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.
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 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."2 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.3 However, the Jones Act does not define "vessel"4 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."5
Jones Act seaman status also triggers the availability of the general maritime law remedies of unseaworthiness,6 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,7 which in turn opens the door to potentially large jury verdicts for damages.8
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.9 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,10 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.
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.
Richard Preston's assistance with preparation of this article is gratefully acknowledged. He is an associate with Meyer Orlando LLC.
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1 Chief Justice William Rehnquist, due to illness during the period of time that the Court deliberated, did not participate in the decision.
2See, e.g., Chandris, Inc. v Latis, 515 U.S. 347, 355 (U.S. 1995) ("seaman" not defined in Jones Act and therefore left to courts exactly which maritime workers are entitled to admiralty's special protection).
3McDermott Internatl., Inc. v Wilander, 498 U.S. 337, 354 (1991).
4See, e.g., Michel v Total Transp., 957 F2d 186, 189 (5th Cir 1992) ("The Jones Act does not define the term 'vessel,' and we have repeatedly held that the term is incapable of precise definition. However, we may rely on the purpose for which the craft was built and the business in which it was engaged to guide our inquiry. Other factors, like the structure's size, its ability to float, its permanent fixation to the shore or the bottom, and its movement or its ability to move across navigable waters are inconclusive. Further, structures whose primary function is non-navigational or non-transportational may still qualify as vessels if the structure was involved in navigation at the time of the injury.") [Emphasis in original.]
5See, e.g., Zapata Haynie Corp. v Arthur, 980 F2d 287, 289 (5th Cir 1992) ("Under the Jones Act, a shipowner must bear the responsibility for any negligence, however slight, that played a part in producing the plaintiffs' injury. The burden of proving causation under the Jones Act is 'very light' or 'featherweight.'").
6 The Jones Act count is often brought with a claim under the general maritime law for unseaworthiness. Since the two claims overlap and since the latter allows recovery independent of negligence, i.e., for injury due to the failure of a vessel or its equipment to be reasonably fit for their intended purpose, the Jones Act count is sometimes rendered less important by the lower threshold for unseaworthiness. Nonetheless, the Jones Act count assumes importance particularly in cases where the injury is due to operational negligence and cannot be traced to some condition of the vessel. It also affords certain procedural advantages that a claim for unseaworthiness alone would lack.
7 A plaintiff can demand a jury trial in a Jones Act case brought in federal court by invoking the court's federal question jurisdiction, an option not available in the rare case in which unseaworthiness is alleged alone. It is hardly remarkable, therefore, that maritime workers have aggressively sought to achieve seaman status whenever possible, contributing thereby to the proliferation of seaman status litigation. A plaintiff cannot claim a jury trial if the Jones Act suit is brought within the federal court's admiralty jurisdiction. However, a plaintiff may claim a jury if the action is filed at law, in federal or state court. In fact, if a plaintiff brings a Jones Act negligence action along with general maritime counts to recover for unseaworthiness and maintenance and cure, he may present all three counts to a jury even if admiralty jurisdiction is the only basis for federal jurisdiction over the general maritime counts. See, e.g., Fitzgerald v. U.S. Lines Co., 374 U.S. 16 (1963).
8 Recoverable damages under the Jones Act include past wage loss and future wage loss or loss of future earning capacity, past and future medical expenses and pain and suffering. In some circumstances pre-judgment interest is available. Generally, loss of society and punitive damages are deemed not recoverable under the Jones Act.
9See, e.g., Taylor v Bunge Corp., 845 F2d 1323, 1326 (5th Cir 1998).
10See, e.g. Ellis v United States, 206 U.S. 246 (1907) (scows and floating dredges vessels within the admiralty jurisdiction of the United States); Norton v Warner Co., 321 U.S. 565 (1944) (barge a vessel within the meaning of the LHWCA, quoting 1 U.S.C. § 3's definition of term "vessel").