Petition for Writ of Certiorari — DiGiovanni v. Traylor Bros.

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In The | OFEICE QE TH Cue

Supreme Court of tie United States

-—

—"

October Term, 1991

ROCCO P. DIGIOVANNI, JR.,

Petitioner,

VS.

TRAYLOR BROTHERS, INC.,

Respondent.

Petition for Writ of Certiorari to the United States Court of

Appeals for the First Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID B. KAPLAN

THOMAS M. BOND

THE KAPLAN/BOND GROUP

Attorneys for Petitioner

Boston Fish Pier

West Building, Suite 304

P.O. Box 1404

Boston, Massachusetts 02205-1404

(617) 261-0080

*NJ (908) 257-6850e(800) 3 APPEAL®NY (212) 840-4640°eMA (617) 542-1114

“Agpsiiate,. ime, DC (202) 783-7288+PA (215) 925-6500*USA (800) 5 APPEAL

QUESTION PRESENTED FOR REVIEW

Did the First Circuit Court of Appeals err in its decision that

a barge that was designed and used for transportation over

navigable waters was not a vessel for Jones Act purposes as a

matter of law, even though the jury found it to be a vessel and

even though it would be considered a vessel under twenty-seven

different federal statutes, under definitions established by the

United States Supreme Court and other Circuits, and under the

common sense meaning of the term established by centuries of

maritime jurisprudence?

LIST OF PARTIES

ROCCO P. DIGIOVANNI, JR.

Plaintiff-Petitioner

TRAYLOR BROTHER’, INC.

Defendant-Respondent

DAVID B. KAPLAN, THOMAS M. BOND and THE

KAPLAN/BOND GROUP,

Boston Fish Pier, West Building, Suite 304

Boston, Massachusetts 02205-1404

Attorneys ‘for Plaintiff-Petitioner

ANDREW ROTHSCHILD, JOHN D. HUSMANN, and LEWIS,

RICE & FINGERSH,

611 Olive Street, Suite 1400, St. Louis Missouri 63101

Attorneys for Defendant-Respondent

TABLE OF CONTENTS

Page

Question Presented for Review ...................008- i

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Table of Contents............... Gf a Rn a iii

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1. Physical Description of the Barges.............. 3

a) EE GO GED GOUT Nw. eee eee eens 4

ee ge BO eee ee 5

Ee Se 5

I. The First Circuit’s definition of the term ‘‘vessel’’

directly and irreconcilably conflicts with definitions

established by the Supreme Court, other Circuits,

twenty-seven federal statutes, and centuries of

UT I, ov csc wan ceenccnces >

Contents

Page

A. The Conflict Between the First Circuit and Other

RNS) a's ss co a hetaah ate aes a oe Ms xia 5

1. The tests employed to determine vessel

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Application of the tests in factually similar

cases has produced diametrically different

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B. The Conflict Between the First Circuit and the

IE TNS 6.055 4.64 44 cet emieta wets vane 7

C. The Conflict Between the First Circuit and

Twenty-Seven Federal Maritime Statutes..... y

il. The First Circuit’s novel test is erroneous, difficult

to apply, and will spawn further litigation. ...... 10

III. This issue should be resolved because it directly affects

a large number of people. ...............00000: 13

te PRS An anne Pune eA Rot an Ai Ret My En PRR CLR Ug 14

TABLE OF CITATIONS

Cases Cited:

Ducote v. V. Keeler & Co., Inc., 953 F.2d 1000 (Sth Cir. 1992)

Contents

Page

Hurst v. Pilings & Structures, Inc., 896 F.2d 504 (11th Cir.

Li, SET PES CET OMe Terry eye EC eee 6

Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (Sth Cir. 1989)

a wee aba c duce hbk tated’ Seb ee 6, 10

McDermott Industrial, Inc. v. Wilander, 111 S. Ct. 807

(ODDS: acc cds 044 cee uws baa nepinssbosbedaere see 8, 13

Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970)

oe nee ak & xyebd bu eee Whee ee ae ee ee 13

Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957)

co oe cau nnauahe ch auauaeeeeus es ieee ate 8

Sharp v. Johnson Bros. Corp., 917 F.2d 885 (Sth Cir.

PEPE POETROEUTET UT eT TCT Ter eT rt tT 6

Southwest Marine, Inc. v. Gizoni, 112 S. Ct. 486 (1991)

er ry PON rr re ey A. y Pe

The Texas Co. v. Gianfala, 222 F.2d 382, (Sth Cir. 1955)

Pes Ne oe Doig ele a da beds wae ak 6a ae 7, 8

Statutes Cited:

Bik la S eer Tere TTT rer rs. ss y

, SIR Rae Bee eee er ee 2

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1 USS. © OS cc chav ccwnsae cee ie incceetyenvenseue 3

Contents

O68 USGS GO 65 566454440000 ee eee

Other Authorities Cited:

1B Bellman, et al., Benedict on Admiralty § lla, at 2-6 (6th

OG FE ss s coon ddd 5 kbd eee eee

ee) ge ree mK AN

Annual Report of the Director of the Administrative Office

of the United States Courts (1987-1991)............

Bloomster, Sailing and Small Craft Down the Ages at 95

eo, 8B ES = — Pe errr er er

T. Hartman, The Guinness Book of Ships and Shipping at

238 (Butler and Tanner Ltd. 19635) ... 2 cc ccccccacas

National Transportation Statistics Annual Report (July 1990)

Set eae Re Se RARER AHABRHAEAR SE £6 OBESE SD OD OEE. S SSD EEO SESE SEE Oe

Waterborne Commerce of the United States (Army Corps

GT EROS Tee x i one hewn dence ween eee

APPENDIX

Appendix A — Opinion En Banc of United States Court of

Appeals for the First Circuit Dated March 4, 1992

tbe eCeEe Pa SKC HCHRHROHRD ODD SEEA BHR SEA TSHEARA SRA SES OAS OB Oe Se eee

vil

Contents

Page

Appendix C — Opinion of United States Court of Appeals

for the First Circuit Dated April 17, 1991.......... 3la

No.

In The

Supreme Court of the United States

October Term, 199]

ROCCO P. DIGIOVANNI, JR.,

Petitioner,

vs.

TRAYLOR BROTHERS, INC.,

Respondent.

Petition for Writ of Certiorari to the United States Court of

Appeals for the First Circuit

PETITION FOR WRIT OF CERTIOF ARI

The petitioner, Rocco P. DiGiovanni, Jr., respectfully prays

that a writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the First Circuit, entered

in the above-entitled proceeding on March 4, 1992.

OPINION BELOW

The en banc decision of the United States Court of Appeals

for the First Circuit is reported at DiGiovanni v. Traylor Bros.,

Inc., _. F.2d ___., 60 U.S.L.W. 2583 (ist Cir. 1992). The panel

decision of the United States Court of Appeals for the First Circuit

is not reported. Both decisions have been reproduced in the

appendix.

STATEMENT OF JURISDICTION

This petition seeks review of the judgment of the United States

Court of Appeals for the First Circuit entered on March 4, 1992.

This petition is filed timely pursuant to 28 U.S.C. § 2101(c). This

Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The Jones Act, 46 U.S.C. § 688(a)

(a) Application of railway employee statutes;

jurisdiction.

Any seaman who shall suffer personal injury in

the course of his employment may, at his election,

maintain an action for damages at law, with the

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

of the United States modifying or extending the

common law right or remedy in cases of personal .

injury to railway employees shall apply; and in case

of death of any seaman as a result of any such

personal injury the personal representative of such

seaman may maintain an action for damages at

law with the right of trial by jury, and in such

action all statutes of the United States conferring

or regulating the right of action for death in the

case of railway employees shall be applicable.

Jurisdiction in such actions shall be under the court

of the district in which the defendant employer

resides or in which his principal office is located.

STATEMENT OF THE CASE

On September 30, 1988 Rocco P. DiGiovanni was a member

of the crew of a crane-carrying barge which transported a crane

and supplies around Narragansett Bay in Rhode Island and

participated in the building of piers and coffer dams for the

Jamestown Bridge project. He was injured when he slipped on

hydraulic fluid that had leaked on deck. DiGiovanni sought

damages under the Jones Act, 46 U.S.C. § 688, and the general

maritime law, and invoked the maritime jurisdiction of the United

States District Court for the District of Rhode Island.

1. Physica! Description of the Barges |

The BETTY F is a 40’ X 100’ steel hull barge. It has a raked

bow, which is at an angle from the front to the back. It has

navigation lights for transportation. The vessel had to be

maintained to Coast Guard standards. The Coast Guard boarded

the BETTY F frequently to inspect it. The vessel was registered

with the Coast Guard; when it was purchased, the respondent

had to inscribe its name and its Wilmington, Delaware registration

on the vessel for navigational reasons. The Coast Guard also

required that the barge’s anchor balls had to be painted white

with quick flashing white lights on it for navigational reasons.

A warning whistle had to be kept on board to warn other vessels.

A fender system had to be placed on the side of the barge so

that it wouldn’t be damaged by nor cause damage to other vessels

coming close to it. And, the men aboard had to wear life jackets.

The BETTY F was equipped with load lines. which the Coast

Guard required be kept in a visible condition. The load lines were

used to ballast the vessel down and keep it flat or trim. The barge

also had internal compartments or bulkheads which would be filled

with water to ballast the vessel. The BETTY F would travel to

Davisville, Rhode Island and hook up to hydrants located there

to fill it with water. Various compartments would be filled with

water consistent with wind and tide conditions and to

counterbalance whatever was on the other side of the barge, i.e.,

if the barge’s crane were lifting a heavy weight, etc.

The BETTY F had toilet facilities and an enclosed area where

the crew could eat, which contained a small cafeteria with a stove

and refrigerator. A tool shack and a sitting area were located

near the bow of the vessel.

