Petition for Writ of Certiorari — Cabral v. Healy Tibbits Builders, Inc.
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1 \ PILED
971346 Fep 12 1998
No. ___Ofsigg gg THE CLERK
In The
Supreme Court of the United States
October Term, 1997
+
ROBERT CABRAL,
Petitioner,
HEALY TIBBITTS BUILDERS, INC.,
Respondent.
+
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
s
PETITION FOR WRIT OF CERTIORARI
*
MICHAEL F. STURLEY
Counsel of Record
727 Fast Dean Keeton Street
Austin, Texas 78705
(512) 471-6318
Davip W. Rosertson
P.O. Box 699
6015 McGregor Lane
Dripping Springs, Texas 78620
(512) 858-4158
JOHN R. HILLsSMAN
McGuInn, HILLSMAN & PALPFSKY
535 Pacific Avenue
San Francisco, California 94133
(415) 421-9292
Attorneys for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
To qualify for coverage under the Jones Act, 46 U.S.C.
App. § 688(a), “a seaman must have a connection to a
vessel ... that is substantial in terms of both its duration
and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368
(1995). Must an injured employee work on the high seas
(as opposed to the navigable waters of an ocean harbor)
to satisfy this requirement?
LIST OF PARTIES
All parties to the proceeding in the court of appeals
appear in the caption of the case. Ten “John Doe” defen-
dants were named in the complaint but were not parties
to the proceeding in the court of appeals.
iil
TABLE OF CONTENTS
Page
SPUR MGIE Of PRICIER SERS ve Sa eck eens addcecue vevcen i
SEE Se TRUE TRPEE RED v0 6 rcv cee sek sd ne beens te Vv
Se ee 6 Gk doy k web Ae Rea Re wees owe we es 1
RN se on eS NaS CaP REDN SE EALEDD Chi eee 2
ee Re aE AED os 5 55 Sie btn 60k ee WOR ee ee iS 2
URN 6 ba) yl sk tka nee des kee eo eka Rees 2
REASONS FOR GRANTING THE PETITION ....... 5
THE NINTH CIRCUIT’S DECISION CONFLICTS
WITH PRIOR DECISIONS OF THIS COURT, WITH
COURT OF APPEALS’ DECISIONS IN OTHER
CIRCUITS, AND WITH DECISIONS OF STATE
wk Uae Vk coed awe @ oe NE Re wes 6
supreme Court Precedent. ..... 06.02... cceence 6
eee A OOEES SP CINIONNE, fh inca cewecewvacnewas 11
Ue ONE BICONE fos nck seb e saccade sews’ 13
THE NINTH CIRCUIT’S DECISION WILL HAVE A
SERIOUS IMPACT ON THE OVERWHELMING
MAJORITY OF U.S. SEAMEN, ON THEIR
EMPLOYERS, AND ON THE DEPARTMENT OF
8 BAS SEE EN ee Pe ere Te ra ern 18
Bee SCE CNT TS, GORMON on oie eee cet 18
2ne teipact OA Employers .... 2.22.0. cee cees 20
The Impact on the Department of Labor....... 22
I aoa eb dvicesat haces bse yn ne tv eWaws 23
pe gE a aR a agree Seamer rarer la
RISERS aE SRE IC oe rip aoa to Perr nan 12a
TABLE OF CONTENTS —- Continued
oie ig os Et 0 Bane hata gare s ate wate oF cit, -aeirerre RUUD EAE. 31a
TABLE OF AUTHORITIES
Page
Cases:
Allen v. Mobile Interstate Piledrivers, 475 So. 2d 530
CPAs SE 6 ECE ob R EE Ne oo ERR RE he ke a eee 14
American Barge Line Co. v. Leatherman’s Adm'x, 306
Gs BOR) BOP DEVORE Sad LA ic ecavucceicaeihane 14
Arundel Corp. v. Jasper, 219 Md. 519, 150 A.2d 415
PEPE V's «oak ans oa ERNE PRR AEE EE bere 14
B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693 (Tex
) 1928S ics Re ea i4
Bennett v. Perini Corp., 510 F.2d 114 (CA1 1975) ..... 11
The Bouker No. 2, 241 F. 831 (CA2), cert. denied, 245
ALS GA TIOCA ose ook at ee 12
| Braen v. Pfeifer Transportation Co., 361 U.S. 129
: CERN KG Whsis can boa Reece Cea er es eee bea bom gictarets 8
| Brannan v. Great Lakes Dredge & Dock Co., 253
DEN, a Fk INAV 20 BGG SIGs nk nv'kce 4 ei bee 14
Brown v. ITT Rayonier, Inc., 497 F.2d 234 (CA5
||, AGE a eg DRA A ae AMEE EMI CM Gr ec ets Ne A ear aaB | SS AN 10
Brown v. L. A. Wells Constr. Co., 143 Ohio St. 580,
ee SG Gk TEM: SPs ca cee ee ia we 15
Butler v. Whiteman, 356 U.S. 271 (1958) (per cur-
Rae SM aniaE @ gue ecm Miele elo Oe Ale SMEAR Ee kay MT 9, 10
| Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) ...... passim
Coleman v. Robicheaux Airboats, Inc., 662 So.2d 452
CLM: SO e ee CORI 8 ie Se eon evened 13, 17
saint
vi
TABLE OF AUTHORITIES —- Continued
Ducote v. V. Keeler & Co., 953 F.2d 1000 (CA5 1992)....
Gaussoin v. Port of Portland, 144 Or. App. 247, 927
Fate GOS CRPPOP eins ts axl vase nsandiaev enema
Gross v. Washington State Ferries, 59 Wash.2d 241,
Dy Tian Geek CREE 6 bcd eee wees
Harbor Tug & Barge Co. v. Papai, 117 S. Ct. 1535
BOY 5 oiivnscc caver ect eee ee
Hill v. Workmen's Compensation Appeal Board, 703
AZe: 74 Ta. Comes. GX: 2G hss ck exe eeerks
Indiana & Michigan Electric Co. v. Workers’ Compen-
sation Commissioner, 184 W. Va. 673, 403 S.E.2d
GEG COU: Vas TORT so ox 6 bc cGsiae se tan courvaneel
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Ce. THAD US. Se CFG ass ssc tee
Johnson v. John F. Beasley Const. Co., 742 F.2d 1054
(CA7 1984), cert. denied, 469 U.S. 1211 (1985)..
Kelley v. Sun Transportation Co., 900 F.2d 1027 (CA7
SOIR ook cv ccuabi tenn cdas eee
Kinney v. General Construction Co., 248 Or. 500, 435
ee Bor CEOS in avcs cianed hee eas eee ere
Lackey v. Atlantic Richfield Co., 990 F.2d 202 (CA5
WORN 88 oi eae
McDermott International, Inc. v. Wilander, 498 U.S.
ae CORW ED wiv'n.'d ohn vie ead te eee 11,
Page
11
eae 7
ere |
12, 19
Vii
TABLE OF AUTHORITIES — Continued
Page
Maddox v. Omni Drilling Corp., 698 So.2d 1022 (La.
I. SPST Ba hn SUkes Chee eae Oka a hee Oks eo dk ee 18
Markle v. Cement Transit Co., __ N.E.2d ___, 1997
Ohio App. LEXIS 4252, 1997 WL 578940 (Ohio
App. Sept. 16, 1997) (No. . 7017S) .. ievccececiecss 18
Moyer v. Johnson Brothers Corp., 1997 U.S. Dist.
LEXIS 14683, 1997 WL 582820 (E.D. La., Sept.
Reh: ROPE. CUW. CVs My MOOD b chs pace eases e reese 13
Norton v. Warner Co., 321 U.S. 565 (1944).......... 9, 10
O'Donnell v. Great Lakes Dredge & Dock Co., 318
dds EEE Cer N Si ova diss db kee eens cho aadabe 8, 10
Pedersen v. Manitowoc Co., 25 N.Y.2d 412, 255
N.E.2d 146, 306 N.Y.S.2d 903 (1969)............... 14
Petersen v. Chesapeake & Ohio Ry., 784 F.2d 732
DE ME CR LaL Che Sh 34 LG Ste 6 wee to ak os 60 ea oe oe 11
Pryal v. Mardesich, 51 Wash.2d 663, 321 P.2d 269
CPE Nas Cee ak eel bs Leesa) vestacctaahencnees 17
Rankin v. Iron City Sand & Gravel Corp., 356 Pa.
PO ee, IRE EE CR Bab. Sonia a Coa 4b WRK Ow dee 6x ke 15
Reeves v. Mobile Dredging & Pumping Co., 26 F.3d
Se Ct ED chs b 58 bis bad enc rke hee Chek ase ue a 8
Russell v. Pere Marquette Ry. Co., 245 Mich. 624, 223
N.W. 230 (1929), cert. denied, 279 U.S. 864 (1929) .... 14
Sanguinetti v. Moore Dry Dock Co., 36 Cal.2d 812,
PE Re CE RUGS SaK aha 6a bass 5 cewek rs had e 0508 16
Saylor v. Taylor, 77 F. 476 (CA4 1896)............. 12, 13
Vili
TABLE OF AUTHORITIES ~- Continued
Page
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946)....... 5
Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540
(CA11 1987), cert. denied, 486 U.S. 1033 (1988)..... 12
Senko v. LaCrosse Dredging Corp., 352 U.S. 370
{Cot 3, I ra year a beer rete Unser ine 9, 10, 11
Slatton v. Martin K. Eby Const. Co., 506 F.2d 505
(CA8 1974), cert. denied, 421 U.S. 931 (1975)....... 12
Soucie v. Trautwein Brothers, 275 Cal. App.2d 20, 79
ee A et Dey pyre teres Wier Pen res 16
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)
Va Sales a aed oe EEN ee ae as Cheah 9, 10, 11, 19, 20
Summerlin v. Massman Const. Co., 199 F.2d 715
iW: SE he We SSNS REG y wie cane be AOR TE ke wk G 11
Swanson v. Marra Brothers, Inc., 328 U.S. 1 (1946). .8, 19
Toland v. Atlantic Gahagan Joint Venture Dredge, 57
Pech: ees: GES. See CREPE baie 6 hen ca pr dee bahia 14
Tonnesen v. Yonkers Contracting Co., 82 F.3d 30
tae AFORE on Ve bs pV aww a keeeetardaees wanes ki 11, 13
Tyndall v. Conduit & Foundation Corp., 269 F.2d 947
Sue RPOP a cacnkhéaveWhteks #s0¥ek bbecinedhare dia 11
Veberes v. Knappton Corp., 92 Or. App. 378, 759 P.2d
279 (1988), 307 Or. 78, 763 P.2d 732 (1988)........ 17
Wall v. Progressive Barge Line, __. S0.2d ___, 1997
La. App. LEXIS 2670, 1997 WL 680790 (La. App.,
eb. 25, ET CN SIIB ines ocewcdocsvucs 17
Warner v. Goltra, 293 U.S. 155 (1934) .............. 9, 10
ix
TABLE OF AUTHORITIES - Continued
Page
Watson v. Puget Sound Tug & Barge Co., 96 Or. App.
