The Robinson decision was generally followed in other circuits, and has been
referred
to as the "guiding landmark" decision on seaman status and a
"lighthouse"
for maritime counsel.51
The court, analyzing the Biloxi Belle according to that standard, concluded that "there
can
be little doubt that indefinitely moored, shore-side, floating casinos" are not vessels.118
Therefore, this potential for Jones Act recovery could exist on floating casinos, like the
Casino Queen, that actually cruise upon the water. This could lead to insurance
questions
and increased
This holding could present complications in the future if opportunistic
employers attempt to circumvent Jones Act liability by relying more on union hall hiring rather
than
actual employees. I shall address this issue, together with other questions for the future, in just a
few moments. For now, however, parties must use care to analyze whether or not the injured
worker's substantial employment-related connection was to a group of commonly owned or
controlled vessels. If not, the employees will not qualify as Jones Act seamen under the fleet
doctrine.
1 The views expressed herein are
solely those of the author and should not be interpreted as those of anyone else in the Office of
Administrative Law Judges or the Department of Labor. I would like to thank Attorney Patrick
T. Egan, my law clerk, for his assistance in the research and preparation of this paper.
2Miles v. Apex Marine
Corp., 498 U.S. 19, 27 (1990).
3See Southern Pacific Co. v.
Jensen, 244 U.S. 205 (1927).
4 The origins of this saying are
from Robert Burn's poem "To A Mouse" which stated:
the best laid schemes o' mice an' men Gang, aft agley."
5I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J. concurring).
6See Davis v. Department of
Labor, 317 U.S. 239, 253, 256 (1942) (utilizing both terms).
7Johnson v. John F. Beasley
Const. Co., 742 F.2d 1054, 1060 (7th Cir. 1984), cert. denied, 469 U.S. 1211 (1985).
8Chandris, Inc. v. Latsis,
515 U.S. 347, 356 (1995) (quoting Brown v. ITT Rayonier, Inc., 497 F.2d 234, 236 (5th
Cir. 1974)).
9 John R. Hillsman, The
Jones and Longshore Acts: There Are Many Doors to the Kingdom of Heaven, 2
Longshore Newsletter 18, 18 (1984).
10 B. James Finnegan, The
Jones and Longshore Acts: It's a Rainy Day in Heaven, 2 Longshore Newsletter 35, 41
(1984).
11Harbor Tug & Barge
Co. v. Papai, 117 S. Ct. 1535 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347 (1995);
Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott Int'l, Inc. v.
Wilander, 498 U.S. 337 (1991).
12 Chandris, Inc. v.
Latsis, 515 U.S. 347, 358 (1995).
14 Jones Act, ch. 250, §
33, 41 Stat. 988, 1007 (1920) (current version at 46 U.S.C. § 688); see also
generally Hon. Peter Beer, Keeping Up With the Jones Act, 61 Tul. L. Rev. 379
(1986) (providing a detailed history of the Jones Act).
17Cook v. American S.S.
Co., 53 F.3d 733 (6th Cir. 1995); Trentacosta v. Frontier Pac. Aircraft Indus. Inc.,
813 F.2d 1553 (9th Cir. 1987); Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir. 1986).
18O'Donnell v. Great
Lakes Dredge & Dock Co., 318 U.S. 36, 43 (1943); Panama R. Co. v. Vasquez, 271
U.S. 557, 561 (1926).
19Engel v. Davenport,
271 U.S. 33, 37-38 (1926) (noting that non-removal results from the Jones Act's incorporation by
reference of the provisions in the Federal Employer's Liability Act limiting removal).
20See, e.g., Allen v.
Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980).
21 1 Schoenbaum,
Admiralty and Maritime Law (2d ed. 1994), § 6-18, p. 297-303.
22 Jack L. Allbritton,
Seaman Status In Wilander's Wake, 68 Tul. L. Rev. 373, 374 (1994).