2. Movement of the Barges

The BETTY F carried a crane which it would transport

around Narragansett Bay to construct piers and coffer dams for

the Jamestown Bridge. The job could not be performed by a land-

based crane. The barge had to be moved to put the crane wherever

it was needed. Approximately once each month the BETTY F

was moved across navigable waters, aided by a tug or push boat,

in order to transport the crane to a new job site. The vessel had

been outfitted in Davisville, Rhode Island one month before the

accident, and presumably brought by tug to the job site where

the injury occurred. The undisputed testimony of the petitioner

is that he ‘‘travelled quite a bit on the BETTY F’’. The supply

barge tha} was part and parcel of the BETTY F had transported

cargo on the day of the accident. In fact, it would be brought

to and from Davisville at various operations of the job whenever

supplies were needed or anything else was needed at the job site.

The supply barge carried a hammer that was part of the BETTY

F’s crane. It also carried a power pack, H beams, and sheetings.

The BETTY F was moved around the job site on a daily

basis. Every day it was moved around the work area, and at night,

it was moved away from the work area so that it wouldn’t sustain

any damage from the motion of the water or the wind.

3. The Petitioner’s Job Duties

DiGiovanni was taken to the BETTY F each morning by tug

boat. When the BETTY F was taken to a new job site, DiGiovanni

would respond to the tug captain’s orders as well as the barge

captain’s orders regarding the handling of the lines connecting the

tug and barge and continue to slack and secure these lines during

the voyage. He would ride the vessel to the new site, keeping watch

in front of the barge so it wouldn’t hit anything. DiGiovanni would

check the vessel for seaworthiness, and clear its decks. He would

also take part in the ballasting of the vessel. Another one of

DiGiovanni’s job duties was to act as a tag man during pile-driving

operations.

REASONS FOR GRANTING THE WRIT

THE FIRST CIRCUIT’S DEFINITION OF THE TERM

‘*VESSEL’’ DIRECTLY AND IRRECONCILABLY

CONFLICTS WITH DEFINITIONS ESTABLISHED BY THE

SUPREME COURT, GTHER CIRCUITS, TWENTY-SEVEN

FEDERAL STATUTES, AND CENTURIES OF MARITIME

JURISPRUDENCE.

A. The Conflict Between the First Circuit and Other Circuits.

1. The tests employed to determine vessel status are different.

The Fifth Circuit looks to whether a structure is designed

for transportation over water. See Ducote v. V. Keeler & Co.,

Inc. , 953 F.2d 1000, 1003 (Sth Cir. 1992) (‘‘therefore we look

to whether the structure has features that objectively suggest that

one of its primary purposes may be transportation over water’’).

The Fifth Circuit looks at the following physical characteristics

of a structure in determining whether it is a vessel: (1) navigational

aids; (2) raked bow; (3) lifeboats and other lifesaving equipment;

(4) bilge pumps; (5) crew quarters; (6) registration as a vessel with

the Coast Guard; (7) intention of owner to move the structure

on a regular basis; (8) ability of the submerged structure to be

refloated despite years of corrosion and deterioration; (9) length

of time the structure has remained stationary. See Johnson v.

Odeco Oil and Gas Co., 864 F.2d 40, 43 (Sth Cir. 1989). The

Eleventh Circuit also considers the design of the watercraft, and

its physical characteristics. See Hurst v. Pilings & Structures, Inc.,

896 F.2d 504, 506 (11th Cir. 1990) (‘‘the critical inquiry is the

purpose for which the craft was constructed and the business in

which it is engaged’’). Conversely, the First Circuit does not look

at the purpose for which a vessel is constructed or designed. See

_ Majority Opinion at 9 (‘‘current use, not previous purpose, should

be the test’’). In his dissenting opinion, Judge Torruella notes

that the First Circuit’s novel rule ‘‘creates a new split’’. Jd. at 24.

2. Application of the tests in factually similar cases has

produced diametrically different results.

The First Circuit has destroyed uniformity of federal maritime

law. If Rocco DiGiovanni had been injured-in Louisiana instead

of in Rhode Island, the jury verdict on his Jones Act claim would

be allowed to stand. The Fifth Circuit recently held that, a man

performing the same type of work as DiGiovanni on the same

type of vessel that moved with the same amount of frequency

could be found to be a Jones Act seaman. See Sharp v. Johnson

Bros. Corp., 917 F.2d 885 (Sth Cir. 1990). Both DiGiovanni’s

employer and Sharp’s employer were construction companies

specializing in bridge and dock building. The project in both cases

involved the driving of piles for the erection of piers. The Sharp

vessel was similar to the BETTY F in many ways: it, too, was

a spud barge with a raked bow, bilges, and navigation lights; it

carried a crane and was ‘‘spudded”’ or anchored at the time of

the accident; it moved away from the trestle at the end of every

shift; it moved away from the job site several times in the months

preceding the accident, and, it had a flat deck supply barge to

transport materials to and from the work site. See Sharp, supra.

In an even more recent case, the Fifth Circuit held that a crane-

carrying spud barge that was moved at the time of the accident

and that was used primarily as a work platform would support

a jury finding of ‘‘vessel’’ for Jones Act purposes. See Ducote,

supra.

B. The Conflict Between the First Circuit and the Supreme Court.

The DiGiovanni case is an affront to this Court’s recent

decision of Southwest Marine, Inc. v. Gizoni, 112 S. Ct. 486

(1991). Unlike the BETTY F, the Gizoni structures were without

power, means of steering, navigation lights, navigation aids, or

living facilities. However, this Court still affirmed the Ninth

Circuit’s opinion holding that questions of faci existed as to

whether the floating platforms were vessels in navigation.

This Court has also found non-conventional watercraft which

had less mobility than the BETTY F to be vessels for Jones-Act

purposes in less recent cases. In Gianfala v. The Texas Co., 350

U.S. 879 (1955), the plaintiff worked on a drilling barge, which

would be brought to the work site on a daily basis by boat. The

barge only moved from one location to another approximately

one time per year. The Texas Co. v. Gianfala, 222 F.2d 382, 384

(Sth Cir. 1955). It was without navigation lights. At the time of

the accident, the barge’s spuds were in place, and, around the

drilling hole, pes had been driven and board planking had been

nailed to the vertical piles to hold the barge in place. The Fifth

Circuit reversed the jury finding of seaman status. 222 F.2d at

387. This Court reversed the Fifth Circuit’s decision, and remanded

the case to the District Court with directions to reinstate its

judgment. 350 U.S. at 879. In Senko v. La Crosse Dredging Corp.,

the vessel in question was a dredge that had been anchored to

shore at all times during the plaintiff's employment and was seldom

moved. 352 U.S. 370 (1957). This Court gave little weight to the

relative immobility of the dredge or the fact that it was tied to

the shore:

Even a transoceanic liner may be confined to berth

for lengthy periods; and while there the ship is kept

in repair 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 .. .

thus, the fact that this dredge was connected to

the shore cannot be controlling.

Senko, 352 U.S. at 373.

The DiGiovanni case also conflicts with this Court’s rationale

behind McDermott Industrial, Inc. v. Wilander, 111 S. Ct 807

(1991). It is inconsistent for the First Circuit to fail to recognize

special purpose vessels where this Court has recognized special

purpose seamen. The Court recognized that ‘‘navigation is not

limited to putting over the helm. It embraces duties essential for

other purposes of the vessel.’” 111 S. Ct. 812. A vessel by its very

nature transports people or cargo across navigable waters to

perform a specific function, whether it is to catch fish; to allow

people to gamble offshore; or, to carry a crane and supplies to

build a bridge to span a waterway.

C. The Conflict Between the First Circuit and Twenty-Seven

Federal Maritime Statutes.

In a blistering dissenting opinion, Judge Torruella points out

that ‘‘at least twenty-seven federal maritime or maritime related

laws define ‘vessel’ in such a manner as to clearly include the

BETTY F within the scope of their description’’. See Dissenting

Opinion at 12a, and Appendix to Dissenting opinion. For example,

the definition of the word ‘‘vessel’’, enacted as a rule of general

construction of federal statutes, is as follows: ‘‘Every description

of water craft or other artificial contrivances used, or capable

of being used, as a means of transportation on water’’. 61 Stat.

633, 1 U.S.C.§ 3. Notwithstanding the lack of statutory definition

for the term ‘‘vessel’’ in the Jones Act, the leading admiralty

treatise states that the statutory definitions of the term and its

meaning under the Jones Act should be virtually the same:

There is no legally significant difference between

the statutory definition of the term ‘‘vessel’’ and

the meaning attributed to it by the general maritime

law as obtaining in this country . . . It is highly

unlikely that Congress in formulating a definition

of a word of so immediate a connection with

maritime law and so likely to recur in maritime

legislation would have intended materially to depart

from the meaning under the general maritime law

It is manifest that the legislation was

predicated on the assumption that the statutory

definition was identical with the meaning under

the general maritime law.

| Friedell, Benedict on Admiralty § 165, at 10-13 (7th ed. 1991).

THE FIRST CIRCUIT’S NOVEL TEST IS ERRONEOUS,

DIFFICULT TO APPLY, AND WILL SPAWN FURTHER

LITIGATION.

It is not entirely clear what the First Circuit’s new definition

of ‘‘vessel’’ is. One way to interpret the decision is that one must

first analyze any structure to determine whether its purpose or

primary business is navigation or commerce. If it is not, a worker

may only be considered a seaman when the structure is in actual

navigation or transit. Another way to interpret the decision is

that the above analysis applies only to a barge or float, and not

to vessels in the traditional sense.

