On February 22, 2005, the U.S. Supreme Court handed down its long-awaited
ruling in Stewart v Dutra Construction Company,
2005 U.S. LEXIS 1397; 2005 WL 405475 (U.S.).
In an 8-0 decision1, which may have sweeping implications for seamen, longshore workers, their employers, and not least of all their insurers, the Supreme Court held that 1 U.S.C. § 3 provides the dispositive definition of a "vessel" for the purposes of determining whether a watercraft is a "vessel" within the purview of the Jones Act and the Longshore Harbor Workers' Compensation Act (LHWCA).
Willard Stewart was hired by Dutra Construction Company in 1991 as a marine
engineer. His job was to maintain the mechanical systems of the Super Scoop, a clamshell bucket dredge being
used to dredge the bottom of the Boston Harbor for the city's "Big Dig" construction
project. As part of the digging operations, "Scow 4" was used in conjunction
with the Super Scoop. To dispose of the
dredging material, the scow would be brought alongside the Super Scoop, filled, and then it would depart
for the open sea to discard the dredging material.
Although Stewart spent the majority of his time tending to the mechanical
systems aboard the Super Scoop, he occasionally
was called on to perform maintenance tasks aboard the scow. In 1993 the scow's
engine malfunctioned. Dutra hired an independent contractor to repair the scow's
engine, and it also arranged for several of its employees, including Stewart,
to assist with the repairs.
The scow's engine was accessed through a hatch. Upon examination, it was
determined that the malfunctioning engine would need to be replaced. However,
to replace the old engine, it was necessary to remove a protective railing guarding
the hatchway to the engine. On the eventful date, Stewart was assisting one
of the independent contractors working in the engine room by feeding wires through
the hatch while precariously perched above. While Stewart was in this position,
the Super Scoop's crew decided to
move the scow to a new position alongside the dredge. When the scow reached
its new position, it collided with the Super Scoop and Stewart was pitched headlong down to the deck below, sustaining very serious
injuries.
The Dispute
Stewart sued Dutra in the U. S. District Court for the District of Massachusetts
asserting negligence under the Jones Act and workers compensation under the
LHWCA, hoping that one of the two mutually exclusive statutes would cover him.
That's where the difficulty began.
Dutra moved for partial summary judgment on the Jones Act claim, arguing
that the Super Scoop, as a matter of law,
was not a vessel in navigation, but rather a work platform. Dutra argued that
it stood to reason, therefore, that Stewart could not be a seaman; that he was
a longshoreman, and Dutra was not liable to him under the Jones Act. Stewart
opposed the motion, maintaining that the Super
Scoop was a Jones Act "vessel in navigation" and that he was a "seaman"
within the meaning of the Jones Act.
The district court ruled in Dutra's favor. Stewart filed an interlocutory
appeal.
The Appeal
The First Circuit affirmed the decision [230 F3d 461 (1st Cir 2000)], relying
on the court's 1992 case DiGiovanni v Traylor Brothers,
Inc., 959 F2d 1119 (1st Cir 1992). In DiGiovanni,
the First Circuit held that:
if a barge, or other float's purpose or primary business is not navigation
or commerce, then workers assigned thereto for its shore enterprise are
to be considered seamen [for Jones Act purposes] only when it is in actual
navigation or transit. [Id. at 1123,
quoting Bernard v Binnings Constr. Co., 741
F2d 824, 829 (5th Cir 1984).]
Finding that it, too, was bound, as was the district court, by the First
Circuit's en banc decision in DiGiovanni, the
court reasoned that the Super Scoop's primary
function was construction and that "[a]ny navigation or transportation that
may be required is incidental to this primary function." [230 F3d 461, 468.]
The court also concluded that Stewart's seaman status depended on the movement
of the Super Scoop, not the happenstance
movement of an appurtenant scow. But even so, because the Super Scoop was viewed by the court to be
a floating stage used primarily as an extension of the land for the purpose
of securing heavy equipment to construct a passage across the sea, it was not
a vessel in navigation within the jurisprudence of the Jones Act.