79, 771 P.2d 307 (1989), rev. denied, 308 Or. 315,
PPE Se Re CAE cok oe eke Cae b baer le FON wes 17
Weeks Marine v. Gillikin, 247 Va. 89, 439 S.E.2d 341
CUE one ck iv wh eee aka coke kitten! & sou uitaeule wee: 14
STATUTES AND FEDERAL REGULATIONS:
Se Saas Ee POET Shs Coke ha dale saber vede teen ba vekbee 2
UE Ug: UR ED Chie eign Hes aa a didi eins d wy aly’ f 2, 0
eRe ak ROUT 6din co ocd Gwar ehaek bia bea eke ed es 15
Longshore and Harbor Workers’ Compensation
Pat ALATA), Oo. OOK, Be Fea SG ion viv cise eae vas 19
De has Me he sb esa ee ave ck aia pee eri nestor: 21
Ae ae Ds Ce bh na bd ania ke akea ne AS eebad ws 21
rg Et RR MEE rey roan aR Pie «a eer rma aR RP De ay 22
Jones Act, 46 U.S.C. App. § 688(a)................ i 40
Be Me Es TITRE: 6 pa n558 in ARK SUN CEOS Eee ees 22
Bee Sa AP ID 6 hae oho 5 hb a dk dea he eee 21
OtTHER AUTHORITIES:
BUREAU OF THE CENSUS, Dep’t OF COMMERCE, COUNTY
Business Patrerns 1995: ALasKA (1997) ............. 16
BUREAU OF THE Census, Dep’t oF COMMERCE, COUNTY
Business PatreRNS 1995: CatirorNiA (1997) .......... 16
TABLE OF AUTHORITIES - Continued
BUREAU OF THE CENSUS, Dep’T OF COMMERCE, COUNTY
Business Patterns 1995: Hawan (1997)...........
BUREAU OF THE CeENsuUs, Dep’T OF COMMERCE, COUNTY
Business PATTERNS 1995: OREGON (1997) ..........
BUREAU OF THE CENsUs, Dep’T OF COMMERCE, COUNTY
Business PATTERNS 1995: WASHINGTON (1997)......
BUREAU OF THE CeNsus, Dep’T OF COMMERCE, STATISTI-
CAL ABSTRACT OF THE UNitTED States 1997 (117th
Ge Se ek ks ha kas Sib eek An ee ee
BureAu OF Lasor Statistics, Dep’t or LABOR, OccuPA-
TIONAL OuTLOOK HANDBOOK, 1996-97 EpiTIoN (Bul-
ge me, re ye aan re pre
G. Gi_more & C. BLack, THE LAw or ApmiRALTY (2d
ae WR ae ike a
W. Lovett (ed.), UNitep States SHIPPING POLICIES AND
TORS TRON DORR TIS ak on kook web boc bad eaaes
MariTIME ADMINISTRATION, Dep’t OF TRANSPORTATION,
ANNUAL Report 1995, table 19 (1996) ...........
— paar:
5
PETITION FOR WRIT OF CERTIORARI
Petitioner Robert Cabral respectfully petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit in this case.
+
OPINIONS BELOW
The opinion of the court of appeals, as amended,
reprinted as Appendix A (“App. A”), infra, at page 1a, is
officially reported at 128 F.3d 1289 (CA9 1997). The order
amending the original opinion (but not the amended
opinion) is also reported at 1998 AMC 275.
The unamended opinion of the court of appeals,
reprinted as Appendix B (“App. B”), infra, at page 12a, is
officially reported at 118 F.3d 1363 (CA9 1997). It is also
reported at 1997 AMC 2419.
The district court’s Order Denying Plaintiff’s Motion
for Summary Judgment and Granting Defendant’s Cross
Motion for Summary Judgment, reprinted as Appendix C
(“App. C”), infra, at page 21a, is reported at 1995 AMC
2099 (D. Haw. 1995). It has not been officially reported.
The district court’s Order Denying Plaintiff’s Motion
for Reconsideration of Order Dated June 19, 1995 Deny-
ing Plaintiff's Motion for Summary Judgment and Grant-
ing Defendant’s Cross Motion for Summary Judgment,
reprinted as Appendix D (“App. D”), infra, at page 31a, is
unreported.
JURISDICTION
Petitioner seeks review of the judgment of the Court '
of Appeals for the Ninth Circuit, which was dated and
entered on October 15, 1997. On January 6, 1998, Justice
O’Connor extended the time for filing a petition for cer-
tiorari to and including February 12, 1998. This petition
was filed on that date. This Court’s jurisdiction is
invoked under 28 U.S.C. § 1254(1). The district court had |
jurisdiction under 28 U.S.C. § 1333(1) and 46 U.S.C. App.
§ 688(a). :
STATUTE INVOLVED
The Jones Act, 46 U.S.C. App. § 688(a), provides, in
relevant part, as follows:
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 modify-
ing or extending the common-law right or rem-
edy in cases of personal injury to railway
employees shall apply... .
AIRED NE BITCM OP
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STATEMENT
The Jones Act, 46 U.S.C. App. § 688(a), gives a “sea-
man” a negligence action against his employer, but does
not explicitly define the key term “seaman.” This case
addresses whether that term is limited to “blue-water
seamen,” who are employed on traditional ocean-going
i
vessels, or whether it also includes “brown-water sea-
””
men,” who work on other vessels, such as those plying
lakes, rivers, canals, and harbors.
Respondent Healy Tibbitts Builders, Inc.,! hired peti-
tioner Robert Cabral on August 15, 1994, see R. 12, 72-74,?
to operate the crane on Barge 538, a “crane barge,” on a
construction project in Pearl Harbor, Hawaii.* Petitioner’s
work involved removing and replacing the Ford Island
Ferry “mooring dolphins,” which are timber piles driven
into the bottom of the harbor to cushion the ferry during
landing. See R. 76. While so employed, petitioner spent
more than ninety percent of his work time aboard Barge -
538. See R. 75 (testimony of Richard A. Heltzel, respon-
dent’s vice-president).
On September 26, 1994, petitioner was injured on
Barge 538 in the course of his employment. See R. 1, 3-6.
He sued respondent under the Jones Act. Claiming to be
a “seaman” as a matter of law, he sought summary judg-
ment on the issue, and respondent cross-moved for sum-
mary judgment. As most of the requisites for seaman
status were clearly established, the litigation below
focused on only two issues: whether Barge 538 was a
1 Respondent’s name is misspelled, as “Healy Tibbits
Builders, Inc.,” in the captions of the opinions below.
2 Citations to Plaintiff-Appellant Robert A. Cabral’s
Excerpts of Record in the Ninth Circuit are cited with “R.” and
the page number.
3 Respondent had previously employed petitioner for 10'/2
months ending May 31, 1994. See R. 11, 73. During the 2'/2
months between June 1, 1994, and August 14, 1994, petitioner
had either worked for another employer or been unemployed.
See R. 11, 62-63.
“vessel” and whether petitioner had a sufficient connec-
tion with it.
The district court, after a full discussion of the gov-
erning precedent, see App. C, infra, at 25a-28a,
“assum[ed] without deciding” that Barge 538 was a “ves-
sel,” id. at 28a. But the court granted respondent's cross-
motion for summary judgment, resting its conclusion that !
petitioner did not have the required connection with the
vessel on twe. factors. First, the court looked to peti-
tioner’s “ove** 1 employment as a crane operator,”4
rather than “the brief period” of his current employment
with respondent, id. at 28a, and concluded that “[m]uch,
if not most, of his work [other than his current employ-
ment] was done on land,” id. at 28a-29a. On that view,
petitioner’s “connection with Barge 538 was at best tran-
sitory.” Id. at 29a. Second, the court believed that “his
work . . . in a sheltered harbor is hardly the sort of
employment that would regularly expose him to the
‘perils of the sea.’ ” Id. at 29a.
The Ninth Circuit affirmed. Without reaching the
“vessel” question, see App. B, infra, at 20a n.1; cf. App. A,
infra, at 1la n.2, the court of appeals agreed that peti-
tioner did not have the requisite connection with Barge
538. In reaching its conclusion, the court relied on lan-
guage from two of this Court’s recent opinions, Harbor
Tug & Barge Co. v. Papai, 117 S. Ct. 1535 (1997), and
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), that discuss
whether an employee goes “to sea.” See App. B, infra, at
4 In particular, the court considered petitioner’s 10?/2-
month period of employment ending May 31, 1994. See supra
note 3.
18a-19a; cf. App. A, infra, at 9a-10a. In particular, the
Papai Court had declared that “the inquiry into the nature
of the employee’s connection to the vessel must concen-
trate on whether the employee’s duties take him to sea.”
117 S. Ct. at 1540. See also Latsis, supra, 515 U.S. at 370
(“The Jones Act remedy is reserved for sea-based mar-
itime employees whose work regularly exposes them to
‘the special hazards and disadvantages to which they
who go down to sea in ships are subjected.’ ”) (quoting
Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone,
C.J., dissenting)). The Ninth Circuit read this language to
refer to the high seas or the open sea, as opposed to the
ocean harbor on whose waters petitioner worked. The
Ninth Circuit accordingly denied petitioner’s seaman sta-
tus as a matter of law because he “present[ed] no evi-
dence showing that he was ever aboard Barge 538 when it
was anywhere but the Ford Island Ferry project.” App. B,
infra, at 19a; cf. App. A, infra, at 10a.
On petition for rehearing, the Ninth Circuit amended
its opinion slightly to correct an obvious error, see App.
A, infra, at 2a-3a, but otherwise adhered to its original
views.
REASONS FOR GRANTING THE PETITION
The court of appeals erred on a recurring and signifi-
cant issue of law on which the federal courts of appeals
and state courts are divided. Contrary to the Ninth Cir-
cuit’s holding, a worker need not work on the high seas
to qualify as a seaman under the Jones Act. This Court
has held on numerous occasions that crew members of
vessels plying inland navigable waters are entitled to
seaman status under the Jones Act. Both before and after
this Court’s recent decisions in Latsis and Papai, the
courts of appeals and state courts of last resort have
routinely recognized that a worker’s status as a seaman is
not adversely affected simply because his vessel is not
deployed on the high seas. The Ninth Circuit’s contrary
holding creates a different rule for the West Coast of the
United States on a matter of significance for tens of
thousands of brown-water seamen and for their
employers, who must procure different insurance
depending on the locations of their work force. Accord-
ingly, plenary review is warranted.
THE NINTH CIRCUIT’S DECISION CONFLICTS
WITH PRIOR DECISIONS OF THIS COURT, WITH
COURT OF APPEALS’ DECISIONS IN OTHER CIR-
CUITS, AND WITH DECISIONS OF STATE COURTS
Supreme Court Precedent
This case turns on the requirement announced in
Latsis, supra,> that “a seaman must have a connection to a
vessel in navigation . . . that is substantial in terms of
both its duration and its nature.”® 515 U.S. at 368. During
5 In Latsis, this Court declared “that the essential
requirements for seaman status are twofold.” 515 U.S. at 368.