25Id. at 339; see
also generally Eric Hanson, Comment, Gautreaux v. Scurlock Marine, Inc.: The Fifth
Circuit Corrects Its "Slight" Mistake and Holds Seamen to a Duty of Ordinary
Prudence for Their Own Safety in Jones Act Negligence Cases, 72 Tul. L. Rev. 1023
(1997).
26 In Wilander, the
Supreme Court indicated that Congress used the term "seaman" as a "maritime
term of art" having the meaning ascribed to it by the pre-Jones Act jurisprudence.
McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 342 (1991).
33See, e.g.,
Harbor Tug & Barge Co. v. Papai, 117 S. Ct 1535, 1539 (1997); Chandris, Inc. v.
Latsis, 515 U.S. 347, 355 (1995); McDermott Int'l, Inc. v. Wilander, 498 U.S. 337,
353 (1991). Two commentators have noted that "[i]ronically, it was through the LHWCA
that Congress defined the term seaman, excluding from its coverage a master or member of the
crew of any vessel.' As a result of this exclusion in the LHWCA, many of the early cases
attempting to define a Jones Act seaman were in fact LHWCA cases." Jack L. Allbritton
& David W. Robertson, Seaman Status after Chandris, Inc. v. Latsis, 8 U.S.F. Mar. L.J.
29, 33 (1995) (citation omitted).
34See Harbor Tug &
Barge Co. v. Papai, 117 S. Ct. 1535, 1538 (1997).
35Chandris, Inc. v.
Latsis, 515 U.S. 347, 367-72 (1995); McDermott Int'l, Inc. v. Wilander, 498 U.S.
337, 355 (1991).
36Chandris, Inc. v.
Latsis, 515 U.S. 347, 367-72 (1995); McDermott Int'l, Inc. v. Wilander, 498 U.S.
337, 355 (1991).
38Chandris, Inc. v.
Latsis, 515 U.S. 347, 368 (1995).
39Cabral v. Healy Tibbits
Builders, 118 F.3d 1363, 1364 (9th Cir.), amended and superceded on denial of reh'g
by, 128 F.3d 1289 (9th Cir. 1997).
40McDermott Int'l, Inc. v.
Wilander, 498 U.S. 337, 356 (1991).
41 This has been described as
follows: "[T]he persons engaged on board . . . must have been possessed of some skill in
navigation. They must have been able to hand, reef and steer,' the ordinary test of
seamanship." The Canton, 5 F. Cas. 29, 30 (No. 2,388) (D. Mass. 1858).
[W]e hold that in these equivocal situations there is an evidentiary
basis for submitting to the jury the question whether the person was a
member of the crew of a vessel at the time of injury: (1) the person injured
had a more or less permanent connection with a vessel in navigation, and
(2) the person injured made a significant contribution to the maintenance,
operation, or welfare of the transportation function of the vessel.
56See, e.g., Boy
Scouts of America v. Graham, 86 F.3d 86, 8641 (9th Cir. 1996); Fisher v. Nichols,
81 F.3d 319 (2d Cir. 1996); Johnson v. Continental Grain Co., 58 F.3d 1232 (8th Cir.
1995).
57See McDermott Int'l,
Inc. v. Wilander, 498 U.S. 337, 345-46 (1991) (discussing historical development of the case
law).
58Harbor Tug & Barge
Co. v. Papai, 117 S. Ct. 1535, 1540 (1997).
59SeeFisher v.
Nichols, 81 F.3d 319 (2d Cir. 1996); Coats v. Penrod Drilling Corp., 61 F.3d 1113
(5th Cir. 1995) (en banc).
60Harbor Tug & Barge
Co. v. Papai, 117 S. Ct. 1535, 1540 (1997).
66Harbor Tug & Barge,
Co. v. Papai, 67 F.3d 203 (9th Cir. 1995), rev'd, 117 S. Ct. 1535 (1997).
