Bennett v. Perini Corp.

• Decision Date: 10 February 1975
• Docket Number: No. 74--1183,74--1183
• Citation: 510 F.2d 114
• Parties: William E. BENNETT, Plaintiff-Appellant, v. PERINI CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 114

510 F.2d 114

William E. BENNETT, Plaintiff-Appellant, v. PERINI CORPORATION, Defendant-Appellee.

No. 74--1183.

United States Court of Appeals First Circuit.

Argued Dec. 3, 1974.

Decided Feb. 10, 1975.

David B. Kaplan, Boston, Mass., with whom Kaplan, Latti & Flannery, Boston, Mass., was on brief, for plaintiff-appellant.

James C. Gahan, Jr., Boston, Mass., for defendant-appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Appellant, a carpenter by trade, was employed by appellee corporation and assigned to a crew doing cement form work in connection with one of the large concrete piers being poured for the Newport-Jamestown Bridge then under construction in Narragansett Bay. On March 5, 1969, appellant was injured in a fall from one of the pier faces to a platform approximately 15 feet below. He subsequently brought this action in admiralty seeking recovery on the customary counts. The district court, at the conclusion of appellant's evidence, granted appellee's motion for directed verdict, Fed.R.Civ.P. 50(a), and entered judgment for appellee on all 3 counts. We vacate the judgment and remand for a new trial.

The district court did not state the grounds upon which it directed a verdict, and we receive little enlightenment from the record since much of the argument of counsel and commentary by the court took place off the record. Moreover, the moving party ignored Fed.R.Civ.P. 50(a) requiring that the specific grounds for a directed verdict be stated in the motion. As it is predictable that a directed verdict will generate an appeal, it would have been helpful to all concerned had the reasons which led the court to allow appellee's motion for directed verdict been preserved in some manner on the record. ¹

According to the parties, they understood the ground to be the conjectural nature of what occasioned appellant's fall. Conceivably (although there is nothing to indicate this to have been the case) the court might also have found that appellant lacked a remedy in admiralty against his employer on the ground that he was not a 'seaman.' Both questions were briefed and argued, and we address ourselves to both.

We turn first to whether appellant was a seaman within the meaning of the Jones Act, 46 U.S.C. § 688. In Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir. 1959), the Fifth Circuit said,

'(T)here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.'

Since both elements of this test of evidentiary sufficiency turn upon the existence of a vessel, our initial inquiry is whether appellant was associated with any 'vessel' as that term has been defined by maritime law. The evidence indicated that appellant was normally picked up each day at the dock in Newport and ferried out to the bridge pier by a tug operated by his employer, appellee. There he transferred to the 'Scow 101,' a steel-hulled barge owned by appellee and some 38 feet wide by 120 feet long. This barge was without motive power of its own and had to be towed from place to place. On it was mounted a large crane. Appellee utilized the barge in support of its bridge construction efforts, and there was evidence from which one could infer that it was moved to other piers along the 2 1/2 mile long bridge, and could be used for other construction projects in and around navigable waters. At the time of the accident it was in navigable waters, tied up alongside the pier of the bridge from which appellant fell in such a manner that its crane could move materials for the bridge while its deck could be used as a storage area and work platform for the construction crews.

Appellant maintains that the Scow 101 is a vessel. The identical scow was held to support Jones Act recovery by a different plaintiff in Stafford v. Perini Corp., 475 F.2d 507 (1st Cir. 1973), although its status was apparently not at issue in that case. See Powers v. Bethlehem Steel Corp., 477 F.2d 633, 648 (1st Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973). While not everything that floats is a vessel, id. at 647 n. 4, we think a jury could find that this craft was one of the 'special purpose floating structures' which the maritime law has included within the term. Id. at 647--48; Robison, supra; see generally 7A Moore's Federal Practice .215(4). Whether a marginal structure is a vessel is a question for the jury unless the craft is clearly outside any permissible understanding of the term. In those 'rare cases' where rafts or barges have been held, as a matter of law, not to be vessels, it has often been because of their close similarity to floating docks or dry-docks, traditionally regarded as extensions of land. Thus a wooden staging used by workmen repairing piles under a pier was not a vessel, Powers, nor was a specially-constructed barge ordinarily tied to the shore and used to fabricate concrete barges. Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.), cert. denied,414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973). While Scow 101 bears certain similarities to craft of this description, its seagoing range and versatility are greater. The determinative factors are 'the purpose for which the craft was constructed and the business in which it is engaged.' The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73(1903). To be a vessel, the purpose and business must to some reasonable degree be the 'transportation of passengers, cargo, or equipment from place to place across navigable waters.' Powers at 477 F.2d 647. A major function of Scow 101 appears to have been the transportation of the structural materials and tools used to build the bridge and the crane across the navigable waters of Narragansett Bay. We cannot say as a matter of law that Scow 101 was not a vessel. Robison, supra, 266 F.2d at 779--80; Powers, supra, 477 F.2d at 646. See Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404, rehearing denied, 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 (1957); Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955).

We next inquire whether there was evidence that appellant was 'assigned permanently' to Scow 101 or 'performed a substantial part of his work' thereon, and whether he 'contributed to the function of (Scow 101) or to the accomplishment of its mission, or to (its) operation or welfare . . . during its movement or during anchorage . . ..' Robison, supra, 266 F.2d at 779. Evidence was introduced that appellant was employed to work with the large wooden panels which were used to form molds into which the wet cement for the bridge pier was poured. His duties included constructing the panels and preparing them for assembly, fitting them together after they had been hauled into place by the barge crane disassembling and removing the panels when the cement had hardened, and repairing and reshaping them for reuse on another portion of the pier. While much of this work necessarily took place on the pier itself, there was evidence that a major part of the carpentry work was regularly done on the deck of Scow 101, where the additional space provided a necessary platform for constructing and reworking the panels. While it does not appear how much time on the average was spent on the barge, it was owned by his employer and at least from appellant's evidence there is sufficient connection to present a jury issue under the first element of the Robison test.

The second element is perhaps harder to perceive. Nenetheless, the 'mission' of Scow 101 was to provide a support base for the construction of the bridge piers. Appellant's duties, if not obviously maritime, related to that function and were arguably essential for its satisfactory performance. Cf. Harney v. William M. Moore Bldg. Corp., 359 F.2d 649, 654--56 (2d Cir. 1964). We are satisfied that on this record plaintiff is entitled to have the question decided by a jury. See Stafford, supra, 475 F.2d at 510; ² Senko, supra; Gianfala, supra; H. Baer, Admiralty Law of the Supreme Court 180--89 (2d ed. 1969).

We next consider whether there was sufficient evidence of negligence to permit appellant to go to the jury on Count I. The Jones Act is to be construed remedially, and it is fair to say that the threshold of evidentiary sufficiency is somewhat lower than in tort actions at common law. Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948); Schulz v. Pennsylvania R.R., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668 (1956); G. Gilmore & C. Black, The Law of Admiralty § 6--36 (1957); cf. Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957) ('the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'). The concept of what constitutes negligence is broader, perhaps because of the employer-employee setting, ³ and defendant's negligence need only be a contributing factor rather than a primary cause of injury. Peymann v. Perini Corp., 507 F.2d 1318 (1st Cir. 1974). Our task, moreover, in reviewing the propriety of a directed verdict is to consider the evidence in the light most favorable to the losing party. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404...