A number of recent cases crossing the desk at MEC have involved the issue of whether or
not an injured person is a seaman. Experts are sometimes retained to help an attorney
answer this question. Care must be exercised that expert's testimony does not invade the
province of the court in addressing a legal question. Judges will not permit affidavits
and testimony in which the expert states that a barge is a vessel and thus people working
on it are seamen.
Testimony might be permitted with regard to the traditional functions of the "vessel" so that the court can decide the issue without the expert directly stating that it is or is not.
A number of recent cases have addressed the issue. While the above admonitions apply, the expert and the attorney should be aware of the present status of judicial holdings on the issue.
The below case synopses are taken from the ATLA Admiralty Law Section Newsletter published in early 1993.
Gremmillion v Gulf Coast Catering Company, 904 F.2d 290 (5th Circuit 1990):
The existence of a vessel is a fundamental prerequisite to establishing a claim under the Jones Act. Despite this, the term "vessel" enjoys no precise definition.
The Fifth Circuit was called upon to determine whether a floating structure was a vessel. The structure was a quarterboat barge chartered to an oil company for the purpose of housing offshore workers. The barge had been towed to its location about six months prior to the accident, partially sunk into a shoreside mudbank, and affixed by lines to a dock. The barge had no self propulsion, no radar and aside from navigational lights, no navigational apparatus. It was not registered with the Coast Guard. It was used exclusively as a stationary housing facility in shallow coastal and inland waters. While the plaintiff was assigned to this barge, it was never refloated for transportation to a new sight, although it was moved off station a few months after his injury.
The plaintiff argued that the barge was capable of being moved easily, was involved in commerce and possessed other attributes of Jones Act vessels, such as navigational lights, life preserves and sleeping quarters. They argued that any distinction between this and more conventional vessels could be explained by this particular vessel's special nature, reminiscent of the mobile drilling barges which qualify for vessel status.
The defendants argued that the structure in question lacked most of the attributes associated with conventional vessels, such as engines, bilge pumps, navigational equipment, and the Coast Guard registration. They argued that the quarterboat did not qualify as a "special use" vessel since it could not be compared fairly to deep-sea mobile platforms that enjoy vessel status.
The defendants notes that the structure in question was not designed for the purpose of navigation and commerce; rather its primary function was to provide housing in the inland waterways, and its transportability was purely incidental, not necessary to its commercial mission.
The court began its analysis by noting that where the inquiry concerns unconventional craft, the focus is upon the purpose for which the craft is constructed and the business in which it is engaged. The case law favors conferring status upon craft whose primary mission is the transportation of cargo, equipment or passengers over navigational waters. In line with this approach, the court looks to see whether a given structure maintains or possesses: 1) aids; 2) lifeboats and other life-saving equipment; 3) a raked bow; 4) bilge pumps; 5) crew quarters and 6) registration with the Coast Guard as a vessel. Furthermore, the intention of the owner to move the structure on a regular basis, the ability of the submerged structure to be refloated and the length of time that the structure has remained stationary are also relevant to the inquiry.
Exotic craft, according to the court, may qualify as vessel if frequently navigated or exposed to the perils associated with maritime services or if injury occurs during ocean transport. In fact, the fifth Circuit has held that a structure whose purpose or primary business is not navigation or commerce may nonetheless satisfy the Jones Act vessel requirement if, at the time of the worker's injury, the structure was actually engaged in navigation.
However, certain dry docks and floating work platforms do not qualify as Jones Act vessels. Generally, these type of non-vessels have three common attributes : 1) the structure is constructed to be used primarily as a work platform; 2) the structure is moored or otherwise secured at the time of the accident; and 3) although the platform is capable of movement and is sometimes moved across navigable waters in the course of normal operations, any transportation is merely incidental to the platform's primary purpose.
Using this analysis, the court concluded that the quarterboat barge shared sufficient traits with the family of fixed platforms and floating work barges previously denied vessel status to qualify as a non vessel under the Jones Act. The court conceded that the structure was easily transportable; nevertheless, according to the court, the significance of its transportation function was purely incidental to its primary mission of providing living facilities in relatively shallow waters. The court found that the structure did not transport cargo or passengers, was not designed for navigation, was not so engaged at the time of the injury and that there was no evidence to suggest that it ever provided housing on the open sea unattached. The court also noted that the structure's motive power was provided externally from towboats, as it had no engines, rudders or navigational equipment except lights.
It is interesting to note that the structure in question satisfied seven of the nine factors for vessel status set forth in Johnson v Odeco Oil and Gas Company, 864 F. 2nd 40, 43 (5th cir. 1989) to wit-it had navigational lights, a raked bow, life-saving equipment, crew quarters, the owner's intention to move it on recurring basis, ability to be refloated after years of deterioration and a relatively short time remaining stationary. It lacked only two attributes, i.e., bilge pumps and Coast Guard registration.