67Id. at 1541. In a
related matter, the Ninth Circuit has recently held, in an unpublished opinion, that an employee
who had only spent one week working for the employer could qualify as a seaman, noting that
the plaintiff "spent all of his time during that week at sea, participating in maritime
activities for approximately fourteen hours per day." Perez v. Keystone Shipping
Co. 131 F.3d 147 (Table), No. 96-55994, 1997 WL 753412 (9th Cir. Nov. 28, 1997)
(unpublished disposition).
68Cabral v. Healy Tibbits
Builders, Inc., 128 F.3d 1289, 1293 (9th Cir. 1997) (citing Harbor Tug & Barge Co. v.
Papai, 117 S. Ct. 1535, 1540 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 368
(1995)).
74SeeViator v.
Gordon's Trucking Co., 875 F. Supp. 369, 373 (D.C. La. 1995) (holding that a barge pilot
who spent one-fifth to one-quarter of his time piloting a barge was eligible for Jones Act
"seaman" status based upon a fact-specific examination).
78 33 U.S.C. § 902(21).
I pause to note that courts in the Fifth Circuit have consistently held that the term
"charter" as used is a misprint of "charterer." See Lewis v. Keyes 303
Inc., 834 F. Supp. 191 (S.D. Tex. 1993).
83Garret v. Dean Shank
Drilling Co., 799 F.2d 1007, 1009 (5th Cir. 1986); see also Williams v. Avondale
Shipyards, Inc., 452 F.2d 955, 958 (5th Cir. 1971).
84Garrett v. Dean Shank
Drilling Co., 799 F.2d 1007, 1009 (5th Cir. 1986); Williams v. Avondale Shipyards,
Inc., 452 F.2d 955, 958 (5th Cir. 1971).
89See Tonnesen v. Yonkers
Contracting Co., 82 F.3d 30 (2d Cir. 1996); Digiovanni v. Traylor Bros., Inc., 959
F.2d 1119 (1st Cir.), cert. denied, 506 U.S. 827 (1992).
90Manuel v. P.A.W.
Drilling & Well Serv., Inc., -- F.3d --, No. 97-30008, 1998 WL 58992 (5th Cir. Mar. 2,
1998).
The court stated:
In evaluating whether a structure is a vessel, we begin by examining
"the purpose for which the craft is constructed and the business in
which it is engaged." . . . In applying this test, two divergent lines of
cases have emerged. In one line of cases, we have concluded that special
purpose structures such as jack-up rigs, mobile, submersible drilling barges,
derrick barges, spud barges, and others are vessels as a matter of law, even
though they also served, in part, as work platforms. Conversely, in the
second line of cases, we have held that a variety of structures utilized
predominately as work platforms are not vessels.
Id. at *3 (internal citations and footnotes omitted).
94Id. at 36. A
somewhat similar test was articulated in Bernard v. Binnings Const. Co., Inc., 741 F.2d
824 (5th Cir. 1984) where the court developed a list of objective features which would suggest
that a structure's intended purpose is transportation across navigable waters. "These
features include: (1) navigational aids; (2) raked bow; (3) lifeboats and other lifesaving
equipment; (4) bilge pumps; (5) crew quarters; and (6) registration as a vessel with the Coast
Guard." Bernard v. Binnings Const. Co., Inc., 741 F.2d 824, 832 n. 25 (5th Cir.
1984).
The Longshore Bench Book provides similar guidance:
Floating work platforms which were determined not
to be vessels had at least some of the following criteria in common:
(1) The structures were constructed/re-constructed for use primarily
as work platforms;
(2) The structures were moored/secured when the injury occurred;
(3) Although "capable" of movement and sometimes
moved, the transportation function was incidental to the primary purpose of
serving as a work platform;
(4) The structure generally had no navigational lights and/or
navigational equipment;
(5) The structures had no means of self-propulsion;
(6) The structures were not registered with the Coast Guard;
(7) The structures did not have crew quarters/a galley.