The first requirement — that the employee’s duties contributed
to the function of the vessel or the accomplishment of its
mission — is not at issue here. Respondent did not dispute that
petitioner’s duties operating the crane contributed to the
function of the crane barge. See App. A, infra, at 7a.
6 Whether Barge 538 was a vessel is not currently before the
Court, because the Ninth Circuit did not reach the question. In
the relevant period of employment,’ petitioner spent
more than ninety percent of his work time aboard Barge
538 performing duties essential to the vessel’s mission. In
view of the thirty percent “rule of thumb” that this Court
approved in Latsis, id. at 371, there is no legitimate basis
for doubting that petitioner’s connection with the vessel
was substantial in duration. The court below evidently
believed that “substantial in... nature” means work on
the high seas. There is no precedent for that notion.
any event, the district court was fully justified in attributing
vessel status to Barge 538, which was functionally
indistinguishable from the barge that this Court found to be a
vessel in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527 (1995).
? At the time the district court reached its decision, it may
have been unclear what period of employment should be
considered to determine the nature of petitioner’s connection to
Barge 538. See supra note 3. This may explain why that court
considered his “overall employment as a crane operator.” App.
C, infra, at 28a; see supra note 4 and accompanying text. After
Latsis and Papai, however, it is clear that the court should have
looked to the period of employment beginning August 15, 1994.
See, e.g., Papai, supra, 117 S. Ct. at 1542 (describing the
employee’s prior work for the vessel owner during the 2!/2
months before his injury as “discreet engagements [that] were
separate from the one in question”). As this Court explained in
Latsis, “[iJf a maritime employee receives a new work
assignment in which his essential duties are changed, he is
entitled to have the assessment of the substantiality of his
vessel-related work made on the basis of his activities in his new
position.” 515 U.S. at 372. Petitioner’s assignment changed
dramatically on August 15; indeed, because he had left
respondent’s employment entirely for 2'/2 months, he had to be
rehired.
In elaborating on the seaman status test, this Court
has made clear that an injured worker must be a “mem-
ber[] of the crew of a vessel plying in navigable waters.”
Swanson v. Marra Brothers, Inc., 328 U.S. 1, 7 (1946); see also
O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36,
42-43 (1943) (noting the requirement of a “vessel plying
in navigable waters”). Lower courts have continued to
recognize and apply this requirement. See, e.g., Reeves v.
Mobile Dredging & Pumping Co., 26 F.3d 1247 (CA3 1994).
It is the only requirement relating to location. Petitioner
easily satisfies it, because Barge 538 was operating in the
navigable waters of Pearl Harbor.
The Ninth Circuit’s imposition of a far more restric-
tive location test was not only unwarranted, it was flatly
inconsistent with a number of this Court’s decisions. The
O'Donnell Court paid the greatest attention to issues of
location. In that case, a deckhand was injured on land
while in the service of a vessel transporting sand on Lake
Michigan. The Seventh Circuit had held that no recovery
was available when the injury did not occur on navigable
waters. Reversing, this Court held that the deckhand
could recover under the Jones Act as a matter of law,
notwithstanding that he was injured on land, because he
was a member of the crew of a vessel that operated on
navigable waters (albeit not the open sea). 318 U\S. at
42-43.
In at least® five other cases, this Court has recognized
that seamen who never worked on the high seas were
8 In Braen v. Pfeifer Transportation Co., 361 U.S. 129 (1959),
the Court held that the mate on a barge was entitled to recover
under the Jones Act. At the time of his injury, he was doing
construction work while the barge was moored in an ocean
entitled to Jones Act coverage. Most recently, this Court
upheld the potential availability of a Jones Act remedy
for an injured employee who did all of his work on a
barge in San Diego Harbor or on land. See Southwest
Marine, Inc. v. Gizoni, 502 U.S. 81 (1991).9 This result
follows a long line of cases. In Warner v. Goltra, 293 U.S.
155 (1934), the Court held that the master of a river
tugboat who had been killed on the Ohio River was a
Jones Act seaman. In Norton v. Warner Co., 321 U.S. 565
(1944), a boatman on a barge that “never went to sea but
was confined in its operation to waters within a radius of
thirty miles of Philadelphia,” id. at 567, was found to be a
seaman entitled to recover under the Jones Act. In Senko
v. LaCrosse Dredging Corp., 352 U.S. 370 (1957), this Court
affirmed a jury finding that a Jones Act plaintiff was a
member of the crew of a dredge that was anchored to the
Illinois shore of the Mississippi River “during all the time
petitioner worked for [the vessel owner].” Id. at 372; see
also id. at 376 (Harlan, J., dissenting) (the plaintiff “never
even saw [the dredge] being moved”). And in Butler v.
Whiteman, 356 U.S. 271 (1958) (per curiam), the Court
held that a jury could decide the seaman status of a
crewman on a Mississippi River tug.
The use of phrases such as “perils of the sea,” going
7
“to sea,” and “sea-based employees” in Papai and Latsis
harbor. The published opinions do not reveal whether the barge
(or the injured worker) ever went on the open sea.
° In its original opinion, the court below overlooked Gizoni.
See App. A, infra, at 2a-3a; compare App. A, infra, at 6a & n.1 with
App. B, infra, at 15a.
10
could not have been intended to overrule O'Donnell, Giz-
oni, Warner v. Goltra, Norton v. Warner Co., Senko, and
Butler. In this context, “sea” is simply a convenient short-
hand for “navigable waters.” Indeed, this Court has regu-
larly used “sea” when all navigable waters must have
been intended. See, e.g., Latsis, supra, 515 U.S. at 364
(characterizing the Gizoni worker’s time in San Diego
Harbor as “time at sea”); id. at 373 (contrasting “out of
navigation” with “at sea” in the context of holding that a
six-month period in drydock may be time “in naviga-
tion”). This usage goes back to the early Jones Act cases.
In Warner v. Goltra, supra, for example, the Court men-
tioned a definition of “a seaman” as “one who lives his
‘in the context of the master of a river
tugboat. 293 U.S. at 157. (This language was quoted in
Latsis, supra, 515 U.S. at 355.) In contrast, when the Papai
or Latsis Court meant to limit the meaning of the term
“sea” in the manner suggested by the Ninth Circuit, it
used a phrase such as “the high seas,” Papai, supra, 117 S.
Ct. at 1543, or “the open sea,” Latsis, supra, 515 U.S. at
351. Cf. id. at 356 (noting that a “blue-water seaman” is at
one end of a broad spectrum, and recognizing that others
on that spectrum are still entitled to “seaman” status)
(quoting Brown v. ITT Rayonier, Inc., 497 F.2d 234, 236
(CA5 1974)).
life upon the sea’
In summary, petitioner is not seeking a novel expan-
sion of Jones Act coverage. He is simply seeking the
restoration of the traditional understanding of seaman
status that this Court has recognized in opinions stretch-
ing over almost sixty years. At the very least, petitioner’s
status is a fact question that should have been decided at
trial rather than on summary judgment. See, e.g., Latsis,
|
11
supra, 515 U.S. at 369; Gizoni, supra, 502 U.S. at 92; McDer-
mott International, Inc. v. Wilander, 498 U.S. 337, 356 (1991);
Senko, supra, 352 U.S. at 374.
Circuit Court Precedent
The Ninth Circuit’s decision conflicts with decisions
in virtually all of the other circuits, which do not require
an injured employee to work on the high seas to qualify
for seaman status. See, e.g., Bennett v. Perini Corp., 510 F.2d
114, 115-17 (CA1 1975) (seaman status question should
have gone to the jury; the injured employee’s work was
confined to a bridge construction project in Narragansett
Bay); Tonnesen v. Yonkers Contracting Co., 82 F.3d 30 (CA2
1996) (reversing summary judgment for the employer; the
injured employee worked on a stationary barge on a
bridge construction project in Jamaica Bay); Tyndall v.
Conduit & Foundation Corp., 269 F.2d 947 (CA3 1959)
(affirming recovery; injured employee worked on the
Delaware River and other “navigable streams” on bridge-
building and dredging projects); Summerlin v. Massman
Const. Co., 199 F.2d 715, 715-16 (CA4 1952) (holding the
plaintiff to be a seaman as a matter of law; work was
confined to a floating derrick on a bridge construction
project on the York River); Ducote v. V. Keeler & Co., 953
F.2d 1000 (CA5 1992) (reversing summary judgment for
the employer; the injured employee worked on a spud
barge on a piledriving project on the Red River); Petersen
v. Chesapeake & Ohio Ry., 784 F.2d 732, 737-38 (CA6 1986)
(affirming recovery; injured employee worked on car fer-
ries sailing on the Great Lakes); Kelley v. Sun Transporta-
tion Co., 900 F.2d 1027 (CA7 1990) (affirming recovery;
injured employee worked on a towboat on the Missouri
12
River); Slatton v. Martin K. Eby Const. Co., 506 F.2d 505
(CA8 1974) (affirming recovery; injured employee worked
on a barge constructing a “dolphin” on the Arkansas
River), cert. denied, 421 U.S. 931 (1975); Self v. Great Lakes
Dredge & Dock Co., 832 F.2d 1540 (CA11 1987) (affirming
recovery; injured employee worked on a dredge and
barge in the St. Johns River), cert. denied, 486 U.S. 1033
(1988).
All of these modern cases take for granted the
absence of a “high seas” requirement, because the issue
was settled over a century ago in a pre-Jones Act case.'°
In Saylor v. Taylor, 77 F. 476 (CA4 1896), the employees on
a “stream dredge,” which was engaged in cleaning and
deepening the channels in two Virginia creeks, claimed
seaman status. The Fourth Circuit specifically considered
whether it should “class the deck hands of a mud dredge
in the quiet waters of a Potomac creek with the bold and
skillful mariners who breast the angry waves of the
Atlantic.” Id. at 479. The court held that “those who are
employed upon a vessel in any capacity, however hum-
ble, and whose labor contributes in any degree, however
slight to the accomplishment of the main object in which
the vessel is engaged, are clothed by the law with the
legal rights of mariners. ...” Ibid. See also, e.g., The Bouker
No. 2, 241 F. 831, 833 (CA2) (Hough, J.) (“an engineer, even
10 Early cases are still authoritative on the meaning of the
Jones Act. As this Court held in McDermott International, Inc. v.
Wilander, 498 U.S. 337, 342 (1991), when Congress used the term
“seaman” in the statute it intended the same meaning that
admiralty courts had previously given to the term.
13
on a harbor tugboat, is a seaman”) (emphasis added), cert.
denied, 245 U.S. 647 (1917).
Except in the Ninth Circuit, no other court has read
Papai and Latsis to alter this well-established doctrine.
The continuing validity of the rule announced in Saylor v.
Taylor is illustrated by the decisions since Papai and Latsis
in which federal courts have adhered to the doctrine and
upheld seaman status for brown-water seamen. See, 2.,
Tonnesen v. Yonkers Contracting Co., 82 F.3d 30 (CA2 1996)
(reversing summary judgment for the employer; the
injured employee worked on a stationary barge on a
bridge construction project in Jamaica Bay); Moyer v. John-
son Brothers Corp., 1997 U.S. Dist. LEXIS 14683, 1997 WL
582820 (E.D. La., Sept. 19, 1997) (No. CIV. A. 96-885)
(denying employer’s motion for summary judgment;
injured employee worked on barges in bridge construc-
tion projects).
