Potashnick-Badgett Dredging Inc. v. Whitfield

• Decision Date: 18 October 1972
• Docket Number: TRANS-STATE,Nos. 70-329,POTASHNICK-BADGETT,70-330,s. 70-329
• Citation: 269 So.2d 36
• Parties: DREDGING INCORPORATED, Appellant, v. Alfred B. WHITFIELD, Appellee.DREDGING INCORPORATED, Appellant, v.DREDGING COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 36

269 So.2d 36

1977 A.M.C. 527

POTASHNICK-BADGETT DREDGING INCORPORATED, Appellant, v. Alfred B. WHITFIELD, Appellee.

POTASHNICK-BADGETT DREDGING INCORPORATED, Appellant, v. TRANS-STATE DREDGING COMPANY, a Florida corporation, Appellee.

Nos. 70-329, 70-330.

District Court of Appeal of Florida, Fourth District.

Oct. 18, 1972.

Reed A. Bryan, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.

Alan R. Schwartz, of Horton & Schwartz, and Beckham & McAliley, Miami, for appellee-Alfred B. Whitfield.

E. S. Corlett, III, of Corlett, Meritt, Killian & Okell, Miami, for appellee-Trans-State Dredging Co.

CROSS, Judge.

We have consolidated the above appeals by appellant-defendant, Potashnick-Badgett Dredging, Inc., from final judgments entered in favor of appellee-plaintiff, Alfred B. Whitfield, and appellee-cross-defendant, Trans-State Dredging Company, in an action under Federal Maritime Law for damages for personal injuries. We affirm.

Defendant Potashnick-Badgett Dredging, Inc. (Potasnick), had been engaged to dredge a channel in the Gulf of Mexico and up to Florida Power Company's power plant on shore at Red Level, in Levy County, Florida. The purpose of the project was to provide access to the plant for barges and other boats carrying fuel for the plant. In connection with the operation, Potashnick had rented a floating dredge and other items from cross-defendant Trans-State Dredging Company (Trans-State).

Plaintiff was employed as a mate on board the dredge. While the dredge was operating several miles out in the Gulf of Mexico, one of the dredge's discharge pipes became plugged with rocks. The procedure used to unplug the pipe was to lift one end of it by means of a cable in order to knock or flush out the material lodged therein. As the pipe was being lifted, the cable which was holding it parted, allowing the pipe to roll over onto plaintiff, injuring him.

Plaintiff then commenced actions against both Potashnick and Trans-State under federal maritime law. ¹ Count I of the complaint alleged personal injuries proximately caused by the negligence of plaintiff's employer; Count II of the complaint alleged that plaintiff's injuries were caused by the unseaworthiness of the vessel; and Count III of the complaint sought the maritime remedy of maintenance and cure.

Defendant Potashnick answered the complaint, generally denying the allegations thereof, and asserting maritime law to be inapplicable and alleging plaintiff's sole remedy to be under Florida's Workmen's Compensation Act, through which plaintiff had already received benefits. The answer also set forth the affirmative defenses of contributory negligence and assumption of risk. In addition, Potashnick cross-claimed against Trans-State for indemnity.

Trans-State, in answer to Potashnick's cross-claim, asserted that the rental agreement for the dredge between Potashnick and Trans-State was a bare boat charter agreement.

Prior to trial, Trans-State moved for and was granted a summary judgment in its favor and against the plaintiff Whitfield.

The cause finally came on for trial, and at the conclusion of all the evidence, the trial court directed a verdict in favor of cross-defendant Trans-State as to Potashnick's cross-claim for indemnity, final judgment being subsequently entered for Trans-State. The trial court also directed a verdict in favor of plaintiff Whitfield against Potashnick on the issues that plaintiff was a seaman, and that the dredge was a vessel within the meaning of the term in maritime law. The issues as to negligence under the Jones Act, unseaworthiness, proximate cause, and damages were submitted to the jury. The jury returned a general verdict against Potashnick for $57,776.00 in favor of Whitfield, upon which the court entered final judgment. Potashnick then moved for a new trial, which was denied. These appeals followed.

We have for determination (1) whether the trial court erred in determining as a matter of law that plaintiff was a seaman, ² (2) whether the court erred in determining as a matter of law that the rental agreement between Potashnick and Trans-State constituted a bare boat charter; and (3) whether the jury verdict in favor of plaintiff was excessive.

Initially, we point out that state courts can exercise jurisdiction over actions arising under the Jones Act and general maritime law, but federal principles of law control such actions and must be applied by both trial and appellate courts. Boudreau v. Boat Andrea G. Corp., 350 Mass. 473, 215 N.E.2d 907 (1966); Arundel Corp. v. Jasper, 219 Md. 519, 150 A.2d 415 (1959); cf. Atlantic Coast Line R. R. v. Barrett, 101 So.2d 37 (Fla.1958).