Longshore Bench Book, 1-12 to 1-13 (emphasis in original) (citing Bernard v. Binnings
Constr. Co., 741 F.2d 824 (5th Cir. 1984); Sharp v. Wausau Ins. Cos., 917 F.2d 885
(5th Cir. 1990), amended sub. nom. Sharp v. Johnson Bros. Corp., 923 F.2d 46 (5th Cir.
1991); Ellender v. Kiva Constr. & Eng'g, 909 F.2d 803 (5th Cir. 1990); Menard v.
Brownie Drilling Co., 1991 U.S. Dist. LEXIS 13531 (E.D. La. 1991)).
100 In reaching this
decision, the First Circuit claimed to rely upon Fifth Circuit precedent. The following Fifth
Circuit cases held as a matter of law that a work barge was not a vessel in navigation at the time
of the injury. See, e.g., Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir. 1995);
Ellender v. Kiva Constr. & Eng'g, Inc., 909 F.2d 803 (5th Cir. 1990); Gremillion v.
Gulf Coast Catering Co., 904 F.2d 290 (5th Cir. 1990). The dissenting Judge in
DiGiovanni expressly questioned whether the majority was applying the Fifth Circuit
precedent correctly. See DiGiovanni v. Taylor Bros., Inc., 959 F.2d 1119, 1124 n.9 (1st
Cir. 1992) (J. Torruella, dissenting) (commenting that the majority misread Fifth Circuit
precedent), cert. denied, 506 U.S. 827 (1992).
101Hatch v. Durocher
Dock & Dredge, Inc., 820 F. Supp. 314, 316 (E.D. Mich 1993), aff'd, 33 F.3d 545
(6th Cir. 1994).
102The Queen
(visited January 13, 1998) (http://www.casinoqueen.com/queen.htm).
104 In Pavone v.
Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995), a seminal case
dealing
with floating casino status, the Fifth Circuit postulated:
With the recent and presumably continuing proliferation of such
gaming' establishments in Louisiana and Mississippi, and the question of
legalized casino gambling still being openly discussed and debated in
Texas, we speculate that the cases we consider today are merely the
vanguard of a host of future legal efforts to advance as maritime causes of
action all sorts of personal injury and property damage claims arising from
occurrences on or near moored floating casinos and similar establishments.
111Id. I pause to
note that United States Coast Guard documentation and filings are not conclusive as to the issue
of what constitutes a "vessel." Daniel v. Ergon, Inc., 892 F.2d 403, 407 n.9
(5th Cir. 1990).
116Gremillion v. Gulf
Coast Catering Co., 904 F.2d 290, 293-94 (5th Cir. 1990) (announcing three-prong
definition
of non-vessel); Ducrepont v. Baton Rougue Enter., Inc., 877 F.2d 393 (5th Cir. 1989)
(holding that a structure could meet the work-platform definition under Bernard even if
it had not originally been constructed for that purpose); Bernard v. Binnings Constr. Co.,
741 F.2d 824 (5th Cir. 1984) (holding that dry docks and analogous structures with the primary
purpose of providing a work platform are not Jones Act vessels, even if the structures are afloat).
119See Hayford v.
Doussony, 32 F.2d 605 (5th Cir. 1929) (holding a gunboat converted and refitted as an
amusement and dance barge is not a vessel, despite the fact that it could be moved and would be
moored when the Mississippi River was high). The Hayford court commented that the
ship "was not used, or intended to be used, to carry freight or passengers from one place to
another, was not an instrument of navigation or commerce, and performed no function that might
not have been performed as well by a floating stage or platform permanently attached to
land." Id. at 605. See also Evansville & Bowling Green Packet Co. v. Chero
Cola Bottling Co., 271 U.S. 19, 22 (1926) (holding wharf boat built primarily as an office,
warehouse and wharf, which could be moved, not a vessel); Katheriner v. UNISEA, Inc.,
975 F.2d 657 (9th Cir. 1992) (holding ship converted into permanently moored floating fish
processing plant not a vessel); Ducrepont v. Baton Rougue Marine Ent., Inc., 877 F.2d
393 (5th Cir. 1989) (holding barge converted into a stationary work platform moored firmly to
shore but adjusted to respond to tides held not to be a vessel); TheHendrick
Hudson, 11 Fed. Cases 1085 (S.D.N.Y. 1869) (holding dismantled steamboat refitted as
saloon and hotel not a vessel).