State Court Precedent
Consistent with Saylor v. Taylor, state courts of last
resort have regularly recognized that Jones Act coverage
is available to those who do not work on the high seas.
Perhaps the most striking example can be found in a
recent decision of the Louisiana Supreme Court, which
held that an employee on an “airboat” operating on
marshland near Sulphur, Louisiana (over 30 miles inland
from the Gulf of Mexico), could qualify for seaman status.
See Coleman v. Robicheaux Airboats, Inc., 662 So.2d 452 (La.
1995) (per curiam) (reversing 657 So.2d 1331 (La. App.
1995)).
14
State courts of last resort have similarly protected
crewmen, such as petitioner here, who worked on vessels
in ocean harbors. See, e.g., Arundel Corp. v. Jasper, 219 Md.
519, 150 A.2d 415 (1959) (affirming recovery; injured
employee worked on a dredge only in Baltimore Harbor);
Toland v. Atlantic Gahagan Joint Venture Dredge, 57 N.J. 205,
271 A.2d 2 (1970) (per curiam) (affirming intermediate
appellate court’s reversal of summary judgment for the
employer; injured employee worked on a dredge in New-
ark Bay); B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693
(Tex. 1978) (affirming recovery; injured employee worked
on a tender boat in support of a dredge in the Corpus
Christi ship channel); Weeks Marine v. Gilltkin, 247 Va. 89,
439 S.E.2d 341 (1994) (remanding for trial on other issues,
but recognizing seaman status of an employee on a work
boat in a harbor dredging project).
Brown-water seamen on the nation’s lakes and rivers
have also been held to be Jones Act “seamen” in the state
courts of last resort. See, e.g., Allen v. Mobile Interstate
Piledrivers, 475 So.2d 530 (Ala. 1985) (reversing NOV
judgment for the employer; injured employee worked
from a river barge on bridge construction projects); Amer-
ican Barge Line Co. v. Leatherman’s Adm'x, 306 Ky. 284, 206
S.W.2d 955 (1947) (affirming recovery; injured employee
worked on a river boat); Russell v. Pere Marquette Ry. Co.,
245 Mich. 624, 223 N.W. 230 (1929) (affirming recovery;
injured employee worked on a Lake Michigan car ferry),
cert. denied, 279 U.S. 864 (1929); Brannan v. Great Lakes
Dredge & Dock Co., 253 Minn. 28, 91 N.W.2d 166 (1958)
(reversing directed verdict for the employer; injured
employee worked on dredges on the Great Lakes); Ped-
ersen v. Manitowoc Co., 25 N.Y.2d 412, 418-19, 255 N.E.2d
15
146, 149-50 (1969) (reinstating trial court’s judgment for
the plaintiffs, which had been reversed by the intermedi-
ate appellate court; injured employees worked from a
crane barge anchored in the Hudson River for a bridge
construction project); Brown v. L. A. Wells Constr. Co., 143
Ohio St. 580, 585-86, 56 N.E.2d 451, 454-55 (Ohio 1944)
(affirming intermediate appellate court’s reversal of
directed verdict for the employer; injured employee
worked on a drill scow on Lake Eire); Rankin v. Iron City
Sand & Gravel Corp., 356 Pa. 548, 52 A.2d 455 (1947)
(affirming recovery; injured employee worked on a river
tow boat); Indiana & Michigan Electric Co. v. Workers’
Compensation Commissioner, 184 W. Va. 673, 403 S.E.2d 416
(W. Va. 1991) (holding that “a chief engineer . . . resp-
onsible for maintaining the engines of motor vessels that
transport coal barges along the Ohio and Kanawha
Rivers” cannot pursue a workers’ compensation claim
because he is a Jones Act seaman).
This conflict is particularly serious in the states of the
Ninth Circuit, where the risks of state/federal forum-
shopping!! compound the general problems created
when different courts provide different remedies to sim-
ilarly situated plaintiffs bringing their actions under the
11 The “saving to suitors” clause, 28 U.S.C. § 1333(1),
guarantees injured seamen access to state courts. Once filed in
state court, Jones Act actions are not removable to federal court.
See, e.g., Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (CA5
1993) (“It is axiomatic that Jones Act suits may not be removed
from state court because 46 U.S.C. App. § 688 (the Jones Act)
incorporates the general provisions of the Federal Employers’
Liability Act, including 28 U.S.C. § 1445(a), which in turn bars
removal.”).
16
same federal statute. In California, where there are more
maritime workers than in the rest of the states of the
Ninth Circuit combined,!? the state supreme court long
ago recognized that a maritime worker can qualify for
seaman status without going on the high seas. In San-
guinetti v. Moore Dry Dock Co., 36 Cal.2d 812, 228 P.2d 557
(1951), an injured employee spent 40% of his work time
on land and 60% on a tugboat in the Oakland Estuary and
elsewhere in San Francisco Bay. The court summarily
rejected the defendant’s contention that the employee
was not a seaman. Id. at 814-15, 228 P.2d at 558-59. In
more recent years, the California appellate courts have
regularly held seamen entitled to recover under the Jones
Act or permitted seaman status issues to go to the jury
when the plaintiff did not work on the high seas. In
Soucie v. Trautwein Brothers, 275 Cal. App.2d 20, 79 Cal.
Rptr. 671 (1969), the best-known of these cases, the court
held that a “pile butt” who worked on a derrick barge
constructing a seawall in Newport Harbor was a seaman
as a matter of law. The only location requirement was that
the “barge [was] a vessel . . . operating and working in
navigable waters.” Id. at 26, 79 Cal. Rptr. at 675.
12 Compare BurEAu OF THE CeENsus, Dep’T OF COMMERCE,
County Business Patterns 1995: Cauirornia 1 (1997) (reporting
17,112 “water transportation” workers in California) with, e.g.,
County Business Patterns 1995: WASHINGTON 1 (1997) (7,985 water
transportation workers); County Business Patterns 1995: Hawan
1 (1997) (3,816 water transportation workers); County Bustvess
PaTTERNS 1995: OreGon 1 (1997) (2,398 water transportation
workers); County Business Patterns 1995: ALaska 1 (1997) (1,792
water transportation workers).
17
The situation is similar in other West Coast states. In
Oregon, for example, the state supreme court held in
Kinney v. General Construction Co., 248 Or. 500, 435 P.2d
297 (1967), that a deckhand on a tug moving a barge as
part of a river dredging project was entitled to recover
under the Jones Act. The lower courts have since consis-
tently permitted brown-water seamen to recover under
the Jones Act. See, e.g., Gaussoin v. Port of Portland, 144 Or.
App. 247, 927 P.2d 601 (1996) (affirming recovery; injured
employee was a deckhand on a tug in the Port of Portland
— almost 100 miles upstream from the Pacific Ocean);
Watson v. Puget Sound Tug & Barge Co., 96 Or. App. 79, 771
P.2d 307 (1989) (affirming recovery; injured employee was
a deckhand on tugboats and barges on the Columbia
River), rev. denied, 308 Or. 315, 779 P.2d 618 (1989); Veberes
v. Knappton Corp., 92 Or. App. 378, 759 P.2d 279 (1988)
(affirming recovery; injured employee was a deckhand on
a Columbia River tugboat), rev. denied, 307 Or. 78, 763 P.2d
732 (1988). In Washington, the state supreme court has
recognized a waitress on a Puget Sound ferry boat, Gross
v. Washington State Ferries, 59 Wash.2d 241, 367 P.2d 600
(1961), and a fisherman working on a river and the bay at
its mouth, Pryal v. Mardesich, 51 Wash.2d 663, 321 P.2d 269
(1958), as Jones Act seamen.
No state court has read Papai and Latsis to establish a
“high seas” requirement. The continuing validity of the
rule rejected by the Ninth Circuit is illustrated by the
state court decisions since Papai and Latsis that have
adhered to the well-established doctrine and upheld sea-
man status for brown-water seamen. See, e.g., Coleman v.
Robicheaux Airboats, supra; Wall v. Progressive Barge Line,
___ So.2d __, 1997 La. App. LEXIS 2670, 1997 WL 680790
18
(La. App., Oct. 29, 1997) (No. 97-CA-0665) (affirming the
recovery of the captain of an inland harbor tug); Maddox
v. Omni Drilling Corp., 698 So.2d 1022, 1025-26 (La. App.
1997) (holding that a support boat driver on waterways in
the Sabine National Wildlife Refuge is a seaman); Markle
v. Cement Transit Co., __ N.E.2d __, 1997 Ohio App.
LEXIS 4252, 1997 WL 578940 (Ohio App., Sept. 18, 1997)
(No. 70175) (reversing summary judgment for the
employer; injured employee was a cook on a Great Lakes
vessel); Hill v. Workmen's Compensation Appeal Board, 703
A.2d 74 (Pa. Commw. Ct. 1997) (holding that a deck hand
on a restaurant cruise vessel operating on the waters of
the Delaware River was covered by the Jones Act).
THE NINTH CIRCUIT’S DECISION WILL HAVE A
SERIOUS IMPACT ON THE OVERWHELMING
MAJORITY OF U.S. SEAMEN, ON THEIR
EMPLOYERS, AND ON THE DEPARTMENT OF
LABOR
It is important for this Court to address the Ninth
Circuit’s “high seas” requirement and resolve the con-
flicts discussed here immediately, for the decision below
will have a serious impact on the overwhelming majority
of U.S. seamen, on their employers, and on the Depart-
ment of Labor.
The Impact on U.S. Seamen
The decision below creates grave uncertainties for
American seamen. Injured seamen are entitled to sue
their negligent employers under the Jones Act. Other
19
injured maritime workers generally have a workers’ com-
pensation remedy against their employers, without
regard to fault, under the Longshore and Harbor
Workers’ Compensation Act (LHWCA), 33 U.S.C.
§§ 901-50. These two remedies are mutually exclusive.
See, e.g., Latsis, supra, 515 U.S. at 355-56; Gizoni, supra, 502
U.S. at 88; Wilander, supra, 498 U.S. at 347; Swanson, supra,
328 U.S. at 7. Thus it is particularly important for the
courts to provide clear guidance on seaman status, the
requirement that distinguishes the two, lest “ ‘the perils
of judicial review,’ ” Latsis, supra, 515 U.S. at 356 (quoting
G. Gimore & C. Biacx, THE Law Or Apmira ty, § 6-1, at
272 (2d ed. 1975)), undermine the remedies that Congress
has provided. For three decades, this Court left the task
entirely to the lower courts, and the result was “ ‘a laby-
rinth.’ ” Ibid. (quoting Johnson v. John F. Beasley Const. Co.,
742 F.2d 1054, 1060 (CA7 1984), cert. denied, 469 U.S. 1211
(1985)). Wilander began the process of restoring order to
the field, but the decision below shows that the task is not
yet done. Taking language from Latsis and Papai out of
context, the Ninth Circuit has reintroduced serious confu-
sion.
