DiGiovanni v. Traylor Bros., Inc.

• Decision Date: 08 September 1993
• Docket Number: Civ. A. No. 89-0369L.
• Citation: 830 F. Supp. 106
• Parties: Rocco P. DiGIOVANNI, Jr., Plaintiff, v. TRAYLOR BROTHERS, INC., Defendant.
• Court: U.S. District Court — District of Rhode Island

830 F. Supp. 106

Rocco P. DiGIOVANNI, Jr., Plaintiff, v. TRAYLOR BROTHERS, INC., Defendant.

Civ. A. No. 89-0369L.

United States District Court, D. Rhode Island.

September 8, 1993.

David Kaplan, The Kaplan Group, Boston, MA, Merrill J. Freidemann, Lovett, Schefrin & Gallogly, Providence, RI, for plaintiff.

Andrew Rothchild, Lewis, Rice & Fingersh, St. Louis, MO, S. Michael Levin, Edwards & Angell, Providence, RI, for defendant.

MEMORANDUM AND ORDER

LAGUEUX, Chief Judge.

This matter is before the Court on the motion of defendant Traylor Brothers, Inc. for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff DiGiovanni bases his claim on vessel negligence under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b) (1988) ("§ 905(b)"). He seeks to recover for an injury he sustained while performing his duties on barges operated by defendant. Defendant, however, denies § 905(b) liability. The sole issue raised by this motion is whether these barges constitute vessels for purposes of § 905(b).

BACKGROUND

In 1988, plaintiff was injured while working on a construction project involving the Jamestown bridge, which spans a portion of Narragansett Bay in Rhode Island. His principal duty during the project was to handle a tag line to guide a crane mounted on a barge named the BETTY F. Although plaintiff worked primarily on the BETTY F, at the time of his injury he was standing on the deck of an adjacent supply barge in order to better manipulate the tag line. The deck of the supply barge was slippery, and plaintiff fell.

The BETTY F was a barge, 100 feet in length, with a 40 foot beam and a raked bow and stern, equipped with nautical equipment, such as navigation and anchor lights. In all respects it met the commonly understood characteristics of a vessel, and, indeed, had been inspected by the Coast Guard. Although the BETTY F had no means of self-propulsion, some positional movement could be achieved by manipulating her spud anchors. At the time of plaintiff's injury the barge was positioned on the Bay beneath the Jamestown bridge, bearing a crane that was being used for bridge construction. It had been at the Jamestown bridge site for a month, situated near the bridge pilings as required for the construction work, and moved away from the pilings at night to prevent damage. While the BETTY F's home port was Wilmington, Delaware, she was permanently stationed in Davisville, Rhode Island, from which she was towed from time to time, by tug, to perform various shore jobs.

The companion barge to the BETTY F, on which plaintiff was actually injured, was a structure measuring 80 feet in length, with a 40 foot beam, that travelled back and forth under tow on an almost daily basis from its main base in Davisville, transporting supplies for use on the BETTY F.

Plaintiff filed suit in this Court in 1989 seeking to recover for his injury under the Jones Act, 46 App.U.S.C. § 688 (1988), or alternatively, for vessel negligence under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). The Jones Act provides seamen who suffer personal injury in the course of their employment with a remedy for negligence against their employers, while the LHWCA provides a remedy for injuries to longshoremen and harbor workers against their employers. In addition to the LHWCA's compensation function, under § 905(b) of the LHWCA a worker may bring a third party action against a vessel owner to recover damages for injury caused by the negligence of a vessel.

Plaintiff's case was tried before a jury (Judge Torres presiding) in 1990. The jury found for plaintiff on the Jones Act claim, and awarded damages in the amount of $333,416.00. Since the Jones Act and the LHWCA provide mutually exclusive remedies, the jury, in accordance with the instructions of the Court, did not reach the § 905(b) claim.

