Foulk v. Donjon Marine Co., Inc.
| Decision Date | 09 April 1997 |
| Docket Number | Civil Action No. 95-323(JEI). |
| Citation | 961 F.Supp. 692 |
| Parties | Layne B. FOULK and Marjorie E. Foulk, husband and wife, Plaintiffs, v. DONJON MARINE COMPANY, INC., Defendant and Third-Party Plaintiff, v. BREAKWATERS INTERNATIONAL INC., Third-Party Defendant. |
| Court | U.S. District Court — District of New Jersey |
Wiss, Cooke & Santomauro by Raymond R. Wiss, Thomas K. Bouregy, Jr., Hackensack, NJ, for Donjon Marine Company, Inc.
Murphy & O'Connor by Edward R. Murphy, Haddonfield, NJ, for Breakwaters International, Inc.
Following a commercial diving accident in which plaintiff Layne Foulk became injured, plaintiffs instituted this action sounding in negligence and the general maritime law. The original complaint named as defendants Breakwaters International, Inc. ("Breakwaters") and Donjon Marine Company, Inc. ("Donjon"), respectively, Mr. Foulk's employer and the owner of the barge from which Mr. Foulk was working at the time of the accident. Plaintiffs thereafter amended their complaint to name only Donjon as a defendant. Donjon responded by naming Breakwaters as a third-party defendant and later amended its third-party complaint to add a claim against Breakwaters and in favor of plaintiffs.
The parties now cross-move for partial summary judgment on the issue of Mr. Foulk's seaman status. Because this Court finds that Mr. Foulk is, as a matter of law. not a Jones Act seaman, it will grant Breakwaters' motion for partial summary judgment and deny Donjon's motion for partial summary judgment on the seaman status issue.
The Borough of Avalon, New Jersey hired Breakwaters to install an artificial reef off its coast to prevent beach erosion. On May 13, 1993, Breakwaters contracted with Donjon to provide material barges, tugs, a floating crane barge, a barge crew, and a dive crew for the project. On June 30, 1993, since Donjon's divers were non-union and Breakwaters needed to fulfill a union labor project requirement, the parties reversed the original arrangement such that Breakwaters rather than Donjon would supply the commercial dive crew. See Creter Dep. at 48-49; Witte Dep. at 62.
Construction began on July 10, 1993 under Breakwaters' direction. Donjon's crane barge, the Farrell 256, was to install the artificial reef from the sea with the help of an underwater dive crew. Mr. Foulk and three other commercial divers were to assist in the placement of the artificial reef by spotting its location and unhooking pieces of the reef from the crane once they had been placed. For the duration of the project, the dive crew was to sleep ashore and report each morning to the Farrell 256 by motor launch. In addition to its use as a crane barge, the Farrell 256 was to serve as a dive station for the dive crew, holding air compressors, a communications box, and other commercial diving equipment.
On the first day of construction, Breakwaters successfully installed three pieces of the artificial reef according to plan. To connect these to each other and to a pre-existing jetty, the barge crew re-rigged the crane with a "clamshell bucket," filled it with several tons of stone, and lowered it into the water near the jetty. Mr. Foulk swam over to the bucket and began to guide the stone drop when he found himself being pushed through the water towards the jetty. Before he could take evasive action, the clamshell bucket pinned Mr. Foulk against the jetty and severely injured him. Soon after, the Coast Guard arrived and rushed Mr. Foulk to a local hospital where doctors treated him for a crushed right arm, rib fractures, a collapsed lung, and an injured right shoulder.
On January 6, 1995, while on disability, Mr. Foulk and his wife instituted this action against Donjon and Breakwaters sounding in negligence and the general maritime law. On February 14, 1995, plaintiffs amended their complaint to name only Donjon as a defendant. On March 10, 1995, Donjon answered the amended complaint and named Breakwaters as a third-party defendant. Magistrate Judge Joel B. Rosen, by order dated June 1, 1995, amended Donjon's answer and third-party complaint to add a claim against Breakwaters in favor of plaintiffs. The parties now cross-move for partial summary judgment with respect to plaintiff's seaman status.
Under Federal Rule of Civil Procedure 56(c), "summary judgment is proper `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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A non-moving party may not rest upon mere allegations, general denials, or vague statements in opposition to a summary judgment motion. If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir.1993); Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890-91 (3d Cir.1992).