The Ninth Circuit’s high seas requirement has a par-
ticularly far-reaching impact, for today the overwhelming
majority of U.S. seamen would not satisfy this require-
ment. Since the end of World War II, the number of “blue-
water” seamen in the United States has steadily declined
from almost 158,900 in 1945, see W. Lovett (ed.), UNrtep
States SHIPPING PoLicies AND THE Wor_D Market 159 (1996)
(table 6.1), to 7,500 in 1992, see BuREAU OF THE CENSUS,
Dep’tT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED
States 1997, at 660 tbl. 1075 (117th ed. 1997). In 1994,
20
however, the Bureau of Labor Statistics reported that
there were about 48,000 “water transportation workers” —
a category that includes seamen, deckhands, and marine
oilers; captains and pilots; engineers; and mates and deck
officers — on vessels plying the oceans, Great Lakes, har-
bors, rivers, canals, and other waterways.'* See BuREAU OF
Lasor Statistics, Dep’tT of LABOR, OCCUPATIONAL OUTLOOK
Hanpsook, 1996-97 Epition 458-59 (Bulletin 2470, Feb.
1996). Thus we can see that only about fifteen percent of
the nation’s seamen fit the Ninth Circuit’s mold. Under
the decision below, the remaining eighty-five percent
would lose their Jones Act benefits — benefits that Con-
gress intended them to have and benefits that the courts
have traditionally awarded to them.
The Impact on Employers
The decision below similarly creates commercially
unacceptable uncertainties for those who employ seamen.
Just as it is important for employees to know the
remedies available to them, it is important for employers
to know their responsibilities so that they can obtain
appropriate insurance. Under the decision below,
13 The Bureau of Labor Statistics recognizes that this is a
low estimate because many seamen (particularly those who
work on the Great Lakes) do not work year-round. See BuREAU OF
Lapor Statistics, Dep’t oF LABor, OCCUPATIONAL OUTLOOK
HaANpDsBook, 1996-97 Epition 458 (Bulletin 2470, Feb. 1996).
Furthermore, the Bureau’s cited category does not include many
brown-water workers who would qualify as “seamen” outside
of the Ninth Circuit. See, e.g., id. at 473 (11,000 “riggers”
employed in 1994); Gizoni, supra (recognizing that a “rigging
foreman” can qualify as “seaman”).
21
employers that do business both on the West Coast and
elsewhere in the country will need to arrange differing
coverages for different workers depending on where the
workers are assigned. The conflict between state and
federal courts in some of the states of the Ninth Circuit,
see supra at 15-17, will require employers in those states to
arrange double coverage for brown-water seamen. These
employers will be unable to predict which remedy a
particular worker will successfully pursue until the
worker files suit in state court (relying on the Jones Act)
or demands LHWCA benefits (with potential judicial
review in federal court). Because the Jones Act is more
beneficial to injured employees in some contexts and the
LHWCA in others, either option is a real possibility
(depending on the facts of the case) and the employer
must insure for both.
It is particularly important for employers to be able
to predict whether any of their workers may be eligible
for LHWCA benefits because the Act requires covered
employers to “secure the payment of compensation,”
generally by obtaining insurance. See 33 U.S.C. § 932(a).
Both the employer and senior corporate officers are sub-
ject to criminal penalties for violating this requirement.
See 33 U.S.C. § 938(a); 20 C.F.R. § 703.003(a). Thus
employers who rely on the traditional understanding of
seaman status and fail to obtain LHWCA insurance cov-
erage for their brown-water seamen employees risk
serious fines; their senior corporate officers risk fines and
imprisonment.
22
The Impact on the Department of Labor
The Secretary of Labor is responsible for administer-
ing LHWCA. See 33 U.S.C. § 939. The Secretary has dele-
gated these responsibilities to the Director of the Office of
Workers’ Compensation Programs (OWCP), who admin-
isters the Act pursuant to regulations codified at 20 C.F.R.
pts. 701-04. Because the Jones Act and LHWCA are mutu-
ally exclusive, the Ninth Circuit’s decision severely
restricting eligibility for Jones Act coverage will corre-
spondingly expand eligibility for LHWCA coverage.
According to the Maritime Administration, in fiscal year
1995 there were an average of just under 22,500 longshore
workers and just under 49,000 shipyard production
workers (most of whom would presumably qualify for
LHWCA coverage). See MariTIME ADMINISTRATION, DepP’T OF
TRANSPORTATION, ANNUAL Report 1995, table 19 (1996). If
more than 40,000 brown-water seamen were added to
these totals, the population with LHWCA coverage
would increase by more than fifty percent. Thus if the
decision below is allowed to stand, West Coast OWCP
district offices can expect to see their workload increase
by over fifty percent as thousands of additional cases are
governed by LHWCA rather than the Jones Act.
The Department of Labor also has a strong interest in
the proper administration of the statutory scheme that
Congress has established to provide compensation for
injured maritime workers. The Ninth Circuit’s novel
requirement would not only shift over 40,000 workers out
of Jones Act coverage and into LHWCA coverage, it
would put over 40,000 workers into coverage that Con-
gress did not intend them to have. In administering the
LHWCA, the Department is charged with giving effect to
23
Congress’s intent. The decision below interferes with that
mission.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MicHaev F. Stur.ey
Counsel of Record
727 East Dean Keeton Street
Austin, Texas 78705
(512) 471-6318
Davip W. RoBERTSON
P.O. Box 699
6015 McGregor Lane
Dripping Springs, Texas 78620
(512) 858-4158
JOHN R. HILLSMAN
McGulInn, HILtsMAN & PALEFSKY
535 Pacific Avenue
San Francisco, California 94133
(415) 421-9292
Attorneys for Petitioner
February 12, 1998
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 95-16476
Rosert CABRAL, D.C. No.
CV-95-00126-SPK
Plaintiff-Appellant,
ORDER
* AMENDING
OPINION AND
DENYING THE
PETITION FOR
REHEARING AND
SUGGESTION
FOR REHEARING
EN BANC AND
AMENDED
OPINION
HEALY Tissits Bur_pers, INc.,
Defendant-Appellee.
ee ee ee ee ee
Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, Senior District Judge, Presiding
Argued and Submitted
December 9, 1996 — San Francisco, California
Filed July 8, 1997
Amended October 15, 1997
Before: Betty B. Fletcher, Charles Wiggins,
Thomas G. Nelson, Circuit Judges.
Opinion by Judge Wiggins
2a
COUNSEL
Christopher P. McKenzie, Honolulu, Hawaii, for the
plaintiff-appellant.
Michael Formby, Alcantara & Frame, Honolulu, Hawaii,
for the defendant-appellee.
ORDER
The opinion filed July 8, 1997, slip opinion number
7877 and appearing at 118 F.3d 1363, is amended as
follows:
1. At slip op. 7881, line 27, replace “three” with
“four”.
2. At slip op. p. 7881, line 28, add footnote after
”
law.”:
See McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356-7
(1991) (holding that one need not aid in the navigation of
a vessel in order to qualify as a seaman under the Jones
Act); Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 92
(1991) (holding that a ship repairman employed at a
shipyard is not limited to a remedy under the LHWCA as
a matter of law if genuine issues of fact exist as to
whether the worker was also a seaman under the Jones
Act due to an employment-related connection to a vessel
in navigation); Chandris, Inc. v. Latsis, 115 S. Ct. 2172,
2190-2192 (1995) (setting forth a two-prong test for sea-
man status designed to separate sea-based maritime
workers from land-based employees); Harbor Tug & Barge
Co. v. Papai, 117 S. Ct. 1535, 1541 (1997) (applying the
3a
Latsis test and holding that a showing of common owner-
ship or control is required when evaluating the plaintiff's
employment-related connection to a vessel in navigation).
3. Page 7881, line 30, replace “second” with “third”.
With these amendments, the panel has voted unani-
mously to deny the petition for rehearing and Judges
Fletcher and T.G. Nelson vote to reject the suggestion for
rehearing en banc and Judge Wiggins so recommends.
The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a
vote on whether to rehear the matter en banc. Fed. R.
App. P. 35.
The petition for rehearing is DENIED and the sugges-
tion for rehearing en banc is REJECTED.
Defendant-appellee Healy Tibbitts Builders’ motion
to strike plaintiff’s petition for rehearing is DENIED.
OPINION
WIGGINS, Circuit Judge:
Robert Cabral was injured while he was working as a
crane operator aboard a crane barge on a construction
project in Pearl Harbor. He sued his employer under the
Jones Act. The district court granted summary judgment
in favor of his employer on the ground that Cabral was
not a “seaman” under the Jones Act. Cabral appeals. We
have jurisdiction under 28 U.S.C. § 1291. We affirm the
district court’s judgment for the reasons set forth below.
da
BACKGROUND
From July 14, 1993 to May 31, 1994, Cabral was
employed by Healy Tibbits Builders, Inc. (“Healy”). Cab-
ral worked on a variety of land-based and sea-based
projects during this period. From June 1, 1994 to August
14, 1994, Cabral did not work for Healy. On August 15,
1994, Healy hired Cabral to work as the crane operator
for a Healy construction project at the Ford Island Ferry
in Pearl Harbor. The project involved removing and
replacing “mooring dolphins” at the ferry. A mooring
dolphin is a timber pile driven into the bottom of the
harbor that cushions the ferry during landing.
Cabral was assigned to operate the crane aboard
Barge 538. Between August 15, 1994 and the date of the
accident, Cabral spent approximately ninety percent of
his work time aboard Barge 538 operating the vessel’s
crane. Barge 538 is approximately 160 feet long and 50
feet wide. It has a raked bow and stern, drawing about
five feet of water at the stern and four at the bow.
Although the barge is not self-propelled, it can be moved
up to 500 feet by manipulating its anchor lines. The
United States Coast Guard inspects Barge 538 annually to
ensure seaworthiness and compliance with safety stan-
dards. The barge has been used on various construction
projects throughout the Honolulu area and as far away as
the Philippines. Although Barge 538 can serve other pur-
poses, it is primarily a crane barge. To serve that primary
purpose, it has a 360-degree, 125 foot crane permanently
welded to its deck.
On the weekend of September 24 and 25, 1994, Barge
538 was temporarily relocated to another part of the
5a
-
harbor to take soil samples. This soil sampling project did
not require the use of the barge’s crane, so Cabral was not
aboard. The barge was returned to the Ford Island project
on the afternoon of the 25th. When Cabral reported for
work on the morning of Monday, September 26, 1994, he
slipped and fell on the barge’s gangway, suffering an
injury to his lower back. He brought this action under the
Jones Act against Healy.
The district court granted summary judgment in
Healy’s favor, holding that Cabral was not entitled to
“seaman” status because his connection with Barge 538
“was at best transitory.” Accordingly, the district court
entered judgment in favor of Healy on Cabral’s com-
plaint.
DISCUSSION
We review de novo the district court’s order granting
summary judgment in favor of Healy. Warren v. City of
Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
S. Ct. 1261 (1996). We must determine, viewing the evi-
dence in the light most favorable to Cabral, whether there
are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive
law. Id. Whether Cabral was a seaman when he slipped
and fell on Barge 538’s gangway is a mixed question of
law and fact. Boy Scouts of Am. v. Graham, 86 F.3d 861, 864
(9th Cir. 1996). Nevertheless, summary judgment is man-
dated where the facts and the law will reasonably sup-
port only one conclusion regarding Cabral’s seaman
status. McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356
(1991).