Either interpretation is seriously flawed. Under the first

interpretation, a vessel in the most conventional and traditional

sense could be considered a non-vessel if its purpose or primary

business were not navigation or commerce. Boats used to carry

people offshore for gambling purposes, or ships berthed for

lengthy periods of time could be considered non-vessels under

this interpretation. A problem with the second interpretation is

that the First Circuit does not offer any guidelines on how to

make the threshold determination as to whether a structure is

a ‘‘vessel’’ or a ‘‘barge or other float’’. If the design of the

structure or the purpose for which it was constructed cannot be

considered in making this initial determination, what criteria can

be used? The BETTY F had eight of the nine physical

characteristics of a vessel as enunciated by the Fifth Circuit in

Johnson, supra. Why then did the First Circuit consider it to be

a barge as a matter of law? The First Circuit has mistakenly

confused a barge designed and used for transportation over

navigable waters with a work platform designed and built ashore

to be used at sea in a permanent location. However, the First

Circuit fails to define the term ‘‘barge’’, and even the

commentators do not have a precise definition of the term. See

Bloomster, Sailing and Small Craft Down the Ages, at 95 (George

Banta Co. 1940) (‘‘the term ‘“‘barge’’ has been applied to numerous

types of vessels throughout the centuries’’). See a/so, T. Hartman,

The Guinness Book of Ships and Shipping, at 238 (Butler and

Tanner LTD. 1983) (‘‘barge’’ has been used at various times to

describe different types of vessels). One term in the First Circuit’s

flawed test which causes confusion is ‘‘primary purpose’’. The

First Circuit no longer looks to the purpose for which a vessel

is constructed, and the decision does not offer any guidance as

to how the term should be applied. Is ‘‘primary purpose’’ a

function of the number of voyages that a structure makes in a

given month? Is it the length of the voyages that a court should

look to? Or, is it whether a structure is moving more often than

it is standing still? The First Circuit has seemingly ruled that if

a structure (which would be considered a vessel by any statutory

definition, and even though built and designed for transportation

across navigable waters) functions as a work platform more often

than it plies the waterways, it is not a vessel. This could lead to

absurd results. Every vessel is a work platform. If a fishing vessel

were used more frequently to clean, process and freeze fish than

to actually catch fish, would that make it a work platform and

not a vessel? If a traditional vessel transports passengers one

quarter mile offshore so that they may legally gamble and the

vessel remains stationary for two weeks at a time, does that render

the vessel a work platform and deny its captain and crew recovery

under the Jones Act?

Another term in the test that is certain to pose problems is

‘tin navigation’. The First Circuit has confused the term ‘‘in

navigation’’ with the term ‘‘in transit’’. There is no rational basis

for making a distinction between navigation by the use of “‘moving

with spuds’’; by the use of deck winches to which lines leading

to anchors are attached, enabling the vessel to navigate by means

of reeling itself closer to the anchors; or, to the traditional

propulsion by engine. Traditionally, the term ‘‘vessel in

navigation’’ is a term of art and relates only to its capacity to

sail or be moved over navigable waters. To illustrate, a vessel

is ‘tout of navigation’’ where it is in drydock for an extended

period of time or is permanently anchored or secured to the ground

sO as to lose its capacity for mobility. The leading treatise on

admiralty notes, ‘‘[T]he structure does not, however, have to be

in navigation at the precise moment that the injury to the alleged

seaman occurred’’. 1B Bellman, ef a/., Benedict on Admiralty

§ lla, at 2-6 (6th ed. 1990).

A final term that will spawn further litigation is the meaning

of the word ‘‘commerce’’. Every dictionary defines commerce

as business. How, then, can a commercial barge, float, or vessel

not be considered as involved in commerce or business?

The building of piers and bridges spanning waterways is a

traditional maritime activity, and special purpose craft are

necessary to do the job. The BETTY F was not a platform built

ashore and moved to a permanent worksite. Rather, it was built

for the purpose or primary business of navigation or commerce.

Even under the First Circuit’s flawed standard the BETTY F

qualifies as a vessel. The job site could not be reached by land-

based pile drivers, hence the necessity for vessels like the BETTY F.

Courts have traditionally focused on the extraordinary

dangers, hazards, and risks to which the sea exposes workers,

and have made every effort to protect them by affording a remedy,

rather than withholding it. DiGiovanni worked on the water and

was exposed to these dangers and hazards on a daily basis. As

such, he was subject to the vicissitudes of the wind, water and

tide, and the perils of navigating and ballasting a vessel carrying

a crane and ten ton hammer. He was certainly more exposed to

maritime perils than the croupier on a gambling boat, or the hair

stylist on a cruise ship.

THIS ISSUE SHOULD BE RESOLVED BECAUSE IT

DIRECTLY AFFECTS A LARGE NUMBER OF PEOPLE.

This case should be heard by this Court due to the large

number of barges in this country, the ever increasing amount of

barge traffic and concomitant accidents, and the great volume

of maritime tort cases pending nationwide. Between 1978 and 1988,

the number of registered vessels rose 33 1/3%. National

Transportation Statistics Annual Report (July 1990). Of the 40,000

registered vessels, 31,125 were presumably barges (non-self-

propelled vessels). /d. at 32. Moreover, 6,367 vessels were involved

in marine accidents in 1988, a 15% increase over the previous

year. /d. at 80. During that same period of time, the number

of millions of tons of goods moved by barge increased from 3.8

tons to 4.6 tons, an increase of 21%. See Waterborne Commerce

of the United States (Army Corps. of Engineers 1989). Over the

past five years, approximately 3,000 maritime personal injury suits

have been commenced annually; at any given time, there are

roughly 4,000 maritime personal injury suits pending. See Annual

Report of the Director of the Administrative Office of the United

States Courts (1987-1991).

Uniformity in federal maritime law is traditional and essential

for the commerce of this nation. Only recently this Court has

decided two cases to promote uniformity of maritime law. See

Wilander,.supra, and Gizoni, supra. In fact, decisions upho!ding

the uniformity of maritime law use that criterion as the supreme

decision maker. See Moragne v. States Marine Lines, Inc., 398

U.S. 375 (1970). The result in a given maritime case should not

hinge on the locus where the incident occurred.

CONCLUSION

For these various reasons, this petition for certiorari should

be granted, or in the alternative, this Court should reverse the

decision of the First Circuit Court of Appeals, and remand this

case to the District Court with an order to reinstate the judgment

upon jury verdict.

Respectfully submitted,

DAVID B. KAPLAN

THOMAS M. BOND

THE KAPLAN/BOND GROUP

Attorneys for Petitioner

—niti—h—eu—————vz~

APPENDIX A — OPINION EN BANC OF UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT DATED

MARCH 4, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 90-1957

ROCCO P. DIGIOVANNI, JR.,

APPELLEE,

TRAYLOR BROTHERS, INC.,

APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

(Hon. Ernest C. Torres, U.S. District Judge}

Before

Breyer, Chief Judge,

Aldrich, Senior Circuit Judge,

Campbell, Circuit Judge,

Bownes, Senior Circuit Judge,

Torruella, Selya and Cyr, Circuit Judges.

Andrew Rothschild with whom Eric D. Paulsrud, John D.

Husmann, and Lewis, Rice & Fingersh were on brief for appellant.

Appendix A

David B. Kaplan with whom Thomas M. Bond, The

Kaplan/Bond Group, Paul Gallogly, and Lovett, Schefrin,

Gallogly & Harnett were on brief for appellee.

March 4, 1992

OPINION EN BANC

ALDRICH, Senior Circuit Judge. Defendant petitions for

rehearing on the single issue of Jones Act recovery, renewing its

claim that plaintiff, a member of the carpenter’s union, is not

a seaman, and the barge, the BETTY F, was not to be regarded

as a vessel, particularly in light of a number of recent cases, notably

in the Fifth Circuit. It asks us to reconsider our holding in Bennett

v. Perini Corp., 510 F.2d 114 (Ist Cir. 1975). Defendant asserts

that, by speaking in terms of vessels, we have extended the concept

of special protection needed for seamen exposed to the perils of

the sea to workers who are not even theoretically so endangered.

This, allegedly, is a carry-over of outmoded Supreme Court

decisions, post. We will reconsider.

Briefly, the facts are these. The BETTY F was a barge, 100

feet in length, with a 40 foot beam and a raked bow and stern,

and with nautical equipment, such as navigation and anchor lights.

In all respects it met the commonly understood characteristics

of a vessel, and, indeed, was inspected by the Coast Guard. It

had no means of self-propulsion, except that positional movement

could be achieved by manipulating its spud anchors. Its current

use was to float at the Newport, Rhode Island, bridge, bearing

a crane that was being used for bridge construction. Its permanent

station was Davisville, Rhode Island, from which it was towed,

by a tug, from time to time, to perform various shore jobs. It

had been at the Newport bridge for a month. It was positioned

Appendix A

about the bridge, and moved away from the pilings at night, to

prevent damage.

Plaintiff's principal duty was to handle a tag line to guide

the crane, but he also did maintenance work, such as painting,

and tended lines. Although he was attached to the BETTY F,

at the time of his injury he was standing on the deck of a supply

barge in order better to manipulate the line. Its deck proved to

be slippery, and he fell. The supply barge was in general use to

carry supplies, but also served as a work platform.

The district court put special questions to the jury as between

plaintiff being a Jones Act seaman and a harbor worker, and

stated it could find the former — with greater rights — if he was

attached to a vessel. Following Bennett, it stated, ‘“‘A special

purpose structure not usually employed as a means of transport

by water, but designed to float on water may also be considered

a vessel,’ and said nothing about its current use. The jury

answered that plaintiff was a seaman, and defendant, having duly

saved its rights, appealed. A panel, unanimous because it felt

bound by Bennett, affirmed. This petition followed.

The Jones Act itself, 46 U.S.C. § 688, does not use the words

ship and vessel, and speaks only of seamen, but courts have

naturally spoken of seamen in terms of ships, vessels, and voyages.

