Berry v. American Commercial Barge Lines
| Citation | 114 Ill.App.3d 354,71 Ill.Dec. 1,450 N.E.2d 436 |
| Parties | , 71 Ill |
| Decision Date | 01 December 1984 |
| Court | United States Appellate Court of Illinois |
Dunham, Boman & Leskera, East St. Louis, for defendants-appellants, cross-appellees; Howard Boman and Eric C. Young, East St. Louis, of counsel.
William E. Brandt, William E. Brandt & Associates, Granite City, and George J. Moran, Sr., Callahan & Moran, Trenton, for plaintiff-appellee, cross-appellant.
Plaintiff Patrick Berry was employed as a first class shipfitter at facilities operated by subsidiaries of American Commercial Barge Lines (ACBL) on the Mississippi River at Alton, Illinois. On November 29, 1973, he was working on an inclined metal surface known as a slope sheet on barge vessel S-127 which had been brought to ACBL's floating drydock for repairs. While assisting a welder in replacing a metal patch on that surface, the plaintiff was temporarily blinded by the flash from the arc of the welder's rod when the welder accidently struck an arc in front of the plaintiff. He then lost his balance and attempted to descend the slope sheet so that he would not fall, but his foot became caught on a piece of metal called a scab, which is welded temporarily onto metal surfaces to give repair workers more secure footing. The plaintiff fell, injuring his left knee.
On December 10, 1973, the plaintiff again sustained injuries to that knee. He was assigned to do repair work in the port side shaft alley of the motor vessel R.W. Naye, which had also been brought to the floating drydock. As he was heating shaft couplings with a rosebud torch, he slipped on grease which had accumulated on the floor of the shaft alley compartment.
The plaintiff brought suit in the circuit court of Madison County against ACBL and two of its subsidiaries, Jeff Boat, Inc. and Louisiana Dock Boat Co., Inc. (La. Dock) to recover for his injuries. This action was based, inter alia, on general principles of negligence and maritime law and on the Jones Act (46 U.S.C. sec. 688) The case was submitted to the jury against ACBL and La. Dock under the Jones Act counts, and the jury awarded the plaintiff $250,000 in damages against both defendants. Judgment was entered upon that verdict. Defendants ACBL and La. Dock appeal from that judgment against them, and the plaintiff has brought a cross appeal in which he requests that, if it is determined that he is not covered by the Jones Act as a matter of law, then the court's order dismissing his maritime and negligence counts should be reversed.
The defendants present three assignments of error: (1) The trial court should have directed verdicts in their favor because the evidence introduced at trial fails to show that the plaintiff was a "seaman." (2) The court erred in giving certain instructions proffered by the plaintiff, and (3) the court should have granted defendants' motion for a mistrial, based upon the conduct of plaintiff's counsel in examining a witness called by him under Section 60 of the Civil Practice Act ().
The first argument made by the defendants presents another variation on the Jones Act "riddle," as characterized by the Fifth Circuit (Ardoin v. J. Ray McDermott and Co. (5th Cir.1981), 641 F.2d 277, reh. den., 646 F.2d 566, app. after remand (1982), 684 F.2d 335; Offshore Co. v. Robison (5th Cir.1959), 266 F.2d 769), namely, "When is a maritime worker a seaman?" More accurately, this case asks, "When is a jury question presented concerning whether a shipfitter injured while working on vessels on a floating drydock is a seaman?" The solution to this "riddle" requires more "clues," in the form of the facts of this case.
The facilities at which the plaintiff was employed were located on the Mississippi River at the foot of Plum Street in Alton, Illinois. They consisted of office, machine and mechanical barges, as well as two floating drydocks. The barges were permanently secured to pylons by cables, and one would obtain access to the barges through a walkway from shore. The record indicates that none of the facilities at Alton were located ashore.
Although both floating drydocks could be moved from place to place, neither had any motive power, and they would have to be transported by a motor vessel. The drydocks were attached to large steel arms by cables. A vessel needing repair would move close to a drydock, or, if it were not self-propelled, it would be brought to the drydock, generally by the ACBL motor vessel Little Giant. The drydock would then be partially submerged, allowing the vessel to enter, and raised again, the vessel along with it.