I.

Turning now to the first issue, several criteria must be met before a maritime worker may properly be considered a seaman. First, the worker must be on board a 'vessel.' E.g., Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946). Second, the vessel must be in 'navigation' or 'plying in navigable waters.' Swanson v. Marra Bros., Inc., supra; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940). The third criterion is that the worker have a more or less permanent connection with the vessel. Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383 (6th Cir. 1953). The fourth is that the worker be aboard 'primarily to aid in navigation.' Wilkes v. Mississippi River Sand & Gravel Co., supra.

It is clear that a dredge may, in appropriate circumstances, be held to fulfill the first requirement, that of being a vessel. E. g., Gahagan Constr. Corp. v. Armao, 165 F.2d 301 (1st Cir. 1948) cert. denied 333 U.S. 876, 68 S.Ct. 905, 92 L.Ed. 1152; Chesser v. General Dredging Co., 150 F.Supp. 592 (S.D.Fla.1957); Early v. American Dredging Co., 101 F.Supp. 393 (E.D.Pa.1951). It is likewise clear that in order to be considered to be 'in navigation' a vessel need not be in motion at the time in question, as long as it is performing its particular function in waters that are navigable. ³ McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953). Being hired as a regular mate is sufficient to satisfy the third criterion.

The last requirement, that the worker be aboard primarily to aid in navigation, is satisfied if it can be shown that the capacity in which the worker was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or contributed to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir. 1959).

Stated somewhat differently, the test of whether a given individual is or is not a seaman has been characterized as whether he is employed ⁴ on a vessel and is performing duties traditionally performed by seamen. E.g., Producers Drilling Company v. Gray, 361 F.2d 432 (5th Cir. 1966). See also C. Gilmore & C. Black, The Law of Admiralty 282 (1957).

However, where the undisputed facts conclusively demonstrate that the individual concerned is or is not a seaman, the trial court may properly remove the issue from the jury's consideration by directing a verdict as to the individual's status. E.g., Producers Drilling Co. v. Gray, supra; Rotolo v. Halliburton Co., 317 F.2d 9, 12 (5th Cir. 1963) cert. denied 375 U.S. 852, 84 S.Ct. 111, 11 L.Ed.2d 79; Stanley v. Guy Scroggins Constr. Co., 297 F.2d 374, 378 (5th Cir. 1961); Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42 (5th Cir. 1960); Offshore Company v. Robison, supra, 266 F.2d at 778; cf. Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir. 1969); McCown v. Humble Oil & Refining Co., 405 F.2d 596 (4th Cir. 1969); Marine Drilling Co. v. Autin, 363 F.2d 579-580 (5th Cir. 1966).

In the instant case, the material facts concerning plaintiff's status are undisputed. Plaintiff was an experienced barge worker. He was hired out of a union hiring hall at Crystal River, Florida, some thirteen days before the accident. Plaintiff lived on shore, as the dredge had no facilities for sleeping or eating. The dredge had no motive power of its own.

Plaintiff was employed as a mate on the dredge, earning $2.09 an hour, and working 8-hour shifts. His duties as a mate included overseeing the operation of two smaller derrick barges which were used in the dredging operation, moving the dredge's anchors when necessary, checking the shore lines and shifting spill pontoons when required. Apparently, plaintiff's duties also included helping to unstop the dredge's suction pipe when it became plugged with rocks or other material.

As stated above, at the time of the accident, the dredge was digging a channel several miles out from shore in the Gulf of Mexico. The suction pipe became plugged, and during the attempt to unplug it, the cable holding the pipe parted, allowing the pipe to roll onto plaintiff, crushing his foot, and allegedly causing hip and back injuries as well.

From the above, it is evident that the dredge in question was in fact a 'vessel.' McKie v. Diamond Marine Co., supra; Chesser v. General Dredging Co., supra; C. Gilmore & C. Black, supra at 30. The dredge was 'in navigation,' being in operation some miles out in the Gulf of Mexico, in waters 15-22 feet deep. Plaintiff did have a more or less permanent connection with the vessel, having been hired as a regular mate. His duties were primarily in aid of navigation, in the sense of contributing to the operation and welfare of the vessel. Likewise, it is evident that his duties included jobs traditionally performed by seamen.

The instant case is to be distinguished from Sikes v. Fort Myers Construction Company, 191 So.2d 265 (Fla.1966), and Covington v. Standard Dredging Corp., 61 So.2d 644 (Fla.1952). In both cases, dredge workers were determined by the Florida Supreme Court not to be seamen. However, in Sikes, the dredge was engaged in digging an...