Thus in the recent case of McDermott International, Inc. v.

Wilander, 111 S. Ct. 807, 814 (1991), the Court repeated the

definition given in Warner v. Goltra, 293 U.S. 155 (1934), ‘‘a

seaman is a mariner of any degree, one who lives his life upon

the sea. It is enough that what he does affects ‘the operation and

welfare of the ship when she is upon a voyage.’ ’’ Warner, 293

U.S. at 157 (citing The Buena Ventura, 243 F. 797, 799 (S.D.N.Y.

1916)); see also, Norton v. Warner Co., 321 U.S. 565, 572 (1944).

Appendix A

And, of course, a vessel does not cease to be a vessel when she

is not voyaging, but is at anchor, berthed, or at dockside. See

Powers v. Bethlehem Steel Corp., 477 F.2d 643, 648 (Ist Cir.),

cert. denied, 414 U.S. 856 (1973). This practical fact availed the

Court to hold that stevedores substituting for seamen in doing

conventional seamen’s work when the vessel was docked should

equally come under the Act. Seas Shipping Co. v. Sieracki, 328

U.S. 85 (1946). The reasoning was that the stevedore was

‘‘incurring a seaman’s hazards.’’ /d. at 99. In point of fact this

could be said to be making the exception the rule. Seamen who

go down to the sea in ships incur special hazards on the sea, not

at dockside.' The reasoning that favors not interrupting their

coverage during a temporary cessation of those risks does not

equally favor opening the coverage to workers who substitute for

seamen only during non-hazardous, non-voyage, intervals. This,

however, was once law.’ The battle between the Court and

Congress, met by revisions in the Longshore and Harbor Workers’

Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as amended,

33 U.S.C. §§ 901-950, detailed in Wilander, 111 S. Ct. at 810-13,

was won by Congress. Longshoreman and seaman status are now

1. Because Wilander has now quoted it with approval, we repeat Chief

Justice Stone’s dissent in Sieracki. ‘‘Seamen are in some sort co-adventurers

upon the voyage; and lose their wages upon casualties, which do not affect

artisans at home. They share the fate of the ship in cases of shipwreck and

capture. They are liable to different rules and sufferings from landsmen.’’ 328

U.S. at 105 (citing Reed v. Canfield, 20 F. Cas. 426, 428 (C.C.D. Mass. 1832)).

2. One member of this panel still recalls Gutierrez v. Waterman Steamship

Corp., 373 U.S. 206 (1963), where we were reversed for denying the warranty

of seaworthiness to a longshoreman who never set foot on the ship, but who

was injured on the dock by unloaded cargo that had been improperly packaged;

a defect held to make the ship unseaworthy, to plaintiff’s benefit. Justice Harlan

dissented. Gutierrez is now flotsam.

inseneeenaiie eine

Appendix A

mutually exclusive. 111 S. Ct. at 817. ‘‘All who work at sea in

the service of a ship face those particular perils to which the

protection of maritime law, statutory as well as decisional, is

directed.’’ Jd. (emphasis supplied). We followed that concept to

a considerable extent in Powers, 477 F.2d 643 (1st Cir. 1973),

ante, but we did so in terms of whether the structure was a vessel.

The structure on which plaintiff was working was a raft, made

of 12 x 12 timbers bonded together, used as a floating platform

for pile workers and carrying sandblasting equipment and forms

under piers to be placed around piles. We held it was not a vessel

in spite of ‘‘occasional ‘voyages’ — when towed by workboat

from one pier to another.’’® /d. at 647.

Rafts, of course, may be designed or used ‘to

encounter perils of navigation . . . . But we cannot

reasonably describe the present raft as other than

a floating stage. Even with men and equipment

On it, its movement, amounting mostly to a

positioning under the pier incidental to its intended

use, was not navigation.

Id. (emphasis supplied). Later in the opinion, we remarked that

“the law of admiralty [is] ‘designed and molded to handle

problems of vessels relegated to ply the waterways of the world,’ ”’

id. at 648 (citing Executive Jet Aviation, Inc. v. City of Cleveland,

409 U.S. 249, 269 (1972)). Two years thereafter, however, we

moved a long way from a waterway, holding that a pier worker

who fell from a pier onto another land-based platform could

3. “It had .. . also been towed through Boston harbor to other jobs.”’

477 F.2d at 645.

Appendix A

recover under the Jones Act because the barge on which he also

worked, Scow 101, could be found to be a vessel. Bennett v. Perini

Corp., 510 F.2d 114 (Ist Cir. 1975). In a comparatively brief

discussion, we distinguished Powers, saying that Scow 101’s

seagoing range And versatility are greater... . To

be a vessel, the purpose and business must fo some

reasonable degree be the ‘transportation of

passengers, cargo, or equipment from place to

place across navigable waters.’ Powers at 477 F.2d

647. A major function of Scow 101 appears to have

been the transportation of the structural materials

and tools used to build the bridge and the crane

across the navigable waters of Narragansett Bay.

$10 F.2d at 116 (emphasis supplied).

Having determined that because of its ‘‘major function’’ of

transportation, the scow was a vessel, the Bennett court faced

the question whether plaintiff ‘‘ ‘contributed to the function. . .

or to the accomplishment of its mission.’ ’’ /d. (quoting Offshore

Co. v. Robison, 266 F.2d 769, 779 (Sth Cir. 1959)). We noted

that, as a carpenter, plaintiff spent much of his time on the pier.

However,

there was evidence that a major part of the

carpentry work was regularly done on the deck

of Scow 101, where the additional space provided

a necessary platform for constructing and

reworking the panels.

* * . *

Appendix A

[T]he ‘mission’ of Scow 101 was to provide a

support base for the construction of the bridge

piers. Appellant’s duties, if not obviously maritime,

related to that function and were arguably essential

for its satisfactory performance.

510 F.2d at 117. Thus while Powers’ raft’s transportation of

sandblasting equipment from pier to pier, and ‘‘through Boston

Harbor to other jobs,’’ was ‘‘incidental,’’ to its ‘‘intended use,”’

Scow 101’s transportation of a crane across Narraganset Bay was

**to some reasonable degree’’ a ‘‘major function,’’ and made the

pier worker a seaman.

This produced a difficult dividing line. It is particularly

troublesome in light of the fact that plaintiff Bennett was not

a user of the crane, and thus connected with what was transported,

but was simply using the floating deck space, comparable to the

Powers raft, which this court described as ‘‘an extension of the

pier, itself an extension of the land.’’ 477 F.2d at 648. Nor, if

transportation — the voyage — is the key to maritime

responsibility, did the Bennett court make any mention of the

length of jobs, and consequent voyage frequency. What we did

was quote the amorphous wording of the Offshore Company

opinion, ‘‘The ‘injured workman [can go to the jury if he] 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).’ ’’ 510 F.2d at 115 (quoting

Offshore, 266 F.2d at 779), rather than the language of Powers

stressing ‘‘special purpose floating structures whose function

requires exposure to the hazards of the sea.’’ 477 F.2d at 647.

This language from Offshore did not survive. Many decisions

Appendix A

later, in Bernard v. Binnings Construction Co., 741 F.2d 824 (Sth

Cir. 1984), Offshore was relegated to a footnote. Floating is not

enough. /d. at 828 n.13. Nor is ‘‘capability of movement across

navigable waters.’’ /d. at 829. Rather, the test is whether it

was designed'‘' or used primarily for the

transportation of cargo, equipment or persons

across navigable waters or was, at the time of

Bernard’s injuries, engaged in navigation.

Id. The court also noted

. that a structure whose purpose or primary business

is not navigation or commerce across navigable

waters may nonetheless satisfy the Jones Act’s

vessel requirement if, at the time of the worker’s

injury, the structure was actually in navigation.

Id. (emphasis in original).

This standard, as applied in a number of other Fifth Circuit

cases,’ looking to use, rather than simply to the physical!

characteristics of the structure, does appear a reasonable resolution

of Jones Act principles as against mere definitions of vessels to

4. Even this word was uncalled for. Current use, not previous purpose,

should be the test. Ducrepont v. Baton Rouge Marine Enters., Inc., 877 F.2d

393, 396 (Sth Cir. 1989).

5. E.g., Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (Sth

Cir. 1990); see also Hurst v. Pilings & Structures, Inc., 896 F.2d 504 (11th Cir.

1990).

Appendix A

convert longshoremen into seamen. A worker becomes a seaman

not by reason of the physical characteristics of the structure to

which he is attached, but because its being operational ‘‘in

navigation’’ exposes him to ‘‘a seaman’s hazards.’’ He is not

exposed by what the vessel did in the past, or by its future potential,

and to give him these special benefits by mechanical definitions

without the exposure is misplaced generosity as in Gutierrez, n.2,

ante. Just as we relied on Offshore in the past, we believe we

should now accept the Fifth Circuit’s improved version. In sum,

if a barge, or other float’s ‘‘purpose or primary business is not

navigation or commerce,’’ then workers assigned thereto for its

shore enterprise are to be considered seamen only when it is in

actual navigation or transit.

That there should be a varying status designation depending

on the activity at the moment is not a novel concept. In Victory

Carriers, Inc. v. Law, 404 U.S. 202 (1971), a longshoreman who,

because unloading, would have had unseaworthiness recovery

under the Jones Act, per Gutierrez, for a ship-caused injury, was

injured instead using the stevedore’s equipment. Recovery was

not allowed. We believe our division of responsibility to the activity

equally appropriate.

Our rule is also in entire accord with Wilander’s, language

quoted in the second paragraph of this opinion and in n.1, ante.

In holding that every member of the ship’s complement comes

within the Jones Act, Wilander referred to the ‘‘voyage,’’ and

“‘vessels in navigation.’’ It spoke not in terms of the ship, but

of ‘‘[a]ll who work at sea in the service of a ship [and] face those

particular perils to which the protection of maritime law, statutory

as well as decisional, is based.’’ 111 S. Ct. at 817.