Orgeron v. Avondale Shipyard's Inc. , 561 So2nd 38 (La. 1990):
In this case , the Louisiana Supreme Court, speaking through Justice Watson, held that certain work barges were vessels within the meaning of the LHWCA.
The terms " vessel" under the Jones Act cannot be substituted and is not the same as the term "vessel" under section 905 (b) of the LHWCA. The United States Supreme Court has held that in construing the LHWCA's terms, other status having other purposes are of little aid. South Chicago Dock Company v Bassett, 309 U. S. 251 (1940).
Under the general maritime law, a vessel is every description of water craft or other artificial contrivance used or capable of being used or capable of being used as a means of transportation on water (1 U S C Section 3). The courts have applied this test to define vessel in section 905 (b). In contrast, cases decided under the Jones Act have looked to a different test. Additionally, the question of whether a vessel is also "in navigation" under the Jones Act is a different issue from the question of "vessel" status under section 905 (b).
Our Fifth Circuit jurisprudence generally requires that to obtain vessel status under 905 (b), the Executive Jet requirements for admiralty jurisdiction are necessary, to wit-a maritime situs and a significant relationship to traditional maritime activity. Some cases seem to suggest that a structure be sufficiently mobile to serve some transportation function for vessel status under section 905 (b).
The barges in question were being used as work platforms, were capable of transportation on water and were floating on navigable water. Accordingly, the court found that the situs test was met because the plaintiff's accident occurred both on and in navigable water. The nexus test was met because the barges were used for ship repair, a traditional maritime activity classified as maritime employment by the LHWCA. The barges, according to the courts, had vessel status because they were used for transportation on navigable waters. The barges were not stationary and were frequently moved. In fact, the injury occurred when the barges drifted apart. Additionally, the barges were designed and used for transportation as well as platforms.
The Supreme Court held that the trial court erred in concluding that the barges were not vessels. They were clearly capable of transportation and moved periodically on navigable water. As such, the Supreme Court concluded that they performed a transportation function.
Clark v Moran Towing & transp. Co, 738 F.Supp 1023 (E.D. La. 1990)
The Fifth Circuit addressed the question of whether a certain structure qualified as a vessel for purpose of the Jones Act. Under scrutiny for vessel status was a four-barge structure that had been assembled for use in laying flow lines in building a platform. The structure consists of three general purpose barges and one larger spud barge. The four-barge structure, once moored and in place, according to the court, would only be moved slightly to facilitate the pile driving operation. The transportation function of this structure was merely incidental to its primary purpose as a work structure. Accordingly, the court concluded that the structure was not a vessel. The court distinguished the structure at bar from other similar vessels used offshore that also carry large construction cranes. Apparently, the focus will be on whether the structure provides a transportation function, and more particularly, whether this is the primary purpose of the vessel or whether it is merely incidental to the overall work being conducted.
Sharp v. Johnson Bros. Corp. , 917 F. 2rd 885 (5th Cir. 1990) :
The complainant was a welder and a pile driver who spent 80 to 95% of his time working aboard a fleet of cargo and spud barges on a pile driving project in Lake Pontchartrain. The fleet consisted of two spud barges with raked bows and two cargo barges with raked bows and stems. The barges were officially registered and equipped with bilge pumps and navigational lights. The barges were used to transport materials, equipment and supplies. The barge with the least significant transportation function was used to transport a pile driving crane to and around the job sites and away from the job sites on several occasions because of threats of hurricanes. Sharp was injured when the crew was transferring material from one of the spud barges to a tug.
The trial court granted the defendants' motion for directed verdict on grounds that the evidence was insufficient to support a finding that Sharp was a seaman because the vessels' use in transportation was incidental to their primary use as work platforms. In addition, the trial court found that Sharp was a longshoreman under Pizzitolo v Electro Coal Transfer, 812 F. 2d 977, (5th Cir. 1987), Cert. denied, 484 U .S 1059, 108 S. Ct. 98 L. Ed. 2d (1988), and therefore, could not bring a Jones Act claim. The Fifth Circuit reversed finding that the features of the barges suggest that they were constructed primarily for transportation across navigable waters. The court went on to hold that the movement of the barges would support a jury finding that the barges' transportation function was more than incidental. The court also held that Sharp should be allowed to present evidence to show how the defendant had used the barges for transportation purposes for a reasonable time after the accident to establish vessel status. Since the jury was entitled to find that all the barges in the fleet were vessels. Sharp did not have to produce evidence from which a jury could conclude on which particular barge he performed substantial work. The court found that the jury was entitled to find that Sharp did a substantial portion of his work aboard a fleet of vessels and that this finding would support a determination that he was a seaman. Finally, the Court noted that because Sharp was not engaged in an occupation enumerated in the LHWCA, the trial court's reliance on Pizzitolo, was misplaced.
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