It is not the role of the judge at the summary judgment stage to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court must draw all inferences in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's version as true. See Pastore v. Bell Tel. Co., 24 F.3d 508, 512 (3d Cir.1994).
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A genuine issue of material fact for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial. could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610. 618 (3d Cir. 1987) (Becker, J., concurring).
The Jones Act provides a cause of action in negligence for "any seaman" injured "in the course of his employment." 46 U.S.C.App. § 688. Prior to the Jones Act, general maritime law only entitled seamen to "maintenance and cure" from their employer for injuries suffered "in the service of the ship," and to recover damages from the vessel's owner for injuries they received "in consequence of the unseaworthiness of the ship." The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903). There was no remedy in negligence against a seaman's employer, see id., consistent with the prevailing conception of the master and servant relationship of the time. See W. Page Keeton, Prosser and Keeton on Torts § 80, at 569 (5th ed.1984) ().
With the passage of the Jones Act, Congress removed this bar to suit and secured for seamen certain legal advantages when injured. As Justice Story explained, seamen "are emphatically the wards of the admiralty" because they "are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour." Harden v. Gordon, 11 F. Cas. 480, 485, 483 (C.C.Me.1823). And as the Supreme Court later elaborated, these remedies "`grow[] out the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to the sea in ships are subjected.'" McDermott Int'l. Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991) (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104, 66 S.Ct. 872, 882, 90 L.Ed. 1099 (1946) (Stone, C.J., dissenting)).
The Jones Act, however, fails to define the term "seaman," leaving unclear exactly which maritime workers are entitled to this special protection. In Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254 (1934), the Supreme Court concluded that Congress intended the term to have its established meaning under the general maritime law of the time. See id. at 157-59, 55 S.Ct. at 47 (). Similarly, in Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944), the Court suggested that "every one is entitled to the privilege of a seaman who like seamen, at all times contributes to the labors about the operation and welfare of the ship when she is upon a voyage." Id. at 572, 64 S.Ct. at 751 (quoting The Buena Ventura, 243 F. 797, 799 (S.D.N.Y.1916)).
In 1927, with the passage of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), Congress provided some content to the Jones Act seaman requirement. The LHWCA provides scheduled compensation (and the exclusive remedy) for injury to a broad range of land-based maritime workers but explicitly excludes from its purview "a master or member of a crew of any vessel." 33 U.S.C. § 902(3)(G). As the Jones Act and the LHWCA are mutually exclusive compensation regimes, "`master or member of a crew' is a refinement of the term seaman in the Jones Act; it excludes from LHWCA coverage those properly covered under the Jones Act." Wilander, 498 U.S. at 347, 111 S.Ct. at 813. Injured workers who fall under neither of these categories may still recover under state workers'...
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Foulk v. Donjon Marine Co., Inc.
...had insufficient durational connections to the barge to be considered a "seaman" covered by the Jones Act. Foulk v. Donjon Marine Co., Inc., 961 F.Supp. 692, 698 (D.N.J.1997). We do not agree and will I. Facts In April 1993, the Borough of Avalon, New Jersey, contracted with Breakwaters to ......
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Pederson v. Powell-Duffryn Terminals, Inc., CIV. 97-3462 (WHW).
...that Foulk was not a seaman because his ten-day assignment was temporary and his connection with the vessel not substantial. Foulk, 961 F.Supp. 692, 698 (D.N.J.). In a reversal of the district court's grant of summary judgment to the defendant, the Third Circuit wrote that the durational el......
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Pederson v. Powell-Duffryn Terminals, Inc.
...that Foulk was not a seaman because his ten-day assignment was temporary and his connection with the vessel not substantial. Foulk, 961 F. Supp. 692, 698 (D.N.J.). In a reversal of the district court's grant of summary judgment to the defendant, the Third Circuit wrote that the durational e......
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Foulk v. Donjon Marine Co., Inc., Civil Action No. 95-323(JEI).
...motion for partial summary judgment finding that Mr. Foulk is not a seaman within the meaning of the Jones Act. See Foulk v. Donjon Marine Co., 961 F.Supp. 692 (D.N.J.1997). Consequently, plaintiffs' only avenue of recovery against Breakwaters is the LHWCA.1 Plaintiffs may still recover aga......