On remand, the district court granted Dutra's summary judgment motion on
Stewart's alternative claim that Dutra was liable for negligence as an owner
of a "vessel" under the LHWCA. Another appeal was taken and, once again, the
First Circuit affirmed. [343 F3d 10 (1st Cir 2003).] It noted that Dutra had
conceded that the Super Scoop was a "vessel"
for the purposes of the LHWCA, explaining that "the LHWCA's definition of 'vessel'
is significantly more inclusive than that used for evaluating seaman status
under the Jones Act. [343 F3d 10, 13 (1st Cir 2003).] Nonetheless, the First
Circuit agreed with the district court's conclusion that Dutra's negligence
was committed in its capacity as an employer rather than as an owner of a "vessel"
under the LHWCA.
To clarify the confusion, the Supreme Court granted certiorari to resolve
the conflict over how to determine whether a watercraft is a "vessel" for the
purposes of the LHWCA and to sharpen the jurisprudence surrounding the Jones
Act as it pertains to vessels and longshoremen, settling questions that have
been raised in no fewer than eight federal circuits.
Unsurprisingly, Stewart was keen to have the Supreme Court rule that the Super Scoop was a vessel within the meaning
of the Jones Act. The Jones Act of 1920 protects "seamen" who work aboard "vessels
in navigation." Generally speaking, it does not protect "longshoremen" who work
on stationary sites like piers, oil platforms, and arguably dredges like the Super Scoop. The Jones Act provides in pertinent
part:
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.... [46 U.S. C. app. § 688(a).]
However, therein lays the rub: Although a Jones Act plaintiff must first
be determined to be a seaman; the Jones Act does not define the critical term
"seaman."3 Moreover, the courts, in attempting to
define "seaman," have said that a Jones Act plaintiff must have some connection
to a "vessel in navigation" to establish seaman status.4 However, the Jones Act does not define "vessel"5 either.
Jones Act versus LHWCA
Before further discussing the Supreme Court's decision in the instant matter,
we must first touch upon why a plaintiff would want his claims to fall within
the Jones Act, as opposed to the LHWCA. The answer is fairly straightforward.
The Jones Act affords a plaintiff at least four important advantages that a
plaintiff whose only remedy is the LHWCA does not:
-
The Jones Act provides a remedy to seamen for injuries incurred in the
course of their employment aboard a "vessel" due to the negligence of their
employers. The burden for proving negligence is extremely relaxed and has
often been described as "featherweight."6
-
Jones Act seaman status also triggers the availability of the general
maritime law remedies of unseaworthiness,7 for
which liability is strict and non-delegable.
-
Although not specifically tied to the Jones Act per se, a Jones Act seaman
is eligible for maintenance and cure in an obligatory amount which is not
fixed and one which can, in theory, continue for the lifetime of the injured
seaman.
-
Claims falling within the Jones Act afford a plaintiff the right to a
jury trial,8 which in turn opens the door to
potentially large jury verdicts for damages.9
On the other hand, the LHWCA is a quid pro quo workers compensation statute. That is, the LHWCA exchanges no-fault liability
for limited compensation benefits and immunity from tort liability.10 Furthermore, unlike the Jones Act, the LHWCA is a scheme managed and arbitered
by the government. Workers seeking compensation under the LHWCA must file a
claim with an Office of Workers' Compensation Programs district director. If
the district director cannot resolve the claim informally, it is referred to
an administrative law judge authorized to issue a compensation order. The judge's
decision is reviewable by the Benefits Review Board (Board), whose members are
appointed by the Secretary of Labor. The Board's decision is, in turn, appealable
to a U.S. court of appeals, at the instance of "any person adversely affected
or aggrieved by" the Board's order.
Clearly, then, an employer, not to mention its insurer, would much prefer
the certainty of the LHWCA's compensation scheme as compared to relative uncertainty
of Jones Act damages for featherweight negligence, strict and non-delegable
liability for unseaworthiness, potentially unlimited maintenance and cure, and
the vagaries of trial by jury.
Is a Dredge a Vessel?