Again, more recently in Southwest Marine, Inc. v. Gizoni,

10a

Appendix A

112 S. Ct. 486, 494 (1991), where the plaintiff was working on

a floating platform, the Court referred to the opinion below,

saying,

The Ninth Circuit concluded that questions of fact

existed regarding whether the floating platforms

were vessels in navigation, and whether Gizoni had

sufficient connection to the platform to qualify

for seaman status.

(Emphasis supplied.) What is particularly interesting is the record

which the Court held presented a jury question on each of these

issues. It appeared from the opinion below, Gizoni v. Southwest

Marine, Inc., 909 F.2d 385 (9th Cir. 1990), that defendant was

a ship repairer who used floating platforms to support the

workmen, and to carry materials and equipment. Plaintiff was

on such a platform engaged in transporting a rudder to a ship

when his foot went through the deck. Although plaintiff was a

rigging foreman, his duties included handling lines, and he

occasionally served as a lookout and gave maneuvering signals

to the tugboat operator. 909 F.2d at 387. The platform, in other

words, at the time of plaintiff’s injury, was engaged in

transportation, and plaintiff was a participant in that operation.

Under our rule we would be more favorable to the worker

than was the Gizoni Court, if its language as to there being an

issue of fact be regarded as a ruling. Clearly we would have felt

the worker within the exception even if, during actual repair work

to a floating ship, there was no navigation or commerce. But what

is even more clear is that the present plaintiff does not measure

up to Gizoni. The BETTY F had transported nothing for a month

since it left defendant’s headquarters in Davisville. Since then it

was simply moved about the piers for working convenience, and

lla

Appendix A

at night for safety. This was hardly navigation or commerce, and

did not diminish the primary nature of the platform’s shore use

and purpose. See Ellender v. Kiva Construction & Engineering,

Inc., 909 F.2d 803, 807 (Sth Cir. 1990). Correspondingly, that

plaintiff occasionally adjusted lines for pier movement and the

rise and fall of the tides, did not expose him to the risks of a

voyage.

There is a suggestion that the supply barge, on which plaintiff

was injured, was operating as a vessel. This barge was in general

use, and was not ‘‘attached’’ to the BETTY F, and plaintiff was

not ‘‘assigned permanently’’ thereto. Bennert, 510 F.2d at 116.

Nor did he use it except as a work platform. Whether plaintiff

is to be considered a seaman must depend upon the BETTY F.

A final word. Our denying Jones Act recovery does not end

this case. The court put alternate questions to the jury; posing

simple negligence under the LHWCA if the jury did not answer

the Jones Act questions favorably. Since it did answer favorably,

it did not answer the alternate negligence questions. In all fairness,

there should be a new trial, with that heavier burden.

Reversed and remanded for further proceedings consistent

herewith.

Dissent follows.

12a

Appendix AU + —

TORRUELLA, Circuit Judge, with whom BOWNES, Senior

Circuit Judge, joins (Dissenting). William Shakespeare tells us

in a famous passage from Romeo and Juliet that labels are not

important, but rather that content is what counts.°® In more recent

times, Gertrude Stein had similar advice.’ Although poetic

philosophy seems far removed from the hard world of maritime

torts, I believe that the counsel found in those quotations has

definite relevance to the issue that separates my views from those

of my colleagues in the majority.

Notwithstanding the lack of a statutory definition for the

term ‘‘vessel’’ in the Jones Act, 46 U.S.C. § 688, at least twenty-

seven (27) federal maritime or maritime related laws’ define

‘*vessel’’ in such manner as to clearly include the BETTY F within

the scope of their description. The BETTY F is thus a ‘‘vessel’’

under the Shipping Act, 46 U.S.C. § 2101(45), and the Merchant

Marine Act, 46 U.S.C. § 801. It is covered as such by the

International and Inland Rules of the Road, 33 U.S.C. §§ 1601(1),

2003(a), can be mortgaged under the Federal Ship Mortgage

Insurance Act, 46 U.S.C. § 1271(b), must have its bottom painted

within the restrictions of the Antifouling Paint Control Act, 33

6. ‘*What’s in a name? That which we call a rose

By any other name would smell as sweet.’’

Shakespeare, William, Romeo and Juliet. Il, ii, 43.

7. ‘*Rose is a rose is a rose is a rose.”’ Stein, Gertrude, Sacred Emily (1913).

8. 46 U.S.C. § 688:

Any seaman who shall suffer personal injury in the course

of his employment may, at his election, maintain an action

for damages at law, with the right of trial by jury.

9. See Appendix to this opinion.

l3a

Appendix A

U.S.C. § 2401(11), and even falls within the definition found in

the Sentencing Guidelines Act, 18 U.S.C. § 3615. In contrast,

I have found no federal maritime statute which would label the

BETTY F anything other than a vessel. It would seem that the

weight of these Congressional pronouncements alone would be

enough to sustain appellee’s case if for no other reason than by

its recognition of the time honored doctrine of in pari materia.

See McDermott Int’l, Inc. v. Wilander, 111 S. Ct. 807, 811 (1991);

Morissette v. United States, 242 U.S. 246, 263 (1952); United States

v. Porter, 591 F.2d 1048, 1053 (Sth Cir. 1979).

Because ‘‘[t]he inquiry 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,’? Southwest Marine, Inc. vy.

Gizzoni, ___S. Ct.___ (1991); McDermott Int’l, Inc. vy.

Wilander, 111 S. Ct. at 818. I believe that it is useful to spell

the facts out in somewhat greater detail than is done in the majority

opinion.

THE FACTS

Appellee was injured aboard a supply barge while tending

tag lines to a crane aboard the barge to which he was assigned,

the BETTY F. These two barges worked together with the supply

barge not only carrying supplies to be used aboard the BETTY

F, but more significantly, transporting part of BETTY F’s crane

at the time of the accident.

The BETTY F is a typical steel-hulled barge designed to

transport Cargo or act as a work platform. It is 100 feet in length

overall, has a 40 foot beam, raked bows and stern, and carries

a roll-on crane in its aft area. It has toilet facilities for the crew,

and what amounts to a galley in the form of an enclosed cafeteria

l4a

Appendix A

with a stove and refrigerator, where the -rew regularly take their

meals. A tool shack and a sitting area are located in its bow section.

The evidence presented at trial established that this vessel is

routinely inspected by the Coast Guard for compliance with its

regulations, as well as by surveyors for marine insurance purposes.

Sea trials are also conducted to determine its seaworthiness and

insurability.

As part of its compliance with Coast Guard requirements,

the BETTY F had port and starboard navigation lights which

were used when the barge was moved at night. It also carried

and used anchor signals when not in movement, white balls which

are hoisted when working at anchor in day time and a white anchor

light and whistle for working at night. As required by regulations,

its name and home port, ‘‘Wilmington, Delaware,’’ are painted

on its stern. Pilsom marks, indicating its load lines, are painted

On its sides as is normally the case with other vessels. By observing

these markings, the BETTY F’s ballast is periodically shifted, thus

maintaining a seaworthy trim. The BETTY F was frequently

boarded and inspected by the Coast Guard pursuant to its legal

duty to see that vessels are in compliance with the maritime laws

of the United States. See 14 U.S.C. § 2; Dougherty v. Santa Fe

Marine Inc., 698 F.2d 232 (Sth Cir. 1983) (Failure to follow any

Coast Guard regulation which is cause of an injury establishes

negligence per se).

The BETTY F was based in Davisville, Rhode Island, from

where it was towed by a tug to its various work locations, including

its workplace at the time of appellee’s injury, a bridge under

construction in Jamestown, Rhode Island. The tug moved the

BETTY F ‘‘to whatever area we were going to.’’ It was ‘‘moved

quite a bit.’’ In August, the month before appellee’s accident,

the BETTY F had been outfitted in Davisville. Although a tug

lSa

Appendix A

was used to move the BETTY F most of the time, it also had

four spud anchors which could be used to reposition the barge

once on location. At the location in question, the BETTY F was

moved away from the bridge’s pilings every night to prevent

damage by the tidal surge.

Appellee, as well as the rest of the BETTY F’s crew, were

transported to work each day from Davisville by a crew boat.

Although appellee’s principal duties on the BETTY F were as

a tagman for the crane, his work also included typical able

seaman’s duties aboard a steel vessel: chipping, painting and

providing basic maintenance to the hull, tending mooring lines,

fendering the vessel setting and resetting the anchors moving the

barge away from the bridge every night and ballasting the hull.

When moved by the tug, the BETTY F’s crew, including appellee,

worked together with the tug’s crew and under the tug captain’s

orders. In fact, many times appellee would actually be physically

aboard the tug during these operations.

As previously indicated, appellee was working on the supply

barge when he was injured. This barge is an integral part of the

BETTY F’s operation, and has no separate name or identification.

It is 80 feet in length and has a 40 foot beam. Towed by a tug,

it traveled back and forth on an almost daily basis from its main

base in Davisville, bringing materials and equipment to the BETTY

The record contains additional information, which although

admittedly less relevant, adds a definite maritime flavor to the

activities aboard the BETTY F. At least part of the BETTY F’s

crew was composed of former merchant seamen. The crew wore

life jackets while working aboard the BETTY F. The lingua franca

of the crew/witnesses with reference to the BETTY F is seaborn

16a

Appendix A

in nature, i.e., ‘“‘crew,’’ ‘‘aboard,’’ ‘‘load lines,’’ ‘‘ballast,’’

‘*anchors,”” ‘‘bow,’’ ‘“‘stern,’’ ‘‘forward,”’ ‘‘aft,’’ ‘‘alongside,’’

**midships,’’ ‘*‘deck’’ and ‘‘ashore.’’ This terminology is found

throughout the record. Although it might be argued that this is

stretching a self-serving argument, | point out that this language

~ was not only used by appellee’s witnesses but also by appellant’s

attorney throughout the trial, and his expert witness, Davis C.

