DiGiovanni v. Traylor Bros., Inc.

• Citation: 959 F.2d 1119
• Decision Date: 03 December 1991
• Docket Number: No. 90-1957,90-1957
• Parties: , 60 USLW 2583 Rocco P. DIGIOVANNI, Jr., Appellee, v. TRAYLOR BROTHERS, INC., Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1119

959 F.2d 1119

1992 A.M.C. 1521, 60 USLW 2583

Rocco P. DIGIOVANNI, Jr., Appellee, v. TRAYLOR BROTHERS, INC., Appellant.

No. 90-1957.

United States Court of Appeals,

First Circuit.

Heard Dec. 3, 1991.

Decided March 4, 1992.

Rehearing and Rehearing En Banc Denied March 27, 1992.

Andrew Rothschild with whom Eric D. Paulsrud, John D. Husmann, and Lewis, Rice & Fingersh, St. Louis, Mo., were on brief, for appellant.

David B. Kaplan, with whom Thomas M. Bond, The Kaplan Bond Group, Boston, Mass., Paul Gallogly, and Lovett, Schefrin, Gallogly & Harnett, Providence, R.I., were on brief, for appellee.

Before BREYER, Chief Judge, BAILEY ALDRICH, Senior Circuit Judge, CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, TORRUELLA, SELYA and CYR, Circuit Judges.

OPINION EN BANC

BAILEY ALDRICH, Senior Circuit Judge.

Defendant petitions for rehearing on the single issue of Jones Act recovery, renewing its claim that plaintiff, a member of the carpenter's union, is not a seaman, and the barge, the BETTY F, was not to be regarded as a vessel, particularly in light of a number of recent cases, notably in the Fifth Circuit. It asks us to reconsider our holding in Bennett v. Perini Corp., 510 F.2d 114 (1st Cir.1975). Defendant asserts that, by speaking in terms of vessels, we have extended the concept of special protection needed for seamen exposed to the perils of the sea to workers who are not even theoretically so endangered. This, allegedly, is a carry-over of outmoded Supreme Court decisions, post. We will reconsider.

Briefly, the facts are these. The BETTY F was a barge, 100 feet in length, with a 40 foot beam and a raked bow and stern, and with nautical equipment, such as navigation and anchor lights. In all respects it met the commonly understood characteristics of a vessel, and, indeed, was inspected by the Coast Guard. It had no means of self-propulsion, except that positional movement could be achieved by manipulating Plaintiff's principal duty was to handle a tag line to guide the crane, but he also did maintenance work, such as painting, and tended lines. Although he was attached to the BETTY F, at the time of his injury he was standing on the deck of a supply barge in order better to manipulate the line. Its deck proved to be slippery, and he fell. The supply barge was in general use to carry supplies, but also served as a work platform.

                its spud anchors.   Its current use was to float at the Jamestown, Rhode Island, bridge, bearing a crane that was being used for bridge construction.   Its permanent station was Davisville, Rhode Island, from which it was towed, by a tug, from time to time, to perform various shore jobs.   It had been at the Jamestown bridge for a month.   It was positioned about the bridge, and moved away from the pilings at night, to prevent damage
                

The district court put special questions to the jury as between plaintiff being a Jones Act seaman and a harbor worker, and stated it could find the former--with greater rights--if he was attached to a vessel. Following Bennett, it stated, "A special purpose structure not usually employed as a means of transport by water, but designed to float on water may also be considered a vessel," and said nothing about its current use. The jury answered that plaintiff was a seaman, and defendant, having duly saved its rights, appealed. A panel, unanimous because it felt bound by Bennett, affirmed. This petition followed.