6a
The Jones Act provides a cause of action to any
“seaman” who suffers personal injuries in the course of
his employment. See 46 U.S.C. app. § 688. Unfortunately,
what seems a fairly simple inquiry — whether a particular
employee is a “seaman” for purposes of the Jones Act -
has been anything but for the various federal courts
which have grappled with the issue, including our own.
With the Supreme Court’s recent decision in Harbor Tug &
Barge Co. v. Papai, 117 S. Ct. 1535 (1997), the Jones Act
“seaman” inquiry has reached our nation’s highest court
four times already this decade, a remarkable record for
any area of the law.!
We begin our attempt to navigate the perils of the
“seaman” inquiry with the third of these cases, Chandris,
Inc. v. Latsis, 115 S. Ct. 2172 (1995) (“Latsis”). There, the
Supreme Court formulated a two-part test for determin-
ing whether an employee should be treated as a “sea-
man” under the Jones Act:
' See McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356-57
(1991) (holding that one need not aid in the navigation of a
vessel in order to qualify as a seaman under the Jones Act);
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 92 (1991) (holding
that a ship repairman employed at a shipyard is not limited toa
remedy under the LHWCA as a matter of law if genuine issues
of fact exist as to whether the worker was also a seaman under
the Jones Act due to an employment-related connection to a
vessel in navigation); Chandris, Inc. v. Latsis, 115 S. Ct. 2172,
2190-2192 (1995) (setting forth a two-prong test for seaman
status designed to separate sea-based maritime workers from
land-based employees); Harbor Tug & Barge Co. v. Papai, 117 S.
Ct. 1535, 1541 (1997) (applying the Latsis test and holding that a
showing of common ownership or control is required when
evaluating the plaintiff's employment-related connection to a
vessel in navigation).
7a
[T]he essential requirements for seaman status
are twofold. First, as we emphasized in Wiland-
er, “an employee's duties must ‘contribut[e] to
the function of the vessel or to the accomplish-
ment of its mission.’ ” ... Second, ...a seaman
must have a connection to a vessel in navigation
(or to an identifiable group of such vessels) that
is substantial in terms of both its duration and its
nature.
Latsis, 115 S. Ct. at 2190 (quoting Wilander, 498 U.S. at
355) (emphases added). The Court explained that the
latter requirement was designed to separate sea-based
maritime workers from land-based employees “who have
only a transitory or sporadic connection to a vessel in
navigation, and therefore whose employment does not
regularly expose them to the perils of the sea.” Id.
Healy does not dispute that Cabral meets the first
part of this test; Cabral’s duties as a crane operator
unquestionably contribute to Barge 538’s function as a
crane barge. We turn, then, to the second part of the Latsis
test, and consider whether Cabral had a connection that
was substantial in terms of duration and nature to a
vessel in navigation.
Assuming that Barge 538 was a vessel in navigation,
the district court concluded that Cabral’s connection with
Barge 538 was not substantial in terms of duration and
nature. The district court emphasized that Cabral’s
assignment to Barge 538 was temporary, noting that the
barge was simply a platform upon which he happened to
be performing his work as a crane operator. As a result,
the district court granted summary judgment in Healy’s
favor.
8a
In Papai, the Supreme Court had to decide whether
summary judgment should be granted against a Jones Act
plaintiff who had been hired to perform a one-day paint-
ing job aboard the defendant’s tugboat. John Papai was
hired out of a union hiring hall by the owner of the Point
Barrow to do a one-day painting job on the tug’s housing
structure. While he was painting, he injured his knee
when he fell from a ladder. Papai had worked for the
Point Barrow’s owner on twelve previous occasions in the
two-and-a-half months before his injury. The district
court granted summary judgment in favor of the tug-
boat’s owner, concluding that Papai was not a seaman
within the meaning of the Jones Act.
A divided panel of our court reversed. The panel
majority held that the relevant inquiry was “not whether
plaintiff had a permanent connection with the vessel
[but] whether plaintiff’s relationship with a vessel (or
group of vessels) was substantial in terms of duration
and nature, which requires consideration of the total
circumstances of his employment.” Papai v. Harbor Tug &
Barge Co., 67 F.3d 203, 206 (9th Cir. 1995). The panel
majority concluded that the group of employers who
hired workers out of the union hall could be considered a
common employer for purposes of determining a
worker’s seaman status. As a result, the panel majority
held that “all the circumstances surrounding the work
performed by plaintiff for defendant as a deckhand prior
to (and after, if any) the accident, as well as work per-
formed for other employers during the relevant time
period should be considered in making the determina-
tion.” Id. The panel majority then concluded that there
were triable issues of fact as to whether the plaintiff had a
9a
substantial connection with the vessels upon which he
worked. Id.
The Supreme Court granted certiorari and reversed.
Most of the Court’s discussion focused on whether our
majority decision properly allowed Papai to rely on work
done for other employers; adopting the view of the dis-
sent, the Court held that we misapplied Latsis by not
requiring a showing of common ownership or control.
Papai, 117 S. Ct. at 1541. However, as part of this discus-
sion, the Court applied the two-part Latsis test to Papai’s
work aboard the Point Barrow and concluded that no
reasonable jury could conclude that Papai was a seaman
as a matter of law. The Court commented thusly on the
“substantial connection” inquiry:
For the substantial connection requirement to
serve its purpose, the inquiry into the nature of
the employee’s connection to the vessel must
concentrate on whether the employee’s duties
take him to sea. This will give substance to the
inquiry both as to the duration and nature of the
employee’s connection to the vessel and be
helpful in distinguishing land-based from sea-
based employees.
Id. at 1540. Then, a few paragraphs later, after noting that
Papai’s work on the Point Barrow was not of a seagoing
nature, the Court concluded that Papai’s assignment to
the Point Barrow on the day of the injury “was the sort of
‘transitory or sporadic’ connection to a vessel or group of
vessels that... . does not qualify one for seaman status.”
Id. at 1542 (quoting Latsis, 115 S. Ct. at 2190).
For our present purposes, Papai and Latsis dictate
that when we determine whether the nature of Cabral’s
10a
connection to Barge 538 is substantial, we should focus on
whether Cabral’s duties were primarily sea-based activ-
ities. In both cases, the Supreme Court emphasized that
the purpose of the substantial connection test is to sepa-
rate land-based workers who do not face the perils of the
sea from sea-based workers whose duties necessarily
require them to face those risks. See Papai, 117 S. Ct. at
1540 (“[T]he inquiry into the nature of the employee's
connection to the vessel must concentrate on whether the
employee's duties take him to sea.”); Latsis, 115 S. Ct. at
2190 (“[T]he Jones Act remedy is reserved for sea-based
maritime employees whose work regularly exposes them
to ‘the special hazards and disadvantages to which they
who go down to sea in ships are subjected.’ ” (quoting
Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone,
C.J., dissenting))).
We conclude that the undisputed evidence shows
that Cabral was a land-based worker who had only a
transitory or sporadic connection with Barge 538. Cabral
was hired to work on Barge 538 as a crane operator and
not as a crew member. Cabral presents no evidence show-
ing that he was ever aboard Barge 538 when it was
anywhere but the Ford Island Ferry project. In fact, when
the barge was used in another part of the harbor on a soil
sampling project on the weekend immediately preceding
the accident, Cabral was not aboard because the barge’s
crane was not used. Furthermore, Cabral presents no
evidence showing that he would continue to work aboard
Barge 538 after the Ford Island Ferry project was com-
pleted. All of the evidence points to one conclusion: that
Cabral was a land-based crane operator who happened to
be assigned to a project which required him to work
lla
aboard Barge 538. In sum, we hold that the district court
correctly concluded that there was no evidence from
which a reasonable jury could infer that Cabral met the
substantial connection test. As a result, we affirm the
district court’s judgment in favor of Healy.
AFFIRMED.
2 Our conclusion that Cabral did not have a substantial
connection with Barge 538 means we need not reach the issue of
whether Barge 538 was a vessel in navigation. Thus, we express
no opinion on this issue.
12a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Rosert CABRAL,
No. 95-16476
Plaintiff-Appellant, DC. No
V. CV-95-00126-SPK
Heatcy Tissrtrs Bur_pers, INc., OPINION
ll i i
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, Senior District Judge, Presiding
Argued and Submitted
December 9, 1996 — San Francisco, California
Filed July 8, 1997
Before: Betty B. Fletcher, Charles Wiggins,
Thomas G. Nelson, Circuit Judges.
Opinion by Judge Wiggins
COUNSEL
Christopher P. McKenzie, Honolulu, Hawaii, for the
plaintiff-appellant.
Michael Formby, Alcantara & Frame, Honolulu, Hawaii,
for the defendant-appellee.
13a
OPINION
WIGGINS, Circuit Judge:
Robert Cabral was injured while he was working as a
crane operator aboard a crane barge on a construction
project in Pearl Harbor. He sued his employer under the
Jones Act. The district court granted summary judgment
in favor of his employer on the ground that Cabral was
not a “seaman” under the Jones Act. Cabral appeals. We
have jurisdiction under 28 U.S.C. § 1291. We affirm the
district court’s judgment for the reasons set forth below.
BACKGROUND
From July 14, 1993 to May 31, 1994, Cabral was
employed by Healy Tibbits Builders, Inc. (“Healy”). Cab-
ral worked on a variety of land-based and sea-based
projects during this period. From June 1, 1994 to August
14, 1994, Cabral did not work for Healy. On August 15,
1994, Healy hired Cabral to work as the crane operator
for a Healy construction project at the Ford Island Ferry
in Pearl Harbor. The project involved removing and
replacing “mooring dolphins” at the ferry. A mooring
dolphin is a timber pile driven into the bottom of the
harbor that cushions the ferry during landing.
Cabral was assigned to operate the crane aboard
Barge 538. Between August 15, 1994 and the date of the
accident, Cabral spent approximately ninety percent of
his work time aboard Barge 538 operating the vessel's
crane. Barge 538 is approximately 160 feet long and 50
feet wide. It has a raked bow and stern, drawing about
five feet of water at the stern and four at the bow.
l4a
Although the barge is not self-propelled, it can be moved
up to 500 feet by manipulating its anchor lines. The
United States Coast Guard inspects Barge 538 annually to
ensure seaworthiness and compliance with safety stan-
dards. The barge has been used on various construction
projects throughout the Honolulu area and as far away as
the Philippines. Although Barge 538 can serve other pur-
poses, it is primarily a crane barge. To serve that primary
purpose, it has a 360-degree, 125 foot crane permanently
welded to its deck.
On the weekend of September 24 and 25, 1994, Barge
538 was temporarily relocated to another part of the
harbor to take soil samples. This soil sampling project did
not require the use of the barge’s crane, so Cabral was not
aboard. The barge was returned to the Ford Island project
on the afternoon of the 25th. When Cabral reported for
work on the morning of Monday, September 26, 1994, he
slipped and feil on the barge’s gangway, suffering an
injury to his lower back. He brought this action under the
Jones Act against Healy.