Du Bois, who at all times during his testimony referred to the

BETTY F as a ‘‘vessel.’’ I suggest that this conduct reflects an

acceptance by appellant of an undeniable reality, at a time when

the status of the BETTY F as a vessel was taken for granted.'°

In fact, all who dealt with the BETTY F, the Coast Guard, its

crew, its owners, that is, all except this Court, treated the BETTY

F as if it were a vessel, not something else. Lest we forget, no

one argues that the BETTY F is physically or structurally any

different than the thousands of similar barges which ply the oceans

of the world or that the BETTY F is incapable of engaging in

such commerce. Rather, the downgrading of the BETTY F to

non-vessel status seems to be anchored on the frequency, or more

accurately, the infrequency, of its voyaging.

DISCUSSION

In my opinion the majority’s change in course fails to take

into account the Supreme Court’s traditionally liberal construction

in deciding who is a ‘‘seaman’’ under the Jones Act. See Cox

v. Roth, 348 U.S. 207, 210 (1954). We find the most recent

expression of this unswerving trend in the Court’s unanimous

decisions in Southwest Marine, Inc. v. Gizzoni, supra, and

10. | might add, only in half jest, that people usually do not name non-

vessels. This seems to indicate that the BETTY F's owners considered it enough

of a ‘‘vessel’’ to treat it in a traditional vessel fashion.

nai iiie

17a

Appendix A

McDermott Int’l Inc. v. Wilander, 111 S. Ct. at 814 (‘‘[t]he Jones

Act is a remedial statute’’).

In Wilander, Justice O’Connor clearly forecasts the outcome

of our present case in her discussion of the need for the concept

of a ‘‘vessel’’ to evolve with changing technology. Wilander, 111

S. Ct. at 812. Also of prime importance to the present controversy

is the Court’s citation, with apparent approval, of Offshore Co.

v. Robinson, 266 F.2d 769 (Sth Cir. 1959), from which we adopted

the rule in Bennett v. Perini Corp., 510 F.2d 114 (ist Cir. 1975),

which the majority now discards. /d. at 809. The ‘‘seaman’”’ in

Wilander, was a paint foreman whose duties ‘‘consisted primarily

of supervising the sandblasting and painting of various fixtures

and piping located on oil drilling platforms.’’ Wilander, 111 S.

Ct. at 809. Wilander was injured on one such platform. At the

time, he was assigned to a ‘‘paint boat’’ that contained equipment

used in sandblasting and painting the platforms. The drilling

platforms were attached to the ocean floor in a semi-permanent

manner.

The facts in Gizzoni sound equally familiar. Several floating

work platforms were also involved, including a pontoon barge,

two float barges, a rail barge, a diver’s barge, and a crane barge.

Gizzoni, 60 U.S.L.W. at 4021. Gizzoni was a rigging foreman

on these working platforms and rode them as they were towed

into place. The platforms were used to move equipment and

supplies around a shipyard and on and off vessels under repair.

| These platforms had no power, means of sieering, navigation

| lights, navigating aids or living facilities. They were moved by

tugs, which positioned them as needed. Gizzoni occasionally served

as lookout and handled lines from the crew. He was injured while

on a platform being used to transport a rudder from the shipyard

to a floating drydock in that yard.

aaa

18a

Appendix A

In Wilander the Court said that the issue of who is a

‘*seaman’”’ under the Jones Act [i.e., an employee who contributes

to the functions or mission of a vessel], is better characterized

as a mixed question of law and fact than as a pure question of

fact for the jury. Wilander, 111 S. Ct. at 818. But if there are

questions of fact ‘‘regarding whether the floating platforms were

vessels in navigation,’’ these must be submitted to the jury.

Gizzoni, 60.U.S.L.W. at 4023. However, if ‘‘underlying facts are

established, and the rule of law is undisputed, the issue is whether

the facts meet the statutory standard.’’ Wilander, 111 S. Ct. at

818. ‘*[S}ummary judgment as a directed verdict is mandated where

the facts and the law will reasonably support only one conclusion.’’

Id.

As I understand appellant’s position, particularly considering

the record before the district court, the facts as stated ante are

not substantially in dispute. See Appellant’s Brief at 3-7; Petition

for Rehearing, at 4. Appellant did not present any evidence

challenging appellee’s witnesses and the facts dealing with the

BETTY F. To this we must add that the BETTY F and the supply

barge (and perhaps the crew boat) are a ‘‘group of vessels’’ (see

Gizzoni, 60 U.S.L.W. at 4021). Although I believe that as a matter

of law it could be ruled that appellee was injured while working

on a ‘‘vessel,’’ I am willing for present purposes, to concede that

it is still arguably a jury question. /d. We thus look to the new

legal standard established by the majority.

Under Bennett v. Perini Corp., 510 F.2d 114, 116 (Ast Cir.

1975), relied upon by both the district court and the panel:

To be a vessel, the purpose and business must fo

some reasonable degree be the ‘‘transportation of

passengers, Cargo or equipment from place to place

across navigable waters.”’

19a

Appendix A

(Emphasis supplied).

The Fifth Circuit’s ‘‘standard,’’ which is purportedly adopted

by the en banc majority in place of Bennett, is found in Bernard

v. Binnings Construction Co., 741 F.2d 824, 829 (Sth Cir. 1984).

In reality the Fifth Circuit sets two different standards:

a. The first: ‘‘[A] structure whose purpose or primary

business is not navigation or commerce across navigable

waters may nonetheless satisfy Jones Act’s vessel

requirement if, at the time of the worker’s injury, the

structure was actually engaged in navigation.”’

/d, (Emphasis in the original).

b. The second: A Jones Act ‘‘vessel’’ is a structure which

‘“‘was designed or used primarily for the transportation

of cargo, equipment or persons across navigable waters

OR was, at the time of [the] injuries, engaged in

navigation.”’

/d. (Emphasis and capitals supplied.)

Thus, according to the Fifth Circuit a structure nor designed

for transportation must be in actual navigation to be a vessel.

See also Cook v. Belden Concrete Products, 472 F.2d 999, 1002

(Sth Cir. 1973), cert. denied, 414 U.S. 868 (1973). If it is designed

for transportation it does mot necessarily have to be in actual

navigation. I think it relevant to note that in discussing these

standards, as applied to ‘‘a variety of special purpose structures,’’

the Binnings court considers ‘‘the purpose for which the craft

was constructed and the business in which it is engaged,’’ as more

conclusive than ‘‘the size of the structure, its ability to float, the

20a

Appendix A

permanence of its fixation to shore or bottom, and the fact of

its movement across navigable waters .. .’’ Binnings, 741 F.2d

at 829 (footnotes omitted). As examples of special purpose

structures held to be vessels, the Binnings court lists a submersible

oil storage vessel facility (Hicks v. Ocean Drilling & Exploration

Co., 512 F.2d 817 (Sth Cir. 1975)), a submersible drilling barge

(Producers Drilling Co. v. Gray, 361 F.2d 432 (Sth Cir. 1966),

and a mobile drilling platform with retractable legs (Offshore Co.

v. Robinson, 266 F.2d 769 (Sth Cir 1959)).''

The new standard in the majority opinion is stated as follows:

{I]f a barge or other float’s ‘‘purpose or primary

business is mof navigation or commerce,’’ then

workers assigned thereto for its principal shore

enterprise are to be considered seamen only when

it is in actual navigation or transit.

See majority opinion, ante at 8. Although this rule purports to

follow Binnings, particularly when read in context with the rest

of the majority opinion, it is clearly more restrictive than Binnings.

It downgrades, if not totally eliminates, the ‘‘designed purpose

of the structure’’ standard and substitutes actual navigation as

the sole requirement. This goes far beyond what the Fifth Circuit,

or for that matter any circuit, has decided, and will create a new

split rather than mend old ones.

In addition to those already stated, there are, in my view,

11. Although the majority states in its draft that the language in Offshore

‘did not survive [Binnings],’’ and that Offshore was ‘‘relegated to a footnote

lin Binnings},"’ ante at 7, I find the ‘‘designed to float on water’’ language

in Offshore to be very much alive in the second Binnings rule quoted above.

2la

Appendix A

other important reasons for not adopting this new rule.

Stare decisis. The Bennett rule has been in effect since 1975.

It is well understood and has been followed without undue

difficulty by the bar and district courts. With due respect, I do

not believe the new rule is a sufficient enough reason to depart

from this established precedent, at the probable cost of creating

uncertainty that will lead to an influx of litigation.

The Bennett rule is a better rule. The Bennett rule more

accurately reflects the general maritime law, as is seen from the

definition of the term ‘‘vessel’’ in the 27 statutes cited. Applying

these definitions to the present situation would promote uniformity

in maritime law. In contrast, the new standard will lead to much

uncertainty as the same object may be a vessel or non-vessel from

moment to moment. The same person, doing the same work, on

the same object will receive different legal treatment depending

on a totally fortuitous condition. This balkanization of maritime

law will be for naught in resolving the owners’ insurance problems,

as they will still need protection against Jones Act claims for those

instances in which the object is legally transformed into a vessel

by reason of its movement.