Defendant appealed the case to the First Circuit, claiming that plaintiff could not recover because he was not a seaman and the BETTY F was not a vessel under the Jones Act. A three judge panel affirmed the decision below, in accordance with established First Circuit precedent. Defendant petitioned for a rehearing, and the Court granted the petition. The First Circuit, sitting en banc, reversed, determining that plaintiff was not eligible for Jones Act recovery. DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119, 1123-24 (1st Cir.1992) (en banc), cert. denied, ___ U.S. ___, 113 S.Ct. 87, 121 L.Ed.2d 50 (1992). After considering Fifth Circuit precedent, the First Circuit held that for a Jones Act claim, "if a barge, or other float's `purpose or primary business is not navigation or commerce,' then workers assigned thereto for its shore enterprise are to be considered seamen only when it is in actual navigation or transit." Id. at 1123. The Court determined that the BETTY F was neither primarily used for navigation or commerce, nor in transport when the injury occurred, and thus concluded that DiGiovanni was not a seaman eligible to recover under the Jones Act. The Court then remanded the case to permit consideration of the § 905(b) claim, and defendant now moves for summary judgment on that claim.

Defendant argues that DiGiovanni's remaining claim must fail because a § 905(b) action presupposes the existence of a vessel, and the BETTY F and her companion supply barge are not vessels. Defendant seems to agree with plaintiff that the definition of vessel set forth in the General Provisions of the United States Code at 1 U.S.C. § 3 provides the definition of a vessel for purposes of § 905(b). However, defendant argues that the Court should consider the use of the structures rather than their physical characteristics in deciding whether they are vessels. Defendant cites cases, primarily from the Fifth Circuit, in which floating dry docks, and moored barges used as work platforms greatly resembling dry docks, are excepted from the definition of § 905(b) vessels as a matter of law. Defendant appears to contend that this Court should apply the Fifth Circuit reasoning to determine that the BETTY F and her companion supply barge were used as work platforms analogous to dry docks, and thus conclude that the barges fail to qualify as vessels for purposes of § 905(b).

Plaintiff opposes defendant's motion by noting first that most courts, including those cited by defendant, define vessel status for purposes of the LHWCA by reference to 1 U.S.C. § 3. Plaintiff contends that, under this definition, the barges at issue are patently vessels. Plaintiff goes on to argue that the structures in the cases cited by defendant are clearly distinguishable from the BETTY F and its companion supply barge, and, thus, these cases, and any exception to the plain meaning of 1 U.S.C. § 3 espoused within these cases, are irrelevant to the instant proceedings.

The Court heard oral arguments regarding this motion on May 27, 1993, and took the matter under advisement. The matter is now in order for decision.

DISCUSSION

I. Standard of Review

Defendants move for summary judgment on plaintiff's claim for vessel negligence under 33 U.S.C. § 905(b). Rule 56(c) of the Federal Rules of Civil Procedure provides the standard for ruling on a summary judgment motion:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In determining whether summary judgment is appropriate, the Court must view the facts on the record and all inferences therefrom in the light most favorable to the nonmoving party. See Blanchard v. Peerless Ins. Co., 958 F.2d 483, 485 (1st Cir.1992); Continental Casualty Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991). Additionally, the moving party bears the burden of showing that no evidence supports the non-moving party's position. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In this case, to succeed, defendant must establish that its barges are not vessels for purposes of § 905(b). As explained below, this Court concludes that defendant has not satisfied its burden, and the motion must be denied.

II. "Vessel" As Defined By 1 U.S.C. § 3

The portion of § 905(b) of the LHWCA relevant to plaintiff's claim states:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person ... may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.... The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.

33 U.S.C. § 905(b). While the LHWCA does not provide a definition of the term "vessel," the Code's General Provisions define the word vessel as including "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3.

This 1 U.S.C. § 3 definition, with a narrow exception for floating dry docks discussed in the next section, has been applied explicitly or implicitly in every case involving an LHWCA § 905(b) claim of which this Court is aware. Some courts have stated that 1 U.S.C. § 3, as a matter of law, provides the LHWCA "vessel" definition. See, e.g., Kathriner v. UNISEA, Inc., 975 F.2d 657, 662 (9th Cir.1992); Ducrepont v. Baton Rouge Marine Enters., 877 F.2d 393, 395-96 (5th Cir.1989). Other cour...