The district court granted summary judgment in
Healy’s favor, holding that Cabral was not entitled to
“seaman” status because his connection with Barge 538
“was at best transitory.” Accordingly, the district court
entered judgment in favor of Healy on Cabral’s com-
plaint.
DISCUSSION
We review de novo the district court’s order granting
summary judgment in favor of Healy. Warren v. City of
Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
15a
S. Ct. 1261 (1996). We must determine, viewing the evi-
dence in the light most favorable to Cabral, whether there
are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive
law. Id. Whether Cabral was a seaman when he slipped
and fell on Barge 538’s gangway is a mixed question of
law and fact. Boy Scouts of Am. v. Graham, 86 F.3d 861, 864
(9th Cir. 1996). Nevertheless, summary judgment is man-
dated where the facts and the law will reasonably sup-
port only one conclusion regarding Cabral’s seaman
status. McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356
(1991).
The Jones Act provides a cause of action to any
“seaman” who suffers personal injuries in the course of
his employment. See 46 U.S.C. app. § 688. Unfortunately,
what seems a fairly simple inquiry — whether a particular
employee is a “seaman” for purposes of the Jones Act -
has been anything but for the various federal courts
which have grappled with the issue, including our own.
With the Supreme Court’s recent decision in Harbor Tug &
Barge Co. v. Papai, 117 S. Ct. 1535 (1997), the Jones Act
“seaman” inquiry has reached our nation’s highest court
three times already this decade, a remarkable record for
any area of the law.
We begin our attempt to navigate the perils of the
“seaman” inquiry with the second of these cases,
Chandris, Inc. v. Latsis, 115 S. Ct. 2172 (1995) (“Latsis”).
There, the Supreme Court formulated a two-part test for
determining whether an employee should be treated as a
“seaman” under the Jones Act:
l6a
[T]he essential requirements for seaman status
are twofold. First, as we emphasized in Wilander,
“an employee’s duties must ‘contribut[e] to the
function of the vessel or to the accomplishment
of its mission.’” ... Second, ...a seaman must
have a connection to a vessel in navigation (or to
an identifiable group of such vessels) that is
substantial in terms of both its duration and its
nature.
Latsis, 115 S. Ct. at 2190 (quoting Wilander, 498 U.S. at 355)
(emphases added). The Court explained that the latter
requirement was designed to separate sea-based maritime
workers from land-based employees “who have only a
transitory or sporadic connection to a vessel in naviga-
tion, and therefore whose employment does not regularly
expose them to the perils of the sea.” Id.
Healy does not dispute that Cabral meets the first
part of this test; Cabral’s duties as a crane operator
unquestionably contribute to Barge 538’s function as a
crane barge. We turn, then, to the second part of the Latsis
test, and consider whether Cabral had a connection that
was substantial in terms of duration and nature to a
vessel in navigation.
Assuming that Barge 538 was a vessel in navigation,
the district court concluded that Cabral’s connection with
Barge 538 was not substantial in terms of duration and
nature. The district court emphasized that Cabral’s
assignment to Barge 538 was temporary, noting that the
barge was simply a platform upon which he happened to
be performing his work as a crane operator. As a result,
the district court granted summary judgment in Healy’s
favor.
Pe
eee eee ee
17a
In Papai, the Supreme Court had to decide whether
summary judgment should be granted against a Jones Act
plaintiff who had been hired to perform a one-day paint-
ing job aboard the defendant's tugboat. John Papai was
hired out of a union hiring hall by the owner of the Point
Barrow to do a one-day painting job on the tug’s housing
structure. While he was painting, he injured his knee
when he fell from a ladder. Papai had worked for the
Point Barrow ‘s owner on twelve previous occasions in the
two-and-a-half months before his injury. The district
court granted summary judgment in favor of the tug-
boat’s owner, concluding that Papai was not a seaman
within the meaning of the Jones Act.
A divided panel of our court reversed. The panel
majority held that the relevant inquiry was “not whether
plaintiff had a permanent connection with the vessel
[but] whether plaintiff’s relationship with a vessel (or
group of vessels) was substantial in terms of duration
and nature, which requires consideration of the total
circumstances of his employment.” Papai v. Harbor Tug &
Barge Co., 67 F.3d 203, 206 (9th Cir. 1995). The panel
majority concluded that the group of employers who
hired workers out of the union hall could be considered a
common employer for purposes of determining a
worker’s seaman status. As a result, the panel majority
held that “all the circumstances surrounding the work
performed by plaintiff for defendant as a deckhand prior
to (and after, if any) the accident, as well as work per-
formed for other employers during the relevant time
period should be considered in making the determina-
tion.” Id. The panel majority then concluded that there
were triable issues of fact as to whether the plaintiff had a
18a
substantial connection with the vessels upon which he
worked. Id.
The Supreme Court granted certiorari and reversed.
Most of the Court’s discussion focused on whether our
majority decision properly allowed Papai to rely on work
done for other employers; adopting the view of the dis-
sent, the Court held that we misapplied Latsis by not
requiring a showing of common ownership or control.
Papai, 117 S. Ct. at 1541. However, as part of this discus-
sion, the Court applied the two-part Latsis test to Papai’s
work aboard the Point Barrow and concluded that no
reasonable jury could conclude that Papai was a seaman
as a matter of law. The Court commented thusly on the
“substantial connection” inquiry:
For the substantial connection requirement to
serve its purpose, the inquiry into the nature of
the employee’s connection to the vessel must
concentrate on whether the employee’s duties
take him to sea. This will give substance to the
inquiry both as to the duration and nature of the
employee’s connection to the vessel and be
helpful in distinguishing land-based from sea-
based employees.
Id. at 1540. Then, a few paragraphs later, after noting that
Papai’s work on the Point Barrow was not of a seagoing
nature, the Court concluded that Papai’s assignment to
the Point Barrow on the day of the injury “was the sort of
‘transitory or sporadic’ connection to a vessel or group of
vessels that .. . . does not qualify one for seaman status.”
Id. at 1542 (quoting Latsis, 115 S. Ct. at 2190).
For our present purposes, Papai and Latsis dictate
that when we determine whether the nature of Cabral’s
19a
connection to Barge 538 is substantial, we should focus on
whether Cabral’s duties were primarily sea-based activ-
ities. In both cases, the Supreme Court emphasized that
the purpose of the substantial connection test is to sepa-
rate land-based workers who do not face the perils of the
sea from sea-based workers whose duties necessarily
require them to face those risks. See Papai, 117 S. Ct. at
1540 (“[T]he inquiry into the nature of the employee’s
connection to the vessel must concentrate on whether the
employee’s duties take him to sea.”); Latsis, 115 S. Ct. at
2190 (“[T]he Jones Act remedy is reserved for sea-based
maritime employees whose work regularly exposes them
to ‘the special hazards and disadvantages to which they
who go down to sea in ships are subjected.’ ” (quoting
Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone,
C.J., dissenting))).
We conclude that the undisputed evidence shows
that Cabral was a land-based worker who had only a
transitory or sporadic connection with Barge 538. Cabral
was hired to work on Barge 538 as a crane operator and
not as a crew member. Cabral presents no evidence show-
ing that he was ever aboard Barge 538 when it was
anywhere but the Ford Island Ferry project. In fact, when
the barge was used in another part of the harbor on a soil
sampling project on the weekend immediately preceding
the accident, Cabral was not aboard because the barge’s
crane was not used. Furthermore, Cabral presents no
evidence showing that he would continue to work aboard
Barge 538 after the Ford Island Ferry project was com-
pleted. All of the evidence points to one conclusion: that
Cabral was a land-based crane operator who happened to
be assigned to a project which required him to work
20a
aboard Barge 538. In sum, we hold that the district court
correctly concluded that there was no evidence from
which a reasonable jury could infer that Cabral met the
substantial connection test. As a result, we affirm the
district court’s judgment in favor of Healy.!
AFFIRMED.
' Our conclusion that Cabral did not have a substantial
connection with Barge 538 means we need not reach the issue of
whether Barge 538 was a vessel in navigation. Thus, we express
no opinion on this issue.
2la
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROBERT A. CABRAL, ) CIVIL NO. 95-00126 SPK
Plaintiff, | )
) ORDER DENYING
vs. ) PLAINTIFFS MOTION
HEALY TIBBITS BUILDERS, ) FOR SUMMARY
INC.; and JOHN DOES 1-10, ) JUDGMENT AND
) GRANTING
Defendants. ) DEFENDANT’S CROSS
) MOTION FOR
) SUMMARY JUDGMENT
)
) (Filed Jun. 19, 1995)
ORDER DENYING PLAINTIFF’S MOTION FOR
_ SUMMARY JUDGMENT AND GRANTING
DEFENDANT'S CROSS MOTION FOR
SUMMARY JUDGMENT
I. OVERVIEW
Plaintiff Robert A. Cabral (“Cabral”), who was
allegedly injured when he slipped and fell on a barge
being used as a platform for a crane in Pearl Harbor,
seeks summary judgment as to his asserted status as a
“seaman” under the Jones Act and general maritime law
and his entitlement to maintenance and cure. Defendant
Healy Tibbits Builders, Inc. (“Healy”) has brought a cross
motion for summary judgment, seeking a ruling by this
22a
court that Plaintiff is not a “seaman” and thus not enti-
tled to recover maintenance and cure under general mar-
itime law, damages for unseaworthiness, or damages for
negligence under the Jones Act.
Il. BACKGROUND
Cabral was injured on September 26, 1994 while
working for Healy as a crane operator on Barge 538. The
project Cabral was working on at the time involved the
removal and reinstallation of “mooring dolphins” for the
Ford Island ferry at Pearl Harbor. The dolphins are made
up of timber piles driven into the bottom of the harbor.
Cabral apparently began working on the project on
August 15, 1994, a little less than a month and a half
before he was injured. Plaintiff and Defendant disagree as
to what percentage of Cabral’s work time was spent on
Barge 538. They also disagree as to whether Cabral
worked on any other vessels.!
' Plaintiff cites to the deposition of one Richard Heltzel,
presumably a Healy company official, who testified that Cabral
did “most,” or about 90 percent of his work on Barge 538,
though he might have done a few hours of work on shore.
Defendant cites to an “employment chronology” for Cabral,
presumably produced by Healy, showing that he worked for the
company from July 1993 to October 1994 and that his
assignments involved operating cranes “onshore,” “on beach,”
at “Kahe Power Plant, Oahu,” at “Kal Hwy, Hawaii Kai, Oahu,”
at “Hickam Dormitory,” and at “Hickam AFB,” and that such
assignments constituted significantly more than 10 percent of
his total work time. It appears that Plaintiff is considering only
the period after August 15, 1994, when Cabral began working
on the Ford Island project. Defendant, on the other hand, seeks
to direct the court’s attention to a longer period over which
23a
Barge 538, which is owned by Defendant Healy, is
160 feet long and 50 feet wide. It draws about five feet of
water at the stern and four feet at the bow. The bow and
stern are raked. The barge’s name is printed on the stern
and on the sides. “New York,” the name of the barge’s
hailing port, is painted on the stern. The barge is not self-
propelled, but must be towed from place to place. Once
anchored, the barge can move a limited distance fore and
aft by manipulation of bow and stern lines using a winch.