As stated above, the new rule creates unpredictability and

haphazardness in its application. For example, does ‘‘actual

navigation’’ mean that once the barge comes to a stop and is

anchored or docked, it no longer is a ‘‘vessel’’ even if the condition

Causing the casualty was created or arose while the now non-vessel

was in movement? What about the inverse situation? What

principled reason is there for distinguishing between a barge and

an ocean liner once it is anchored or tied to the dock? Under

Wilander a dance instructor teaching passengers the ‘‘cha-cha-

cha’’ aboard an ocean liner tied to the dock is a **seaman,’’ but

22a

Appendix A

under the new rule, appellee, who actually does much more

traditional seaman’s work, would be denied Jones Act protection

because the BETTY F is secured to its spud anchors. What logical

reason is turere for such a distinction and how would such a rule

be framed if it is to make sense? Is the BETTY F ‘‘in actual

navigation’’ every night when it is moved away from the bridge

or in the mornings when it is moved again alongside? The

ambivalence raised by the new rule is endless. Given such

uncertainties, is it prudent to change our present rule absent firmer

guidance from the Supreme Court?

Finally, given the factual record in this case, I cannot see

how even under the new standard, the majority can conclude,

as a matter of law, that the BETTY F is not a ‘‘vessel.’’ At the

very least, the case should be retried on all issues, using the new

standard on the Jones Act cause of action as well.

I respectfully dissent.

23a

Appendix A

APPENDIX .

a. Rules of Construction Act (1 U.S.C. § 3):

The word ‘‘vessel’’ includes every description of watercraft

or other artificial contrivance used, or capable of being

used, as a means of transportation on water. (Emphasis

supplied.)

b. The Shipping Act (46 U.S.C. § 2101(45)):

[“‘VJessel’’ has the same meaning given that term in Section

3 of Title 1.

c. Merchant Marine Act of 1920 (46 U.S.C. § 801):

[A]ll water craft and other artificial contrivances of

whatever description and, at whatever Stage of

construction, whether on the stocks or launched, which

are used or capable of being or are intended to be used

as a means of transportation on water. (Emphasis

supplied.)

d. International Navigational Rules of 1977 (33 U.S.C. § 1601(1)):

‘*Vessel’’ means every description of watercraft, including

nondisplacement craft and seaplanes, used or capable of

being used as a means of transportation on water.

(Emphasis supplied.)

e. The Inland Navigation Rules Act of 1980, Rule 3(a) (33 U.S.C.

§ 2003(a)):

24a

Appendix A

The word ‘‘vessel’’ includes every description of watercraft,

including nondisplacement craft and seaplanes, used or

capable of being used as a means of transportation on

water. (Emphasis supplied.)

f. Public Health Service Act (42 U.S.C. § 201(i)):

The term ‘‘vessel’’ includes every description of watereraft

or other artificial contrivance used, or capable of being

used, aS a means of transportation on water, exclusive

of aircraft and amphibious contrivances. (Emphasis

supplied.)

g. Excise Taxes Act (26 U.S.C. § 5688(c)):

[‘‘V]essel’’ includes every description of watercraft used,

or capable of being used, or a means of transportation

in water or in water and air; . . . (Emphasis supplied.)

h. Whaling Convention Act (16 U.S.C. § 916(e)):

Vessel: The word ‘‘vessel’’ denotes every kind, type or

description of watercraft or contrivance subject to the

jurisdiction of the United States used, or capable of being

used, aS a means Cf transportation. (Emphasis supplied.)

i. Neutrality Act ci 1939 (22 U.S.C. § 456(c)):

The term ‘‘vessel’’ means every description of watercraft

and aircraft capable of being used as a means of

transportation on, under, or over water. (Emphasis

supplied.)

| iene aii

25a

Appendix A

j. Navigation Act of 1974 (33 U.S.C. § 1502(19)):

[“*VJessel’’ means every description of watercraft or other

artificial contrivance used as a means of transportation

on or through the water.

k. Deepwater Ports Act (33 U.S.C. § 1502(19)):

(‘*VJessel’’ means every description of watercraft or other

artificial contrivance used as a means of transportation

on or through the water.

|. The Oil Pollution Act of 1990 (33 U.S.C. § 701(37)):

[‘*V]essel’’ means every description‘of watercraft or other

artificial contrivance used, or capable of being used, as

a transportation on water, other than a public vessel.

(Emphasis supplied.)

m. The Sentencing Guidelines Act (18 U.S.C. § 3615):

As used in this section ‘‘vessel’’ includes every description

of watercraft used, or capable of being used as a means

of transportation in water or in water and air. (Emphasis

supplied.)

n. 18 U.S.C. § 3667:

As used in this section, ‘‘vessel’’ includes every description

of watercraft used, or capable of being used, as a means

of transportation in water or in water and air. (Emphasis

supplied.)

26a

Appendix A

o. The Communications Act of 1934 (47 U.S.C. § 153(w)(i)):

[‘*V]essel’’ includes every description of watercraft or other

artificial contrivance, except aircraft, used or capable of

being used, as a means of transportation on water, whether

Or not it is actually afloat. (Emphasis supplied.)

p. The Tariff Act of 1930 (19 U.S.C. § 1401(a)):

The word ‘‘vessel’’ inc!udes every description of watercraft

or other contrivance used, or capable of being used, as

a means of transportation in water, but does not include

aircraft. (Emphasis supplied.)

q. The Interstate Act Against Importation and Exportation of

Motor Vehicles, Vessels and Aircraft Act. (18 U.S.C. § 553(c)(3)):

[‘‘V]essel’’ has the meaning given that term in Section 401

of the Tariff Act of 1930 (19 U.S.C. 1401, ante).

r. The Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (CFRCLA) (42 U.S.C § 9601(28)).

s. The

The term ‘‘vessel’’ means every description of watercraft

or other artificial contrivance used, or capable of being

used, as a means of transportation on water.) (Emphasis

supplied.)

Anti-Gambling Act (18 U.S.C. § 1081):

The term ‘‘vessel’’ includes every kind of water and aircraft

or cther contrivance used or capable of being used as a

means of transportation on water, or on water and in the

27a

Appendix A

air, as well as any ship, boat, barge, or other watercraft

Or any structure capable of floating on the water.

(Emphasis supplied.)

t. The Federal Ship Mortgage Insurance Act (46 U.S.C. § 1271(b)):

The term ‘‘vessel’’ includes all types, whether in existence

or under construction, of passenger cargo and combination

passenger cargo carrying vessels, tankers, tugs, towboats,

barges, dredges and ocean thermal energy conversion

facilities or plant ships which are or will be documented

under the laws of the United States, .. . (Emphasis

supplied.)

u. The Contraband Seizure Act (49 U.S.C. § 787(a)):

The term ‘‘vessel’’ includes every description of watercraft

or other contrivance used, or capable of being used, as

a means of transportation in water, but does not include

aircraft. (Emphasis supplied.)

v. The Antifouling Paint Control Act of 1988 (33 U.S.C.

§ 2401(11)):

The term “‘vessel’’ includes every description of watercraft

or other artificial contrivance used, or capable of being

used, as a means of transportation on water. (Emphasis

supplied.)

w. The Interstate Commerce Act (49 U.S.C. § 10102(28)):

The term vessel means a watercraft or other artificial

contrivance that is used, is capable of being used, or is

28a

Appendix A

intended to be used, as a means of transportation by water.

(Emphasis supplied.)

x. The Submarine Cable Act (47 U.S.C. § 30):

{T]he term vessel shall be taken to mean every description

of vessel used in navigation, in whatever way it is propelled

29a

APPENDIX B — JUDGMENT OF UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

ENTERED MARCH 4, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 90-1957

ROCCO P. DIGIOVANNI, JR.,

Appellee,

TRAYLOR BROTHERS, INC.,

Appellant.

JUDGMENT

Entered March 4, 1992

This cause came on to be heard on appeal from the United

States District Court for the District of Rhode Island and was

argued by counsel.

Upon consideration whereof, It is now here ordered, adjudged

and decreed as follows: The judgment of the district court is

reversed and the cause is remanded for further proceedings

consistent with the opinion en banc filed this date.

By the Court:

FRANCIS P. SCIGLIANO, Clerk

30a

Appendix B

By: DANIEL A. LOUGHRY

Chief Deputy Clerk

(cc. Messrs. Rothschild, Kaplan)

’

3la

APPENDIX C — OPINION OF UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT DATED APRIL 17, 1991

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 90-1957

ROCCO P. DIGIOVANNI, JR.,

Plaintiff, Appellee,

TRAYLOR BROTHERS, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

(Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

Andrew Rothschild, with whom John D. Husmann and

Lewis, Rice & Fingersh, were on brief for appellant.

David B. Kaplan, with whom Thomas M. Bond, The Kaplan

Group, P.C., Paul V. Gallogly and Lovett, Schefrin, Gallogly

& Harnett, Lid., were on brief for appellee.

TORRUELLA, Circuit Judge. This case arose as a result of

personal injuries sustained by Rocco P. DiGiovanni, Jr., while

employed by Traylor Brothers (‘‘Traylor Bros.’’) as a pile driver

on the Jamestown, Rhode Island, bridge project. Three counts

went to the jury: (1) negligence under the Jones Act, 46 U.S.C.

32a

Appendix C

§ 688; (2) unseaworthiness under general maritime law; and (3)

negligence under 33 U.S.C. § 905(b). The jury found in favor

of DiGiovanni on the first two counts, thereby finding it

unnecessary to reach the third. After judgment was entered,

Traylor Bros. moved for a new trial, or in the alternative, moved

to alter or amend the judgment and for judgment notwithstanding

the verdict. All motions were denied. Traylor Bros. appealed. On

appeal, Traylor Bros. advances two theories why judgment for

DiGiovanni was improper. First, Traylor Bros. maintains that

the barge to which DiGiovanni was assigned does not qualify as

a ‘‘vessel’’ for purposes of the Jones Act or general maritime

law. Second, Traylor Bros. contends that DiGiovanni does not

fit within the definition of ‘‘seaman’’ under the Jones Act. We

disagree.

VESSEL STATUS

‘*Recovery under the Jones Act or under the general maritime

law for unseaworthiness requires affiliation with a ‘‘ ‘vessel’.’’

