Ramos v. Universal Dredging Corp.

• Decision Date: 17 September 1982
• Docket Number: Civ. No. 77-314.
• Parties: Raymond RAMOS, Plaintiff, v. UNIVERSAL DREDGING CORP., Defendant.
• Court: U.S. District Court — District of Hawaii

547 F. Supp. 661

Raymond RAMOS, Plaintiff, v. UNIVERSAL DREDGING CORP., Defendant.

Civ. No. 77-314.

United States District Court, D. Hawaii.

September 17, 1982.

Christopher P. McKenzie, Honolulu, Hawaii, for plaintiff.

Terence J. O'Toole, Phillip L. Deaver, Carlsmith, Carlsmith, Wichman & Case, Honolulu, Hawaii, for defendant.

DECISION

FONG, District Judge.

The essential facts in this case are not disputed by the parties. Plaintiff Ramos was hired by defendant Universal Dredging on or about February, 1975, when he was dispatched by Local 3 of the Operating Engineers Union. He was hired as a deckhand, and was initially assigned to the dredge SAN DIEGO. In August of 1975, he was assigned to the dredge EXPLORER, where he worked continuously until he was injured.

The EXPLORER was being used in connection with the construction of a reef runway which was to be part of the Honolulu International Airport. The dredge cut soil, rocks and coral from the ocean floor and pumped the material to the levee on shore through pipes extending over the surface of the water.

The dredge was held stationary by two anchors out forward of the dredge and two metal columns lowered to the ocean floor at the stern of the dredge. The dredge had no engine and was propelled by raising the metal columns ("spuds") and pulling the dredge forward by the anchor lines. This was done several times a day as the coral was cut. Twice a week, an anchor scow moved the anchor further out in front.

Ramos worked on one of the three eight-hour shifts on board the EXPLORER, returning home at night. His main duties were to maintain the pipes, and also work the anchors as needed. He also performed general maintenance of the dredge, helped repair the pumping engines, and checked to see that the dredge lights were operational.

On September 29, 1975, while the dredge was undergoing repairs to its pump engine, Ramos allegedly slipped on the stairway of the engine room of the EXPLORER while carrying a 250-pound engine part. As a result of the accident, Ramos suffered injuries to the right side of his back for which he is seeking compensation under the Jones Act.

Ramos previously filed a claim under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), and it was determined by an administrative law judge that the coverage under the LHWCA extended to Ramos. This determination was reversed by the Benefits Review Board, which in turn was reversed and remanded by the Ninth Circuit. 653 F.2d 1353.

Ramos is now before this court with a motion for summary judgment, seeking to have him declared to be a "seaman" within the Jones Act as a matter of law. Universal has filed its cross motion for continuance of the trial and the hearing on the motion for summary judgment, seeking to have this matter continued until the Benefits Review Board has had the opportunity to review the administrative law judge's decision in light of the Ninth Circuit's ruling. Ramos has in turn filed a further motion to strike all references to the LHWCA.

For the reasons stated below, Ramos' motion for summary judgment is granted and the cross motion to continue, as well as the motion to strike are denied.

DISCUSSION:

At the outset, it should be noted that the issue of whether a claimant is a "seaman" is normally a matter for a finder of fact to determine after trial. Senko v. La Crosse Dredging Co., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1956), reh. den., 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 (1956). The matter may be taken from the trier of fact, however, where the record demonstrates that reasonable persons could not draw conflicting inferences which might lead to a different conclusion. Landry v. Amoco Production Co., 595 F.2d 1070 (5th Cir. 1979); Hill v. Diamond, 311 F.2d 789 (6th Cir. 1962); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966). We turn now to a consideration of plaintiff's Motion for Summary Judgment.

Is the dredge a "Vessel"?

The term "vessel", as it is used in the context of the Jones Act, is very liberally construed. A "vessel", then, may include special purpose structures not usually employed as a means of transport but designed to float on water. Offshore Company v. Robison, 266 F.2d 769 (5th Cir. 1959). A review of the authorities very quickly makes it clear that a dredge such as the one in the instant case is a "vessel" within the meaning of the Jones Act. Senko v. LaCrosse Dredging Corp., supra; Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383 (6th Cir. 1953); Lawrence v. Norfolk Dredging Co., 319 F.2d 805 (4th Cir. 1963), cert. den., 375 U.S. 952, 84 S.Ct. 443, 11 L.Ed.2d 313 (1963).

