SUPREME COURT OF THE UNITED STATES

No. 95-1621

HARBOR TUG AND BARGE COMPANY, PETITIONER v. JOHN PAPAI et ux.

on writ of certiorari to the united states court of appeals for the ninth circuit

[May 12, 1997]

Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.

During the two year period immediately before his injury, respondent Papai worked as a maintenance man and a deckhand for various employers who hired out of the Inland Boatman's Union hiring hall. He testified that about 70 percent of his work was as a deckhand, and that "most of that work [was] done while the boats were moving on the water." App. 34. If all of that deckhand work had been performed for petitioner, there would be no doubt about Papai's status as a seaman.

Petitioner, however, did not maintain a permanent crew on any of its vessels. 67 F. 3d 203, 204 (CA9 1995). Instead, like other tugboat operators in the San Francisco Bay area, it obtained its deckhands on a job-by-job basis through the union hiring hall. Under these circumstances, I believe the Court of Appeals correctly concluded that Papai's status as a seaman should be tested by the character of his work for the group of vessel owners that used the same union agent to make selections from the same pool of employees.

In Chandris, Inc. v. Latsis, 515 U. S. 347 (1995), the Court rejected a "voyage test" of seaman status, concluding that an employee who was injured while performing his duties on a vessel on the high seas was not necessarily a Jones Act seaman. Id., at 358–364. The Court instead adopted a status-based inquiry that looked at the nature and duration of the employee's relationship to a vessel—or an identifiable group of vessels—in navigation to determine whether that employee received Jones Act coverage. Id., at 370–371. Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the preceding two years was primarily seaman's work. I believe this conclusion is unsupported by either the reasoning or the language in the Chandris opinion.

Chandris' status-based test requires a maritime worker to have a relationship that is substantial in duration and nature with a vessel, or an identifiable group of vessels, in navigation. See id., at 376. Nothing in the Court's holding there intimated that the "identifiable group of vessels" need all be owned by the same person. Particularly in a labor market designed to allow employers to rely on temporary workers for a range of jobs, there is "no reason to limit the seaman status inquiry . . . exclusively to an examination of the overall course of a worker's service with a particular employer." Id., at 371–372. As the Court of Appeals observed in this case, "[i]f the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system." 67 F. 3d, at 206.

The unfairness created by the Court's rule is evident. Let us assume that none of the tugboat operators in the Bay area have permanent crews and that all of them obtain their deckhands on a more or less random basis through the same hiring hall. Further, assume that about 70 percent of the work performed by the employees thus obtained is seaman's work, while the remainder is shore-based maintenance work. A typical employee working for a typical employer in that pool would have the status of a seaman, and both the employees and the employers would be aware of this reality about their work environment. But under the Court's reasoning, even if over 70 percent of his randomly selected assignments during a 2-year period were seaman assignments, an injured worker would not be a seaman for Jones Act purposes if he happened to receive only a few assignments with the owner of the particular boat on which he was injured and those assignments were not seaman's work.

The majority tries to justify this conclusion with the argument that a rule acknowledging an employee's status as a seaman based on the work he does for a number of employers who hire out of the same hiring hall would create uncertainties for employers. Ante, at 9. The Court's concern is that an employer might not realize that an employee he had selected to chip paint on a docked boat had spent most of the past year as a deckhand on a neighboring vessel. This fear is exaggerated, since an employer who hires its workers out of a union hiring hall should be presumed to be familiar with the general character of their work. Moreover, surely the unfairness created by the majority's rule outweighs this concern.

Of course, in order to hold a particular employer liable, an employment relationship must have existed between the worker and the particular vessel owner at the time of the injury. Chandris teaches us, however, that the specific activity being performed at the time of the injury is not sufficient to establish the employee's status under the Jones Act. Rather, we must determine whether an employee has seaman status by looking at his work history. The character of that history in the market from which a vessel owner obtains all of its crews seems to me just as relevant as the assignments to the particular operator for whom work was being performed when the injury occurred.

Accordingly, I would affirm the judgment of the Court of Appeals.