The plaintiff was first hired by ACBL as a laborer and deckhand on the Little Giant. In that capacity, he was required to use lines and wires to attach the Little Giant to other vessels. Eventually, the plaintiff was promoted to second class fitter, and then again to first class fitter. As a fitter, he worked with torches and sledge hammers to fit steel into place on vessels in need of repair. However, he also continued to handle lines and wires, even when he worked on the drydock, because the vessels brought to the drydock had to be secured. The plaintiff recalled that he usually operated lines and wires about twice a day. Gary Bidwell, who was with the plaintiff on the R.W. Naye on December 10, 1973, and who had been employed by ACBL, always as a first class welder, testified that when he was assigned to work on a drydock, he would work with lines as the drydock was raised or lowered.
The plaintiff did not sleep on board any vessel or other facility. He lived ashore, reported for work as scheduled and received assignments to repair whatever motor vessels or barge vessels were in need of repair. These assignments could require him to work on a vessel in the drydock or on a vessel afloat in the Mississippi. He could perform repairs on a vessel belonging to ACBL or one of its subsidiaries, or on a vessel belonging to a concern unconnected with ACBL. The La. Dock and Jeff Boat Companies "provide the bulk of service" for ACBL and its barge companies, according to ACBL's vice-president and general counsel, but their facilities are operated independently and thus do repair and fabrication work on non-ACBL vessels. The R.W. Naye and the barge vessel S-127, on both of which the plaintiff was injured, were owned and operated by ACBL or subsidiaries. At the time of his injuries, the plaintiff was employed by La. Dock, being the ACBL subsidiary concerned with ship repair, and his paychecks reflected that ACBL acted as the paying agent for La. Dock.
Recovery under the 1920 amendment to the Merchant Marine Act, commonly known as the Jones Act, is limited to "any seaman" suffering personal injury in the course of his employment or to the personal representative of any seaman who dies as a result of such injury. (46 U.S.C. sec. 688). The provisions of the Act itself do not define the term "seaman," although there are many decisions which purport to do so. Because the question of whether an individual is a seaman for purposes of the Jones Act depends upon the facts of the particular case and the activity in which he was engaged at the time of the injury (Desper v. Starved Rock Ferry Co. (1952), 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205, reh. den., 342 U.S. 934, 72 S.Ct. 374, 96 L.Ed. 695), it is only when the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences, that this question should be decided as a matter of law. (Ardoin v. J. Ray McDermott and Co.; Burns v. Anchor-Wate Co. (5th Cir.1972), 469 F.2d 730).
In deciding whether a plaintiff's status as a seaman presented a jury question, the authorities under the Jones Act have been virtually unanimous in applying the following three-part test to various sets of facts: (1) that the plaintiff was injured upon a vessel in navigation, (2) that the plaintiff was aboard that vessel primarily to aid in navigation, and (3) that the plaintiff had a more or less permanent connection with that vessel or with a specific group or fleet of vessels. (Abshire v. Seacoast Products, Inc. (5th Cir.1982), 668 F.2d 832; Baker v. Pacific Far East Lines, Inc. (N.D.Cal.1978), 451 F.Supp. 84; Griffith v. Wheeling Pittsburgh Steel Corp. (3rd Cir.1975), 521 F.2d 31, cert. den. (1976), 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643; Offshore Co. v. Robison ). This test rests upon several unexplained definitions such as the terms "navigation" and "aid to navigation." But, in this case, it is the term "vessel" which the defendants claim presents a threshold issue, resolution of which in their favor as a matter of law would obviate applying the three part test.
The plaintiff contends that the defendants presented their case in the trial court under the theory that the R.W. Naye, the barge S-127 and the floating drydock could be considered "vessels" by the jury and thus they should be prevented from denying their status as vessels to this court. However, in moving for a directed verdict, the defendants raised the issue of whether the plaintiff was not a seaman as a matter of law, and the defendants are correct that the status of the drydock as a vessel is an integral part of that question. Moreover, the defendants' written post-trial motion specifically argued that there was no evidence to prove the existence of any vessel in navigation. Thus, the theory that the floating drydock is not a vessel as a matter of law is not a contention which was never presented to the trial court.
Essentially, the defendants insist that the floating drydock upon which the plaintiff worked was not a vessel as a matter of law,...
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