The United States Coast Guard inspects Barge 538 once a
year for seaworthiness and compliance with various
safety regulations. The barge has seen service in construc-
tion projects in Manila Bay in the Philippines and in
Nawiliwili Harbor on Kauai as well as in Pearl Harbor.
Mounted atop the barge is a 360-degree crane with a
125-foot boom. The frame of the crane is permanently
welded to the deck of the barge. The barge also contains a
20-foot-long shipping container for small tool storage,
and a desk. There is also a generator to power lights for
nighttime work.
On September 24, 1994, two days before Cabral was
injured, Barge 538 was temporarily relocated to another
area of the harbor for use by a company doing test
borings on the harbor bottom. The test boring job was
completed on the afternoon of September 25, 1994 and
the barge was returned to the Ford Island worksite.
Cabral alleges that he was injured on the morning of
September 26, 1994 when he slipped and fell on mud that
Cabral worked for Defendant in a variety of assignments, some
land-based and some on the water.
24a
had accumulated on the barge during the test boring
operation. He sued, seeking recovery for negligence
under the Jones Act, for unseaworthiness, and for mainte-
nance and cure.
III. DISCUSSION
A. Whether Cabral was a “Seaman.”
The Ninth Circuit has adhered to a three-part test for
determining whether a worker is a “seaman” for pur-
poses of the Jones Act and general maritime law:
(1) the vessel on which the claimant was
employed must be in navigation;
(2) the claimant must have a more or less
permanent connection with the vessel; and
(3) the claimant must be aboard primarily
to aid in navigation.
McKinley v. All Alaskan Seafoods, Inc., 980 F.2d 567, 569
(9th Cir. 1992) (citing Estate of Wenzel v. Seaward Marine
Servs., Inc. 709 F.2d 1326, 1327 (9th Cir. 1983)).
The United States Supreme Court rejected the third
prong of this test in McDermott International, Inc. v. Wi-
lander, 498 U.S. 336 (1991), holding that to be a “seaman”
one need only be “doing the ship’s work,” and need not
be directly engaged in the navigation of a vessel. The
Plaintiff in Wilander was a paint foreman injured while
assigned to a paint boat chartered by the defendant.
Accordingly, the fact that Cabral was a crane operator,
25a
and not at all engaged in propelling, steering or other-
wise “navigating” Barge 538, is not dispositive. If a paint-
ing foreman aboard a paint boat can be said to be doing
“the ship’s work,” the same can probably be said about a
crane operator aboard a crane barge.
Assuming that Cabral was doing the work of Barge
538 within the meaning of Wilander, two questions
remain: (1) Was Barge 538 a “vessel in navigation?” (2)
Did Cabral have a “more or less permanent” connection
with the barge? (The Supreme Court recently further
refined the seaman test in Chandris, Inc. v. Latsis, 1995 WL
352858 (U.S. June 14, 1995), holding that “the duration of
a worker’s connection to a vessel and the nature of the
worker's activities, taken together, determine whether a
maritime worker is a seaman[.]”)
1. Whether Barge 538 was a Vessel in Naviga-
tion.
To answer the first question, Plaintiff relies primarily
on Wenzel v. Seaward Marine Services, 709 F.2d 1326 (9th
Cir. 1983), in which the Ninth Circuit reversed this court’s
grant of summary judgment in a case involving a sub-
merged cleaning and maintenance platform known as a
“SCAMP.” Plaintiff Wenzel was killed while cleaning the
sea chest of a Navy ship. Seaward Marine used the
SCAMP, an unmanned saucer-shaped vehicle that trav-
eled along the hull of a ship, in its cleaning operations.
Wenzel’s estate argued that the SCAMP was a “vessel in
navigation” and that Wenzel was a seaman employed to
aid in the navigation of the SCAMP.
26a
In holding that summary judgment in favor of Sea-
ward was inappropriate, the Ninth Circuit noted that
various special purpose craft, “far different from tradi-
tional seafaring ships,” have been held by courts to be
vessels. Id. at 1328. The appellate court concluded that
Wenzel’s status as a seaman and whether the SCAMP was
a vessel were close questions of fact precluding summary
judgment. Id.
Healy does not attempt to distinguish Wenzel, but
instead relies on DiGiovanni v. Traylor Bros., Inc., 959 F.2d
1119 (1st Cir. 1992), cert. denied, 113 S.Ct. 87 (1992), in
which the First Circuit held that a Carpenter’s Union
member who slipped and fell while assigned to work on
a barge being used as a platform for a construction crane
was not a “seaman” within the meaning of the Jones Act.
The First Circuit noted the Supreme Court’s observation
in Wilander that the Jones Act was intended to recognize
that seamen who go down to sea in ships incur special
hazards not incurred at dockside. Accordingly, the
appeals court held that “if a barge or other float’s pur-
pose 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 naviga-
tion or transit.” Id. at 1123.
Healy contends that the holding in DiGiovanni “has
quickly become the standard for other courts,” citing, e.g.,
Sala v. Gates Constr. Corp., 868 F.Supp. 474 (E.D.N.Y. 1994);
Taylor v. Cooper River Constructors, 830 F.Supp. 300 (D.S.C.
1993). Healy further argues that Barge 538’s primary pur-
pose or business was not navigation or commerce, i.e.,
the transport of goods or people over navigable water-
ways. Moreover, Barge 538 was not in actual navigation
27a
or transit at the time Cabral was injured. Thus, according
to Healy, Cabral does not meet the test for seaman status
laid out in DiGiovanni.
The Ninth Circuit cited DiGiovanni with apparent
approval in Kathriner v. UNISEA, Inc., 975 F.2d 657 (9th
Cir. 1992), paying particular attention to the First Cir-
cuit’s “primary purpose or business” test. Kathriner, how-
ever, involved a floating fish processing plant built inside
the gutted hull of an old liberty ship and permanently
anchored and docked at its port in Alaska. The Ninth
Circuit had little trouble finding that a worker in the fish
processing plant was not a “seaman” for Jones Act pur-
poses. The Kathriner court did not overrule Wenzel, but
instead distinguished the case by noting that although
neither the SCAMP nor the fish processing factory in
UNISEA could navigate the high seas,
the SCAMP is still an independent mechanism
that is designed to perform its function in the
water. The UNISEA, however, is designed as a
floating factory - merely extending land over
water for the purpose of increasing the usable
space of a dockside fish processing operation.
Kathriner, 975 F.2d at 660.
It would seem that the answer to the question of
whether Barge 538 is a vessel in navigation depends on
whether the barge is more like the UNISEA, i.e., “merely
extending land over water,” or the SCAMP, an “indepen-
dent mechanism” performing its function on the water.
On balance, it appears Barge 538 has more in common
with the SCAMP than the UNISEA. It is undisputed that
the barge has crossed the high seas for use in construc-
tion projects on Kauai and in the Philippines. Such
28a
mobility certainly distinguishes Barge 538 from the UNI-
SEA, making it more than a simple extension of a land-
based work area.
Assuming without deciding that Barge 538 is a vessel
in navigation for purposes of the instant case, however, a
question remains as to whether Cabral had the requisite
employment-related connection to the barge at the time
of his accident. The court finds that he did not.
2. Whether Cabral had a More or Less Perma-
nent Connection with the Vessel.
As already noted, Cabral contends he spent more
than 90 percent of his working time on Barge 538 and
thus owed his “allegiance” to the barge. Healy, on the
other hand, notes that Cabral’s assignment on Barge 538
was only one of numerous jobs he performed for Healy
over a period of about a year and a half as a crane
operator and member of the Operating Engineers Union.?
Healy argues that far from being a member of any ship’s
crew, Cabral was a land-based employee assigned to
operate cranes on land and water.
Cabral’s focus on the brief period during which he
worked for Healy on Barge 538 -— as opposed to his
overall employment as a crane operator — tends to pro-
duce a distorted picture of his work. He was, first and
foremost, a crane operator. Much, if not most, of his
2 As a member of the union, Cabral apparently worked for
Healy and other contractors on specific assignments. He was
not a permanent employee of Healy, but was available for hire
to Healy and other contractors as work came up.
29a
work, excluding the period during which he was
assigned to Barge 538, was done on land. His assignment
to Barge 538 was temporary; it would end when the work
on the mooring dolphins was complete. There is no indi-
cation in the record that Cabral owed a crew member’s
“allegiance” to Barge 538. Rather, the barge was simply a
platform upon which he happened to be performing his
work as a crane operator.
As the United States Supreme Court recently noted,
the reason for requiring a “substantive connection”
between a worker seeking seaman status and his or her
purported vessel is “to separate the sea-based maritime
employees who are entitled to Jones Act protection from
those land-based workers who have only a transitory or
sporadic connection to a vessel in navigation, and there-
fore whose employment does not regularly expose them
to the perils of the sea.” Chandris, 1995 WL 352858, at *10.
Cabral’s connection with Barge 538 was at best tran-
sitory. Moreover, his work on a crane mounted atop a
barge moored in a sheltered harbor is hardly the sort of
employment that would regularly expose him to “the
perils of the sea.” The court finds that Cabral is not a
seaman for purposes of the Jones Act and general mar-
itime law. Accordingly, he is not entitled to recover in
negligence under the Jones Act, or for unseaworthiness
Or maintenance and cure under general maritime law.
30a
IV. CONCLUSION
Plaintiff’s motion for summary judgment is DENIED.
Defendant’s cross motion for summary judgment is
GRANTED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 19, 1995.
/s/ Samuel P. King
SAMUEL P. KING
United States District Judge
3la
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROBERT A. CABRAL, ) CIVIL NO. 95-00126 SPK
POS )
Plaintiff, ) ORDER DENYING
va. ) PLAINTIFF’S MOTION
HEALY TIBBITS BUILDERS, ) FOR
INC.; and JOHN DOES 1-10, ) RECONSIDERATION OF
) ORDER DATED JUNE
) 19, 1995 DENYING
) PLAINTIFF’S MOTION
) FOR SUMMARY
) JUDGMENT AND
) GRANTING
) DEFENDANT’S CROSS
) MOTION FOR
) SUMMARY JUDGMENT
)
) (Filed Jul. 20, 1995)
Defendants.
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION OF ORDER DATED JUNE 19, 1995
DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS
MOTION FOR SUMMARY JUDGMENT
The court has reviewed Plaintiff's motion for recon-
sideration and Defendant’s opposition thereto, together
with the accompanying exhibits. The court finds that
Plaintiff has demonstrated neither (1) the discovery of
new material facts not previously available, (2) an inter-
vening change in law, nor (3) manifest error of law or fact
in the court’s June 19, 1995 order. Accordingly, Plaintiff’s
motion for reconsideration is DENIED.
Ow
N
a)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 20, 1995.
/s/ Samuel P. King
SAMUEL P. KING
United States District Judge
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.