The Jones Act itself, 46 U.S.C.App. § 688, does not use the words ship and vessel, and speaks only of seamen, but courts have naturally spoken of seamen in terms of ships, vessels, and voyages. Thus in the recent case of McDermott International, Inc. v. Wilander, --- U.S. ----, 111 S.Ct. 807, 814, 112 L.Ed.2d 866 (1991), the Court repeated the definition given in Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254 (1934), "a seaman is a mariner of any degree, one who lives his life upon the sea. It is enough that what he does affects 'the operation and welfare of the ship when she is upon a voyage.' " Warner, 293 U.S. at 157, 55 S.Ct. at 47 (quoting The Buena Ventura, 243 F. 797, 799 (S.D.N.Y.1916)); see also, Norton v. Warner Co., 321 U.S. 565, 572, 64 S.Ct. 747, 751, 88 L.Ed. 931 (1944). And, of course, a vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside. See Powers v. Bethlehem Steel Corp., 477 F.2d 643, 648 (1st Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973). This practical fact availed the Court to hold that stevedores substituting for seamen in doing conventional seamen's work when the vessel was docked should equally come under the Act. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The reasoning was that the stevedore was "incurring a seaman's hazards." Id. at 99, 66 S.Ct. at 879. In point of fact this could be said to be making the exception the rule. Seamen who go down to the sea in ships incur special hazards on the sea, not at dockside. ¹ The reasoning that favors not interrupting their coverage during a temporary cessation of those risks does not equally favor opening the coverage to workers who substitute for seamen only during non-hazardous, non-voyage, intervals. This, however, was once law. ² The battle between the Court and Congress, met by revisions in the Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as amended, 33 U.S.C. §§ 901-950, detailed in Wilander Rafts, of course, may be designed or used 'to encounter perils of navigation'.... But we cannot reasonably describe the present raft as other than a floating stage. Even with men and equipment on it, its movement, amounting mostly to a positioning under the pier incidental to its intended use, was not navigation.

                111 S.Ct. at 810-13, was won by Congress.   Longshoreman and seaman status are now mutually exclusive.  111 S.Ct. at 817.  "All who work at sea in the service of a ship face those particular perils to which the protection of maritime law, statutory as well as decisional, is directed."   Id. (emphasis supplied).   We followed that concept to a considerable extent in  Powers, 477 F.2d 643, ante, but we did so in terms of whether the structure was a vessel.   The structure on which plaintiff was working was a raft, made of 12 X 12 timbers bonded together, used as a floating platform for pile workers and carrying sandblasting equipment and forms under piers to be placed around piles.   We held it was not a vessel in spite of "occasional 'voyages'--when towed by workboat from one pier to another." 3  Id. at 647
                

Id. (emphasis supplied). Later in the opinion, we remarked that "the law of admiralty [is] 'designed and molded to handle problems of vessels relegated to ply the waterways of the world.' " Id. at 648 (citing Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 269, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972)). Two years thereafter, however, we moved a long way from a waterway, holding that a pier worker who fell from a pier onto another land-based platform could recover under the Jones Act because the barge on which he also worked, Scow 101, could be found to be a vessel. Bennett v. Perini Corp., 510 F.2d 114 (1st Cir.1975). In a comparatively brief discussion, we distinguished Powers, saying that Scow 101's

seagoing range and versatility are greater.... 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.

510 F.2d at 116 (emphasis supplied).

Having determined that because of its "major function" of transportation, the scow was a vessel, the Bennett court faced the question whether plaintiff " 'contributed to the function ... or to the accomplishment of its mission.' " Id. (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959). We noted that, as a carpenter, plaintiff spent much of his time on the pier. However,

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.

. . . . .

[T]he '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.

510 F.2d at 117. Thus while Powers' raft's transportation of sandblasting equipment from pier to pier, and "through Boston Harbor to other jobs," was "incidental," to its "intended use," Scow 101's transportation of a crane across Narraganset Bay was "to some reasonable degree" a "major function," and made the pier worker a seaman.

This produced a difficult dividing line. It is particularly troublesome in light of the fact that plaintiff Bennett was not a user of the crane, and thus connected with what was transported, but was simply using the floating deck space, comparable to the Powers raft, which this court described as "an extension of the pier, itself an extension of the land." 477 F.2d at 648. Nor, if This language from Offshore did not survive. Many decisions later, in Bernard v. Binnings Construction Co. 741 F.2d 824 (5th Cir.1984), Offshore was relegated to a footnote. Floating is not enough. Id. at 828 n. 13. Nor is "capability of movement across navigable waters." Id. at 829. Rather, the test is whether it

                transportation--the voyage--is the key to maritime responsibility, did the Bennett court make any mention of the length of jobs, and consequent voyage frequency.   What we did was quote the amorphous wording of the Offshore Company opinion, "The 'injured

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