Bach v. Trident S.S. Co., Inc.

• Decision Date: 10 January 1991
• Docket Number: No. 89-3298,89-3298
• Citation: 920 F.2d 322
• Parties: , 59 USLW 2443 Helen Ehret BACH, Eugene G. Bach, III, Janet B. Lashley, Plaintiffs-Appellants, v. TRIDENT STEAMSHIP COMPANY, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 322

920 F.2d 322

1991 A.M.C. 928, 59 USLW 2443

Helen Ehret BACH, Eugene G. Bach, III, Janet B. Lashley Plaintiffs-Appellants, v. TRIDENT STEAMSHIP COMPANY, INC., et al., Defendants-Appellees.

No. 89-3298.

United States Court of Appeals Fifth Circuit.

Jan. 10, 1991.

Mark W. Smith, Gregory F. Gambel, New Orleans, La., for plaintiffs-appellants.

O'Neill, Eichen, Miller & Breckinridge, and Robert H. Murphy, Kenneth J. Servay, Thomas D. Forbes, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The survivors of Eugene G. Bach, Jr. appeal the summary judgment dismissal of their claims made under the Jones Act, the Longshore and Harbor Workers' Compensation Act, and the general maritime law. 708 F.Supp. 776 (E.D.La.1989). We affirm.

I. FACTS

On December 26, 1986, Eugene G. Bach, Jr. came aboard the M/V JAYMAT TRIDENT to serve as its compulsory river pilot between New Orleans and Pilottown, near the mouth of the Mississippi River. Bach arrived alongside the M/V JAYMAT TRIDENT in a small pilot boat and ascended a pilot ladder to the ship's deck. Although Bach arrived safely on the bridge, he collapsed from a heart attack a few minutes later. The crew summoned medical help from shore, but no one attempted to aid Bach although several had been trained in cardio-pulmonary resuscitation techniques.

Bach's survivors brought suit under the Jones Act, the Longshore and Harbor Workers' Compensation Act, and the general maritime law. All of their theories centered upon the adequacy of the pilot ladder and the failure of the crew of the vessel to render medical aid to Bach. The trial judge dismissed their claims, and this appeal followed.

II. JONES ACT

Only a "seaman" may assert a negligence action under the Jones Act. 46 U.S.C.App. Sec. 688. ¹ An injured worker attains seaman status by proving: (i) permanent attachment to or substantial work on a vessel or an identifiable fleet of vessels; and (ii) contribution to the function or mission of the vessel or an identifiable fleet of vessels. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067, 1072-74 (5th Cir.1986) (en banc); Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959).

Bach's survivors do not seriously argue that he was permanently attached to or did substantial work on board the M/V JAYMAT TRIDENT. The record clearly reveals that he fulfilled neither requirement. His transitory work aboard the M/V JAYMAT TRIDENT, which lacked any degree of regularity and continuity, does not constitute either permanent attachment to or substantial work aboard that vessel. See Barrett, 781 F.2d at 1073-74.

Bach's survivors argue that he is not required to establish a connection to the M/V JAYMAT TRIDENT because he can prove the requisite connection to a "fleet" of vessels that includes the M/V JAYMAT TRIDENT. See Barrett, 781 F.2d at 1074; Braniff v. Jackson Ave.--Gretna Ferry, Inc., 280 F.2d 523 (5th Cir.1960). In Barrett, we defined "fleet" for these purposes as an "identifiable group of vessels acting together or under one control." Barrett, 781 F.2d at 1074. The only apparent connection between the vessels Bach piloted was that they traversed a stretch of the Mississippi River between New Orleans and Pilottown. Ordinarily, this would hardly constitute a fleet. But Bach's survivors contend that because each vessel he worked aboard was under his control when he piloted it, the aggregation of the vessels he worked aboard constitutes a fleet.

We made it clear in Barrett that "fleet" means more than simply "any group of vessels an employee happens to work aboard." 781 F.2d at 1074. Bach's "control" argument is no more than an attempt to make a "fleet" out of all the vessels he worked aboard. Barrett 's definition and explanation of "fleet" forecloses this argument. This group of vessels is not a "fleet."

While Bach fails the vessel connection prong of the Robison-Barrett test, we have specifically reserved decision on whether an exception to that test might be made in a case such as Bach's:

We do not decide whether the same principle governs the crewmember status of the maritime worker who spends virtually all of his time performing traditional seaman's duties--work closely related to the movement of vessels--but does his work on short voyages aboard a large number of vessels.

Barrett, 781 F.2d at 1075 n. 13. The question we reserved in Barrett faces us today. In particular, we must decide whether to exempt workers who perform traditional seaman's work on a large number of unconnected vessels from the vessel connection prong of our test for seaman status.