120See McAdow v.
Promus Cos., 926 F. Supp. 93, 96 (W.D. La. 1996) (noting "[t]here can be no
principled basis to distinguish between a solidly moored barge casino and a solidly moored
paddle wheel casino"); Chase v. Louisiana Riverboat Gaming Partnership, No.
30368-CW, 1998 WL 70925 (L.A. App. 2 Cir. Feb. 25, 1998) (holding the Lady of the Isle
Casino is not a Jones Act vessel); King v. Grand Casinos of Miss., Inc., 697 So.2d 439
(1997) (holding shore-side casino does not constitute a vessel, despite the fact that it was
constructed partially out of navigable barges); Matter of Treasure Bay Corp., 205 B.R.
490, 495-96 (S.D. Miss. 1997) (applying three-prong non-vessel status test). The
Pavone decision was also consistent with the preceding case of In re Biloxi Casino
Belle Inc., 176 B.R. 427 (S.D. Miss. 1995) (holding that a permanently moored floating
casino did not constituted a vessel for the purposes of federal admiralty and maritime matters and
the Ship Mortgage Act).
122 Gary Taylor, Murky
Liability Status Sets Waterfront Gambling Adrift, Nat'l L. J., Nov. 21, 1994 at B1 (noting
actual floating casinos raise new insurance and litigation issues).
123 Chandris, Inc. v.
Latsis, 515 U.S. 347, 368-72 (1995) (approving of "fleet doctrine" in passing);
Johnson v. Continental Grain Co., 58 F.3d 1232, 1236 (8th Cir. 1995); Gizoni v.
Southwest Marine, 56 F.3d 1138, 1149 (9th Cir.), cert. denied, 116 S. Ct. 381
(1995); Reeves v. Mobile Dredge & Pumping Co., 26 F.3d 1247, 1256 (3d Cir. 1994);
Braniff v. Jackson Ave.-Gretna Ferry, Inc., 280 F.2d 523, 528 (5th Cir. 1960), reh'g
denied, 289 F.2d 939 (5th Cir. 1961); Vowell v. G & H Towing Co., 870 F. Supp.
162, 164-65 (S.D. Tex. 1994).
127Langston v.
Schlumberger Offshore Servs., 809 F.2d 1192 (5th Cir. 1987) (holding that employee who
worked on fifteen different vessels owned by ten different owners did not constitute working on
a fleet); Jones v. Mississippi River Grain Elevator, 703 F.2d 108, 109 (5th Cir.) (stating
fleet doctrine inapplicable where claimant "was assigned on a random basis to perform
uploading-preparation duties on a considerable number of variously owned vessels of others than
his employer"), cert. denied, 464 U.S. 856 (1983); Guidry v. Continental Oil
Co., 640 F.2d 523, 529 (5th Cir.), cert. denied, 454 U.S. 818 (1981).
130Barrett v. Chervon,
U.S.A., 781 F.2d 1067, 1074 (5th Cir. 1986) (en banc).
131Chandris, Inc. v.
Latsis, 515 U.S. 347, 366 (1995).
132Harbor Tug and
Barge Co. v. Papai, 117 S. Ct. 1535, 1542-43 (1997).
133Id. at 1541
(quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 363 (1995)).
134Harbor Tug & Barge
Co. v. Papai, 117 S. Ct. 1535, 1538 (1997).
135Ryan v. McKie,
1 BRBS 221, 225 (1974); see also Stubblefield v. Dutra Constr. Co., 26 BRBS 774, 776
(ALJ) (1993) (noting that the Office of Administrative Law Judges retains subject matter
jurisdiction over an injured worker's longshore claim not withstanding a concurrent Jones Act
claim based on the same injury).