Evans v. United Arab Shipping Co. S.A.G.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: HUTCHINSON; NYGAARD; Present SLOVITER
• Citation: Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 207 (3rd Cir. 1993)
• Decision Date: 22 September 1993
• Docket Number: 92-5534,92-5301,Nos. 92-5301,Nos. 92-5300,s. 92-5300,s. 92-5301
• Parties: William W. EVANS, Appellant at& 92-5534, v. UNITED ARAB SHIPPING COMPANY S.A.G.; M/V AL WATTYAH, her engines, boilers, equipment, etc. United Arab Shipping Company S.A.G., Appellant at& 92-5535 & 92-5535.

Page 207

4 F.3d 207

1993 A.M.C. 2705

William W. EVANS, Appellant at Nos. 92-5300 & 92-5534, v. UNITED ARAB SHIPPING COMPANY S.A.G.; M/V AL WATTYAH, her engines, boilers, equipment, etc United Arab Shipping Company S.A.G., Appellant at Nos 92-5301 & 92-5535

Nos. 92-5300, 92-5301, 92-5534 & 92-5535.

United States Court of Appeals Third Circuit.

Argued Feb. 22, 1993.

Decided Aug. 13, 1993.

Sur Petition for Rehearing Sept. 22, 1993.

Jeffrey S. Moller, Clark, Ladner, Fortenbaugh & Young, Philadelphia, PA, and Edward V. Cattell, Jr., (argued), Clark, Ladner, Fortenbaugh & Young, Cherry Hill, NJ, for William W. Evans.

Cary R. Wiener (argued), Saburabi N. Ibrahim, Kirlin, Campbell & Keating, New York City, for United Arab Shipping Co. S.A.G.

Before: HUTCHINSON, NYGAARD and SEITZ, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellant/cross-appellee, William W. Evans ("Evans"), a compulsory river pilot, brought this action in the United States District Court for the District of New Jersey pursuant to general admiralty and maritime law and the Jones Act ("the Act"), 46 U.S.C.A. app. Sec. 688 (West Supp.1993). ¹ He sought recovery for personal injuries allegedly sustained as a result of the negligence of the appellee/cross-appellant, United Arab Shipping Company ("UASC" or "shipowner"), as well as the unseaworthiness of UASC's vessel. The district court held that Evans was covered by the Jones Act because a compulsory river pilot qualifies as a "seaman"; furthermore, it held that Evans was employed by the vessel at the time of his injury as the Act requires. Because Evans was unable to show the extent to which his accident aggravated a preexisting neurological condition, however, the district court refused to award him any damages for aggravation of this condition.

At our Docket No. 92-5301, UASC cross-appeals the district court's order holding that Evans is a "seaman" entitled to protection under the Jones Act. According to UASC, Evans lacks the requisite employment relationship with the shipowner as well as the permanent attachment to the vessel that it says is required for seaman status under the Act. As a prerequisite to recovery under the Act, a plaintiff must establish that the injury occurred within the scope of employment. Evans did not establish that he was an employee of UASC within the meaning of the Act and was instead an independent contractor. A shipowner does not have the right to control the actions of a compulsory river pilot or the right to hire or fire that pilot under applicable Delaware law. We hold, therefore, that Evans is not entitled to recover against UASC under the Jones Act because he was not an employee of UASC acting within the course of his employment when he was injured. This disposition makes it unnecessary for us to reach the issue of whether a compulsory river pilot must have a permanent attachment to a particular vessel to claim Jones Act protection. ² Nevertheless, we will affirm the judgment for Evans, but on different reasoning than that used by the district court.

The district court has already determined that Evans has not established a legal or proximate cause between the shipowner's acts and aggravation of Evans's preexisting neurological disease under traditional causation principles and, instead, based its conclusion on the Jones Act's "featherweight" standard of causation. Evans v. United Arab Shipping Co., 767 F.Supp. 1284, 1293 (D.N.J.1991) (Evans I ). The Jones Act's featherweight standard, in common with most workers' compensation statutes, extends common law definitions of legal cause to include precipitation as well as aggravation. Without the Act's recognition of this broader rippling effect, the medical evidence Evans presented is insufficient to show that his accident while descending the ship's ladder aggravated his preexisting, but largely asymptomatic, neurological disease. Absent the Act's extension of traditional views on the limits of legal or proximate cause, we agree with the district court's conclusion that this essential element to recovery for aggravation of Evans's neurological disease is lacking. A remand to the district court for a determination of whether Evans can recover under general admiralty and maritime law for aggravation of his neurological condition, therefore, is likewise unnecessary. UASC has conceded liability for Evans's orthopedic injury. Accordingly, we will affirm the district court's order entering judgment for Evans in the amount of $23,630.00 for the orthopedic injuries he suffered, lost wages and pain and suffering and will do so. See Evans v. United Arab Shipping Co., 790 F.Supp. 516, 520 (D.N.J.1992) (Evans II ).

