reason thle jury could make such a finding. Ac ordingly. the court Shall grant Summary judgment for def ndants with re spect to the February Ll. L9S7 iyur Conclusion Kor the re asons Stated above Ml IS ORDERED that defendants motion for Stummary jidgment is granted as to thre Jones Act and unseaworthines Claims arising from the injuries plaintiff fares Bovd sustaines B-10 on June 16, 1982: December 16, 1954 and June 5, 1985 Defendants’ motion is denied without prejudice as to the ; “a ' maintenance and cure claims arising from these injuries IT IS FURTHER ORDERED that defendants’ motion for summary judgment is granted as to all claims arising from the injuries plaintiff James Boyd sustained on February 11 LOST SO ORDERED BeRNARD A. FRIEDMAN Bernard A. Friedman United States District Judge Dated Jan. O03, 199] Detroit Michigan --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0145%3A1. Public record. Not legal advice.