Returning now to the Supreme Court's decision in the instant matter, the
Supreme Court held that the Super Scoop was a vessel. Noting that "[j]ust as Congress did not define the term "seaman"
in the Jones Act, it did not define the term "vessel" in the LHWCA …" [2005
U.S. LEXIS 1397 at *15; 2005 WL 405475 at *6.] the Court employed the term "vessel"
as used in 1 U.S.C. § 3, which defines "vessel" as follows:
The word "vessel" includes every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of transportation
on water.
After a review of several cases wherein the Court treated dredges as vessels
both prior to and after the 1920s passage of the Jones Act and the LHWCA,11 the Court stated:
Applying § 3 brings within the purview of the Jones Act the sorts of
watercraft considered vessels at the time Congress passed the Act. By including
special-purpose vessels like dredges, § 3 sweeps broadly, but the other
prerequisites to qualifying for seaman status under the Jones Act provide
some limits, notwithstanding § 3's breadth. A maritime worker seeking Jones
Act seaman status must also prove that his duties contributed to the vessel's
function or mission, and that his connection to the vessel was substantial
both in nature and duration. Thus, even though the Super Scoop is a "vessel," workers injured
aboard the Super Scoop are eligible
for seaman status only if they are "masters or members" of its crew. [2005
U.S. LEXIS 1397 at *25; 2005 WL 405475 at *9.]
Thus, the Court concluded, the First Circuit erred in its determination that
the Super Scoop was not a vessel because
it was not in actual transit at the time of Stewart's injury. Moreover, the
Court rejected the First Circuit's "snapshot" test, whereby it looked to whether
the Super Scoop was in motion when Stewart
sustained his injuries. Stating that this approach was rejected in Chandris Inc. v Latis, 515 U.S. 347, 363 (1997),
the Court reiterated that "Section 3 requires only that a watercraft be ‘used,
or capable of being used, as a means of transportation on water.' It does not require that a watercraft be used primarily
for that purpose." [2005 U.S. LEXIS 1397 at *26; 2005 WL 405475 at *9
(emphasis added).]
The Court then followed up with this rather startling statement:
Granted, the Court has sometimes spoken of the requirement that a vessel
be "in navigation," but never to indicate that a structure's locomotion
at any given moment mattered. Rather, the point was that structures may
lose their character as vessels if they have been withdrawn from the water
for extended periods of time. [Id. at
*27; *10.]
To their credit, the Justices did not leave us hanging on the edge of the
proverbial cliff by leaving us to mull over the above quoted passage until they
speak again on the subject. In explaining themselves, the Justices reminded
us that the "in navigation" requirement remains an essential element of the
vessel status of a watercraft. That is,
it is relevant to whether the craft is "used, or capable of being used" for
maritime transportation. However, in the future, some will certainly argue that
such a statement is, at best, vague. Although the Court stated that "[t]he question
still remains in all cases whether the watercraft's use ‘as a means of transportation
on the water' is a practical possibility or merely a theoretical one" [2005
U.S. LEXIS 1397 at *28; 2005 WL 405475 at *10], exactly where the line is to
be drawn between the practical and theoretical remains unknown.
Conclusion
In the final analysis, what is now known is that for purposes of the Jones
Act and the LHWCA, the word "vessel" includes every
description of watercraft or other artificial contrivance used, or capable of being used, as a means of
transportation on water. It would seem that whether or not such a watercraft
is or is not being actually used as a means of transportation on water at the
time of an accident is apparently not paramount. What is important is that the
watercraft is capable of being so used.
There are many confounding aspects to this case; however, they are beyond the
scope of this article.
What is fairly clear, though, is the Supreme Court's holding that the Super Scoop is a vessel is indeed significant,
as it represents a major shift in the law. It now will be quite difficult for
the owners of all sorts of "work platforms" to argue against the Jones Act status
of workers on certain types of barges and other craft that have, in the past,
been considered non-vessels. Most assuredly, this will result in a larger number
of claims being filed under the Jones Act. As the definition of "vessel" broadens,
so too does the number of workers who become entitled to the benefits of being
considered a seaman. While the Supreme Court's decision may not cause a flood
of new Jones Act claims, there may well be a noticeable increase.