I.

Evans was a compulsory river pilot licensed by the United States Coast Guard and the State of Delaware for over forty years. ³ As a pilot, Evans was hired to steer ships through the Delaware River and Bay and the Chesapeake and Delaware Canal. During all times material to this action, Evans was a member of the Pilot's Association for the Bay and River Delaware ("the Association"). He paid federal income taxes from 1986-89 as a self-employed taxpayer.

UASC is jointly owned by the governments of Saudi Arabia, Kuwait, Iraq, United Arab Emirates, Bahrain and Qatar. It owns and operates the container vessel M/V AL WATTYAH. On the night of September 9-10, 1989, Evans was on call at the Lewes, Delaware pilot station and was called to pilot the M/V AL WATTYAH toward the Chesapeake and Delaware Canal as far as Chesapeake City, Maryland where a Maryland pilot was to take over the helm. A pilot launch took Evans to the ship, which he boarded by a rope ladder with wooden rungs, known as a pilot ladder or "Jacob's ladder." Evans had difficulty in boarding from this ladder because it was in poor condition but climbed aboard the vessel without incident. He then piloted the ship to the Maryland border. As the vessel approached the point where the Maryland pilot was to board, Evans asked the master to rig the starboard side accommodation ladder so that he could disembark without using the poorly maintained Jacob's ladder that had made boarding difficult. The accommodation ladder was a staircase built of galvanized steel or aluminum, attached at its top to the main deck of the vessel, from which it was lowered to within a few feet of the water's surface. At its lower end there was an attached adjustable platform that could be fixed in position parallel to the water.

At trial, the parties did not dispute the circumstances of the accident. The pilot launch arrived at the vessel with the Maryland pilot on board. He stepped from the launch onto the lowest rung of the accommodation ladder without ever setting foot on the lower platform. A few minutes later, a seaman from the M/V AL WATTYAH started down the accommodation ladder to deliver Evans's briefcase to the launch and to assist Evans in leaving the vessel. As the seaman stepped onto the lower platform, it pivoted and dropped. The seaman fell but suffered no injury. After seeing the seaman examine the platform, Evans inquired whether it was safe to use the accommodation ladder. Evans understood the seaman's response to mean that the ladder was safe and he proceeded to descend. When he reached the lowest rung, he stepped onto the platform. It pivoted on its axle and dropped out from under him. He shifted his weight to the handrail. The handrail collapsed and he fell and struck the deck of the launch with his tailbone. In the fall Evans's face and left rib cage hit the outboard channel of the accommodation ladder. Shaken, Evans succeeded in climbing aboard the launch with the assistance of another seaman. See Evans I, 767 F.Supp. at 1285-87.

Evans brought this action against UASC as the shipowner and the M/V AL WATTYAH in rem, seeking damages under general admiralty and maritime law for orthopedic and neurological injuries suffered while disembarking from UASC's vessel. Evans pleaded a negligence and unseaworthiness theory against UASC and the vessel. He did not specifically plead a Jones Act claim in his complaint; however, he raised that theory in the district court and tried his case on it without timely objection. See infra n. 5. In his complaint, Evans alleged that he suffered orthopedic injuries which included a fractured nose, fractured ribs and a fractured coccyx. X-rays revealed that he did, in fact, suffer a fractured nose, but he produced no evidence to show any other orthopedic injury.

According to Evans, within one or two days of the accident, he and his wife noticed for the first time a slurring of his speech and a weakness and lack of balance in his walking. There has been a steady deterioration in his ability to speak or walk ever since the accident. His worsening condition has led to several serious falls since the accident. One, in February 1990, resulted in a fractured wrist, and in May 1990 another led to a fractured hip. Evans has been treated by several neurologists since the accident. Sadly, as it turns out, Evans continues to suffer from a serious neurological disease which causes progressive deterioration of his motor functions. He is now unable to swallow because bulbar paralysis affects his tongue and, at the time of trial, could expect soon to be bound to a wheelchair. Because of his deteriorating condition, he has not piloted a vessel since November 10, 1989, and in June 1990 he was unable to pass the annual physical exam required to renew his state pilot's license.

Evans presented evidence that he was healthy before the September 1989 accident. In July 1989 in France, he had successfully completed a week long course in ship handling that is required of all Delaware Bay and River pilots. A fellow pilot who took the course with him did not notice any neurological or physical impairment. The evidence given at trial on Evans's good health before the accident is, however, conflicting. Dr. Bhatt, one of Evans's...