Powers v. Bethlehem Steel Corp., 477 F.2d 643, 646 (lst Cir.),

cert. denied, 414 U.S. 856 (1973). We phrase our analysis in terms

of the Jones Act; however, a finding of vessel status under the

Jones Act applies equally to general maritime law. Jd. at 646-48.

‘*The existence of a vessel is a ‘fundamental prerequisite to Jones

Act jurisdiction.’ ’’ Gremillion v. Gulf Coast Catering Co., 904

F.2d 290, 292 (Sth Cir. 1990) (quoting Daniel v. Ergon, Inc., 892

F.2d 403, 407 (Sth Cir. 1990) (quoting Bernard v. Binnings

Construction Co., 741 F.2d 824, 828 (Sth Cir. 1984)). What

constitutes a vessel is ordinarily a jury question. In rare cases,

however, when what emerges from the facts and inferences taken

in the light most favorable to the plaintiff does not conform with

the legal standard of what may properly be classified as a vessel,

the district court should not allow the question to go to the jury.

33a

Appendix C

Powers, 477 F.2d at 646. Traylor Bros. maintains that

DiGiovanni’s claim should have been treated as one of those rare

cases. Because this raises a question of law, we exercise plenary

review. Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076,

1083 (Ist Cir. 1989).

The First Circuit has not confronted this issue since the early

1970s. See Bennett v. Perini Corp., 510 F.2d 114 (1st Cir. 1975);

Powers, 477 F.2d 643. At that time, we articulated the following

standard: ‘‘To be a vessel, the purpose and business must to some

reasonable degree be the ‘transportation of Passengers, cargo, or

equipment from place to place across navigable waters.’ ’’ Bennett,

510 F.2d at 116 (quoting Powers, 477 F.2d at 647) (emphasis

added). Traylor Bros. requests that we modify our standard in

accordance with more recent developments in the Fifth Circuit.

The Fifth Circuit has adopted a narrower standard which compares

a craft’s transportation function with its other functions; if its

‘‘transportation function remains subordinate to its contrasting

function{[s],’’ then the craft may not be classified as a vessel.

Gremillion, 904 F.2d at 294 n.9 (emphasis added). Despite Traylor

Bros.’ urging, we are constrained by First Circuit precedent. See

Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 44 n.5 (lst Cir.

1988) (stating that stare decisis requires panels in this circuit to

follow circuit precedent); Eubank Heights Apartments, Ltd. vy.

Lebow, 669 F.2d 20, 23 n.2 (Ist Cir. 1982) (same).

We now apply the legal standard to the facts of this case.

Because this was the domain of the jury, ‘“‘we are compelled even

in a close case [such as this], ‘to uphold the verdict unless the

facts and inferences, when viewed in a light most favorable to

the [plaintiff], point so strongly and overwhelmingly in favor of

the [defendant] that a reasonable jury could not have arrived at

this conclusion.’ ’’ Transnat’! Corp. v. Rodio & Ursillo, Lid.,

—_———_—caiz

34a

Appendix C

920 F.2c 1066, 1068 (Ist Cir. 1990) (quoting Chedd-Angier

Production Co. v. Omni Publications Int’l, Ltd., 756 F.2d 930,

934 (Ist Cir. 1985)).

The craft involved in this case were a ‘‘spud’’ barge named

the “BETTY F’’ and an adjoining supply barge. Although

DiGiovanni mainly worked as a pile driver on board the BETTY

F, his injury was sustained while handling tag lines aboard the

supply barge. That fact, however, presents no bar to recovery.

Balfer v. Mayronne Mud & Chemical Co., Inc., 762 F.2d 432,

434 (Sth Cir. 1985) (a vessel may be ‘‘either one particular vessel

or an ‘identifiable- group of vessels’ ’’ (quoting Guidry v.

Continental Oil Co., 640 F.2d 523, 529 (Sth Cir. 1981)).

The BETTY F’s main purpose was to serve as a floating

platform for a large crawler crane used in pile driving. Located

on the BETTY F along with the crane were a tool shed, a trailer

box converted into a small cafeteria with a stove, and a

refrigerator. The BETTY F also came equipped with navigation

lights. The BETTY F could not move great distances on its own,

but it could reposition itself around the jobsite by raising and

lowering its four spud anchors. Approximately once each month

the BETTY F was moved across navigable waters, aided by a

tow or push boat, in order to transport the crane to a new jobsite.

The supply barge upon which DiGiovanni was injured housed

supplies and equipment including steel piling beams, a pile driver

hammer, and a power pack. The barge was used to transport these

supplies from shore to the jobsite, although not under its own

motive power. Neither the supply barge nor the BETTY F provided

housing for crew members. The daily work crew had to be

transported to and from the jobsite on a crew boat.

35a

Appendix C

The BETTY F and its supply barge strongly resemble the

craft under question in Bennett. Bennett involved a steel-hulled

barge named the ‘‘“SCOW 101”’ which was also without motive

power of its own. Like the BETTY F, the SCOW 101 had to

be towed from jobsite to jobsite. The SCOW 101 was used to

carry structural materials, tools, and a crane. At the time of

plaintiff’s injury, the SCOW 101 was tied alongside a pier of the

Newport-Jamestown Bridge in Narragansett Bay. Bennett, 510

F.2d at 115-16. On appeal, this court determined that the SCOW

101 was more than a ‘floating dock[] or dry-dock{], traditionally

regarded as [an] extension{] of land.’’ fd. at 116. We conferred

upon the SCOW 101 the status of vessel.

While we recognize that the transportation function of the

BETTY F and iis supply barge, like the SCOW 101 in Bennett,

was not overwhelming, both barges nevertheless transported

equipment across navigable waters sufficiently often for that

function to have been considered by a jury as being ‘“‘to some

reasonable degree’’ the function of the craft. We will not,

therefore, overturn the determination below.

SEAMAN STATUS

Having determined that a vessel was involved, we now

consider whether DiGiovanni was properly labelled a ‘‘seaman’’

for purposes of the Jones Act.' See Gremillion, 904 F.2d at 292

(holding that the existence of a vessel is a prerequisite to seaman

Status). We again find ourselves faced with a legal challenge.

1. The Jones Act provides: ‘‘Any seaman who shall suffer personal injury

in the course of his employment may . . . maintain an action for damages at

law.’’ 46 U.S.C. § 688 (1920).

36a

Appendix C

Traylor Bros. questions the appropriateness of the legal standard

relied upon by the district court in attributing seaman status to

DiGiovanni. We therefore begin our analysis under plenary review.

Fashion House, 892 F.2d at 1083.

At the time Traylor Bros. filed this appeal, circuits were split

as to the proper standard for determining seaman status. The

leading circuits reflecting that split were the Fifth, Offshore Co.

v. Robison, 266 F.2d 769 (Sth Cir. 1959), and the Seventh, Johnson

v. John F. Beasley Construction Co., 742 F.2d 1054 (7th Cir.

1984), cert. denied, 469 U.S. 1211 (1985). The Fifth Circuit adopted

the following two-part test: If an employee (1) was assigned

permanently to a vessel or performed a substantial amount of

work on a vessel and (2) worked in a capacity or manner which

‘‘contributed to the function of the vessel or to the accomplishment

of its mission, or the operation or welfare of the vessel in terms

of its maintenance during its movement or during anchorage for

its future trips,’’ then the employee qualified for seaman status.

Robison, 266 F.2d at 779; see also Barrett v. Chevron, U.S.A.

Inc., E.E.B. Co., 781 F.2d 1067, 1072 (5th Cir. 1986). The Seventh

Circuit favored a more stringent standard which required the

employee’s duties to be related to the transportation function of

the vessel. Johnson, 742 F.2d at 1061. This circuit followed

Robison. Bennett, 510 F.2d at 116-17.

Since Traylor Bros.’ appeal, the Supreme Court has settled

this dispute. See McDermott Int’l, Inc. v. Wilander, 1991 WL

177734 (U.S.). The Seventh Circuit standard was clearly rejected.

Id. at 10 (‘‘We think the time has come to jettison the aid in

navigation language’’). The proper inquiry, as articulated by the

Court, is whether the employee is connected with a vessel and

is performing the work of the vessel. /d. at 10-11. ‘‘It is not

necessary that [the] seaman aid in navigation or contribute to

37a

Appendix C

the transportation of the vessel;’’ the employee simply must be

‘doing the ship’s work.’’ /d. at 11.

The issue now becomes ‘‘whether the facts meet the Statutory

standard.’’ /d. It is the province of the jury to find the facts and

apply the legal standard. /d. at 12. The jury determination will

be upheld if, based on the facts taken in the light most hospitable

to the party for whom the jury held, together with all reasonable

inferences therefrom, a rational jury could have reached that

conclusion. Rodio & Ursillo, 920 F.2d at 1068.

Applying a standard substantially similar to the one adopted

in Wilander,’ the jury in this case determined that DiGiovanni

qualified for seaman status. We see no reason to overturn that

finding on appeal. The main function of the BETTY F was to

act as a platform for a crawler crane used in pile driving.

DiGiovanni was assigned to the BETTY F as a pile driver and

was injured while steadying tag lines connected to the pile driver

hammer. Clearly DiGiovanni was doing the work of the vessel.

CONCLUSION

We uphold the district court’s determination regarding both

vessel status and seaman status.. The jury’s finding of negligence

under the Jones Act and unseaworthiness under generai maritime

law is therefore affirmed.

2. The district judge instructed the jury that DiGiovanni qualified for

seaman status if he met the following two requirements: (1) ‘the [was] assigned

permanently to a vessel or he performed a substantial part of his work on a

vessel,’’ and (2) ‘‘the capacity in which he was employed or the duties which

he performed [{] contributed to the functions of the vessel or the accomplishment

Of its mission or its operation or welfare during its movement or during

anchorage.”’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.