Juneau Tanker Corp. v. Sims, s. 92-03471

• Decision Date: 01 December 1993
• Docket Number: Nos. 92-03471,92-03521,s. 92-03471
• Citation: 627 So.2d 1230
• Parties: 18 Fla. L. Weekly D2565 JUNEAU TANKER CORPORATION, a foreign corporation, Appellant/Cross-Appellee, v. Raymond G. SIMS, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1230

627 So.2d 1230

18 Fla. L. Weekly D2565

JUNEAU TANKER CORPORATION, a foreign corporation Appellant/Cross-Appellee, v. Raymond G. SIMS, Appellee/Cross-Appellant.

Nos. 92-03471, 92-03521.

District Court of Appeal of Florida Second District.

Dec. 1, 1993.

Dinita L. James, Keith E. Rounsaville and Marie Tomassi of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, for appellant/cross-appellee.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, and Wagner, Vaughan & McLaughlin, P.A., Tampa, for appellee/cross-appellant.

PER CURIAM.

In this maritime personal injury action, defendant Juneau Tanker Corporation raises two points on appeal. Plaintiff Raymond C. Sims cross-appeals, arguing that the trial court erred in denying his motion for attorney's fees. We affirm both points on the main appeal but reverse on the cross-appeal.

With regard to defendant's first point on appeal, we conclude that the trial court, in granting plaintiff's motion for summary judgment, properly ruled that plaintiff was entitled to the benefit of seaman status under the Jones Act, 46 U.S.C. App. Sec. 688. Our review of the record convinces us that the material facts before the trial court on summary judgment, though somewhat involved, were nonetheless wholly undisputed and pointed only to one possible conclusion. Thus, summary judgment was proper. See Merryman v. Mattheus, 529 So.2d 727, 730 (Fla. 2d DCA 1988).

In determining whether a worker is entitled to seaman status for purposes of the Jones Act, courts consider the following three factors (1) That he is assigned permanently to, or performs a substantial part of his work on, (2) a vessel in navigation and (3) that the capacity in which he is employed, or the duty which he performs, contributes to the function of the vessel or the accomplishment of its mission.

Graham v. Milky Way Barge, Inc., 824 F.2d 376, 389 (5th Cir.1987) (citing Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959)). See McDermott International, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991) (approving Robison test adopted by Fifth Circuit). Defendant on appeal does not challenge the trial court's conclusion under the third factor. Rather, defendant argues that under the first two factors there was evidence from which a jury could have found that plaintiff lacked a sufficient connection to the Overseas Juneau and that the Overseas Juneau was not in navigation at the time of his injury. We do not agree under the instant facts.

Plaintiff worked for a Tampa-based labor pool that contracted with ship owners to supply unskilled laborers for various maintenance tasks. In early July 1989, defendant hired plaintiff and other workers from the labor pool to perform maintenance work on the Overseas Juneau, a 900-foot oil tanker. On July 5, 1989, plaintiff and his coworkers were flown to San Francisco, where they joined the ship. For the next three days, plaintiff and his coworkers, working thirteen to sixteen hours a day while the ship was in port, performed such tasks as ship painting and checking and replacing anodes, which are blocks of zinc placed inside oil tanks to prevent corrosion. They slept and ate all their meals onboard.

On July 9, with plaintiffs and his coworkers still aboard, the ship departed for Portland, Oregon, where it was scheduled to undergo repairs in preparation for its next scheduled trip. While en route to Portland, plaintiff and his coworkers spent twelve to twenty hours a day cleaning the ship tanks. Upon arrival in Portland on July 15, the ship was moored to a wet berth in sheltered water and placed on shore power. Though most of the regular crew were temporarily laid off for the one-month period in which the repairs were being made, plaintiff and his coworkers remained on board, performing such tasks as ship painting and cleaning tanks. During this period they continued to sleep aboard the ship, leaving the ship only for meals.

On July 31, while still in Portland, plaintiff and his coworkers were checking and replacing anodes in the tanks under the direction of the ship's second mate. A foothold broke while plaintiff was attempting to exit a tank. He fell and injured his knee, but continued working until August 12, when a doctor examined him and determined he was unfit for continued work. Plaintiff then returned to Tampa.

Meanwhile, the ship repairs were completed shortly thereafter. After the ship passed inspection on August 16, it sailed for Valdez on August 20 to take on a load...