While not disputing the general proposition stated above, defendant argues that this "special purpose doctrine" does not apply to vessels undergoing significant repairs. Defendant, however, does not cite to any legal authority in support of this proposition, and a review of the authorities in fact indicate that the issue of whether a vessel is undergoing significant repairs is more properly addressed to the question of whether the vessel is "in navigation" under the three prong test discussed below.

Is the plaintiff a "Seaman"?

The classic test in this area is a three pronged one: (i) the vessel on which the claimant is employed must be in navigation, (ii) there must be a more or less permanent connection with the vessel, and (iii) the claimant must be aboard primarily to aid in navigation. Bodden v. Coordinated Caribbean Trans., Inc., 369 F.2d 273 (5th Cir. 1966); see, Bullis v. Twentieth Century-Fox Film Corp., 474 F.2d 392 (9th Cir. 1973).

A. Vessel in Navigation.

This prong of the test is quite liberally applied, to the point where the vessel does not have to be actually plying the waters for it to be "in navigation". Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 735, 2 L.Ed.2d 754 (1958) (Held, a jury question as to whether a tug was "in navigation" when tug was lashed to a barge which was in turn moored to a wharf); Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), reh. den., 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 (1957):

If petitioner were a member of the dredge's crew during travel, he would not necessarily lack that status during anchorage. Even a transoceanic liner may be confined to berth for lengthy periods, and while the ship is kept in repair by its "crew". There can be no doubt that a member of its crew would be covered by the Jones Act during this period, even though the ship was never in transit during his employment. In short, the duties of a man during a vessel's travel are relevant in determining whether he is a "member of a crew" while the vessel is anchored. Thus, the fact that this dredge was connected to the shore cannot be controlling.

Id. 352 U.S. at 373, 77 S.Ct. at 417.

Likewise, the mere fact that the vessel is undergoing temporary repairs will not take it out of navigation. Doucet v. Wheless Drilling Co., 467 F.2d 336 (5th Cir. 1972); Bodden v. Coordinated Caribbean Transport, Inc., supra.

In the instant case, it appears that the dredge's pump engine was being repaired at the time the injury occurred. Defendant therefore argues that this took the dredge out of navigation.

In Doucet, supra, a submersible drilling barge engaged in drilling operations was damaged in a hurricane. Most of the damage was to the equipment and not to the barge itself. Nevertheless, the barge was towed to shore and drawn up to the bank for repairs. The plaintiff in that suit, who was a member of the drilling crew, was injured while engaged in making repairs to the barge on the first day the repairs commenced. The district court there granted summary judgment in favor of the plaintiff on the question of whether he was a member of a crew of a vessel in navigation under the Jones Act.

The Fifth Circuit affirmed the District Court, noting that the barge was still partially afloat, the repairs were chiefly to the drilling equipment, the time involved was short (Sept. 16-29), and the vessel quickly returned to its drilling function as soon as a job contract was obtained although prior to the completion of repairs. 467 F.2d at 339.

The instant case is indistinguishable from Doucet. The dredge was afloat in Keehi Lagoon, the repairs being conducted were to its pumping engine, the time involved was relatively short ("from September 25 to early October" — Defendant's memorandum in opposition to plaintiff's motion for summary judgment), the plaintiff was involved in making the repairs to the dredge, and the dredge returned to its function as soon as the repairs were complete.

B. Primarily to Aid Navigation.

The Plaintiff argues that this test is liberally construed by the courts, and that this test is met if the worker is found to have "contributed to the function of the vessel. The Defendant proposes a more narrow reading of this prong of the test.

It is clear that the term "seaman" is not limited only to those who "hand, reef and steer". Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944). In Robison, supra, the Fifth Circuit, citing a First Circuit case (Carumbao v. Cape Cod S.S. Co., 123 F.2d 991 (1st Cir. 1941)), noted that even a cook or an engineer can be considered "in aiding navigation". The court further noted other cases that have extended the "in aid of navigation" test to oil field workers aboard a submersible drilling barge (Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed.2d 775 (1955)), a handyman on a dredge anchored to shore (Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), reh. den., 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724), a pile driver assigned to a radar station tower being constructed at sea (Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958)), an employee doing odd jobs around his employer's wharf (Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (19...