Bach's case for seaman status has considerable intuitive appeal for two reasons: (i) his entire job was to perform an archetypical seaman function, the steering of an oceangoing vessel through navigable waters; and (ii) in performing his job, Bach regularly faced many of the hazards of life on the sea and the risks created by moving vessels through navigable waters. To use a metaphor frequently employed in describing the stuff that makes a seaman, Bach's occupation was quite "salty" indeed.

Although some of our seaman status cases discuss the perils of the sea that the worker faces, we have never held that seaman status is coextensive with exposure to seaman's risks. We have frequently refused to extend seaman's protections to workers exposed to a seaman's perils but who lacked the requisite connection to a vessel or identifiable fleet of vessels. See Ardleigh v. Schlumberger Ltd., 832 F.2d 933, 934 (5th Cir.1987) (employee who worked offshore on thirty unconnected vessels denied seaman status); Lirette v. N.L. Sperry Sun, Inc., 831 F.2d 554, 555-56 (5th Cir.1987) (worker who spent seventy-five to eighty percent of his working time aboard unconnected moveable drilling rigs not a seaman); Langston v. Schlumberger Offshore Services, Inc., 809 F.2d 1192, 1194 (5th Cir.1987) (worker who performed work on fifteen vessels belonging to ten different owners not a seaman). We have also refused to extend seaman status to a variety of workers who undeniably faced the perils of the sea but who worked on a structure that did not qualify as a "vessel." See Reynolds v. Ingalls Shipbuilding Div., Litton, 788 F.2d 264, 267 (5th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 253 (1986) (ship on sea trials not a vessel "in navigation," and therefore those working aboard ship during sea trials not seamen); Reeves v. Offshore Logistics, Inc., 720 F.2d 835, 836-37 (5th Cir.1983) (helicopter not a vessel and therefore offshore helicopter pilot not a seaman).

Similarly, we have not granted seaman status to workers who performed the work usually or traditionally done by seamen but who lacked connection to a vessel or fleet of vessels. To the contrary, we have always required those workers performing traditional maritime functions to satisfy the vessel connection test. In Fazio v. Lykes S.S. Co., Inc., 567 F.2d 301 (5th Cir.1978), we denied seaman status to a shoregang worker who performed traditional seaman's work but who lacked the requisite vessel connection. Similarly, in White v. Valley Line Co., 736 F.2d 304 (5th Cir.1984), we refused to grant seaman status to an injured fleetman at a barge fleeting facility who spent almost all of his time aboard various barges doing seaman-type work--handling tow lines, and cleaning and repairing barges--but who could not show connection to a vessel or identifiable fleet of vessels. Thus, to grant Bach an exemption from establishing connection to a particular vessel or fleet of vessels would be inconsistent with a long list of cases from this court.

Granting Bach an exception to the vessel connection requirement would also draw us farther away from other circuits. Although Robison and Barrett only require the worker to establish that he aided in the accomplishment of the mission of the vessel, several other circuits adhere to the narrower "aid in navigation" test or a similarly stringent requirement. See Stanfield v. Shellmaker, Inc., 869 F.2d 521, 523 (9th Cir.1989); Johnson v. John F. Beasley Const. Co., 742 F.2d 1054, 1062-63 (7th Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1180, 84 L.Ed.2d 328 (1985); Simko v. C & C Maintenance Co., 594 F.2d 960, 964-65 (3rd Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 64, 62 L.Ed.2d 42 (1979); Whittington v. Sewer Const. Co., 541 F.2d 427, 436 (4th Cir.1976). To further weaken our test by excusing workers engaged in traditional maritime work from establishing vessel connection would only widen the gap between this court and most other circuits in the proof required to establish seaman status. ²

Further, such an exception for workers engaged in traditional maritime work would be difficult to apply and would unnecessarily inject uncertainty and ambiguity in our circuit's test for seaman status. For example, would harborworkers, particularly those engaged in occupations not enumerated in the Act ³ who perform essential vessel functions traditionally performed by the crew and who sometimes face seaman-type risks, be entitled to have a jury ponder whether they are seamen? For over thirty years, this circuit has struggled to provide a workable test for distinguishing seamen from other maritime workers in maritime injury cases. A large body of law, developed through a case-by-case application of the Robison test, provides the means for deciding which workers are entitled to the benefits of the Jones Act. Dozens (perhaps hundreds) of seaman status cases have come before us, but we have never made an exception to the core requirement that the injured worker show attachment to a vessel or identifiable fleet of vessels. We decline the invitation now to make a wholesale exception to a test that has served us for so long.

In short, to create an...