Reeves v. Mobile Dredging & Pumping Co., Inc.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: MANSMANN; NYGAARD, ALITO, ROTH and LEWIS
• Citation: Reeves v. Mobile Dredging & Pumping Co., Inc., 26 F.3d 1247 (3rd Cir. 1994)
• Decision Date: 15 July 1994
• Docket Number: No. 93-5553,93-5553
• Parties: Albert C. REEVES; Dolores Reeves, his wife, v. MOBILE DREDGING & PUMPING COMPANY, INC., Albert C. Reeves and Dolores Reeves, Appellants.

Page 1247

26 F.3d 1247

1995 A.M.C. 352

Albert C. REEVES; Dolores Reeves, his wife, v. MOBILE DREDGING & PUMPING COMPANY, INC. Albert C. Reeves and Dolores Reeves, Appellants.

No. 93-5553.

United States Court of Appeals Third Circuit.

Argued April 12, 1994.

Decided June 13, 1994.

Sur Petition for Rehearing July 15, 1994.

David T. Lewis, George F. Kugler, Jr. (Argued), Archer & Greiner, Haddonfield, NJ, for appellants.

Mark F. Muller (Argued), Freehill, Hogan & Mahar, New York City, for appellee.

Before: BECKER, MANSMANN and SCIRICA, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

On July 20, 1990, Albert C. Reeves was in the process of cleaning with a hose the cutter head on the dredging ship, the Becky Beth. Reeves was thrown off the dredge onto a blacktop ramp four to six feet below, suffering serious personal injuries. At that time, the Becky Beth was assigned to a non-navigable lake entirely within the Commonwealth of Pennsylvania.

Reeves filed suit in the United States District Court for the District of New Jersey against Mobile Dredging & Pumping Company, Inc., seeking relief under the Jones Act. ¹ Although Jones Act coverage requires that accidents occur on navigable waters, Reeves argues that under the "Fleet Seaman Doctrine" a seaman does not lose his seaman status when he is temporarily assigned to another vessel on non-navigable waters; and thus, because he had been assigned to a job on navigable water by a previous employer, he is entitled to coverage.

We have yet to adopt the Fleet Seaman Doctrine, and we take this opportunity to do so now. Nonetheless, because Reeves' only assignment with Mobile was on the Becky Beth, which was on non-navigable waters, and because his employment with Mobile was totally unrelated to his employment at Great Lakes, we hold that the Fleet Seaman Doctrine does not afford him relief. We also take this opportunity to re-examine our test for seaman status and modify it to bring it in line with recent Supreme Court precedent. We will affirm the district court's grant of summary judgment to the employer/shipowner.

I.

Mobile Dredging & Pumping Company, Inc., owner of the Becky Beth, employed Reeves as a welder for a dredging project that was to be performed on Lake Towhee in Quakertown, Pennsylvania. Reeves is a maritime dredge welder and has been a member of Local Marine Union 25, Operating Engineer's Marine Division, since 1956. Apparently the union places its members in their various positions when it finds openings.

Prior to his employment with Mobile Dredging, Great Lakes Dredge & Dock Company employed Reeves on a vessel moored on the Staten Island Sound. On January 2, 1990, Reeves was laid off temporarily. Pursuant to the union contract, he had the right to return to his job when work again became available. He was on first call with Great Lakes in late May of 1990 when the union asked him to go to work for Mobile Dredging on a temporary, two-week basis. For reasons unique to his contract with the union, Reeves could not reject the offer without jeopardizing future employment opportunities with the union. ²

At the conclusion of his two week tenure, Mobile asked Reeves to stay on to replace another employee who had become ill. As a result, Reeves continued to work for Mobile Dredging as a deckhand for six more weeks.

The facts of the accident itself are not in dispute. Reeves was assigned the task of cleaning the dredge's cutter head which was full of mud and silt from the lake's bottom. Usually employees cleaned the cutter head with a 1- 1/2 inch fire hose attached to a small deck pump. For some reason a deck pump was not available, so Reeves attached a 2- 1/2 inch fire hose to a larger stationary pump. The large pump created an amount of pressure in the hose strong enough to throw Reeves off the dredge and onto a blacktop covered ramp approximately four to six feet below the dredge.

As a result of the injuries Reeves received from the fall, he filed a complaint in the United States District Court for the District of New Jersey. ³ The district court granted Mobile Dredge's motion for summary judgment, finding that the Becky Beth was on non-navigable waters thereby precluding Jones Act benefits. ⁴ We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II.

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply....

Jones Act, 46 U.S.C. Sec. 688. In effect the Jones Act provides a cause of action in negligence for "any seaman" injured "in the course of his employment," the liability for which rests with the employer. Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231, 235-36 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 329, 116 L.Ed.2d 270 (1991).

Establishment of seaman status is the threshold for a Jones Act trial. (The other elements, "injury" and "in the course of employment," are typically easily satisfied.) It has been nearly 20 years since we examined our test set forth for the establishment of seaman status. We held that an employee claiming seaman status must establish:

"(a) that the ship be in navigation; (b) that there be a more or less permanent connection with the ship; and (c) that the worker be aboard primarily to aid in navigation."

Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36 (3d Cir.1975), (quoting M. Norris, The Law of Seaman Sec. 668 at 301 (3d

ed. 1970)), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976). See also Evans v. United Arab Shipping Co., 4 F.3d 207, 214-15 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1065, 127 L.Ed.2d 385 (1994). We acknowledge that our test is somewhat dated, and informed by more recent Supreme Court precedent, we now set about to modify its course. ⁵

In a recent Supreme Court decision, the Court reexamined seaman status and abandoned the "member of the crew" and "aid in navigation" tests, setting forth a new standard solely in terms of the employee's connection to a vessel in navigation. ⁶ McDermott Int'l Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991). In McDermott the Court stated:

The key to seaman status is employment-related connection to a vessel in navigation. We are not called upon here to define this connection in all details, but we hold that a necessary element of the connection is that a seaman perform the work of a vessel. In this regard, we believe the requirement that an employee's duties must "contribut[e] to the function of a vessel or to the accomplishment of its mission" captures well an important requirement of seaman status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work.

Id. at 355, 111 S.Ct. at 817 (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959)).

Therefore, in order to comply with McDermott, we must abandon the "aid in navigation" element of our test and replace it with the apropos language. Hence, for Reeves to establish himself as a seaman, he must demonstrate that at the time of his injury: (a) he maintained a more or less permanent connection on (b) a vessel in navigation; and (c) that his employment contributed to the function of the vessel or the accomplishment of its mission.

Here, the parties do not dispute that Reeves had an employment relationship with the defendant Mobile Dredging at the time of the accident; nor do they dispute that he was injured in the course of his employment. Further, the parties concur that his employment with Mobile Dredging was on a vessel in non-navigable water. The problem here with regard to his status as a seaman is whether Reeves' former employment with Great Lakes on navigable waters served to give him "seaman status" during his temporary assignment with Mobile Dredging on non-navigable waters, under the Fleet Seaman Doctrine. As constitutive of this inquiry, we will first examine the permanency and nature of Reeves' connection with the Becky Beth.

A.

There is seemingly an unresolved issue regarding whether the "permanent connection" requirement for seaman status has survived McDermott; however, because we find that Reeves would satisfy that requirement under either the pre- or post-McDermott analysis, we need not decide this issue.

The Fifth Circuit has maintained that the "permanent connection" requirement has survived McDermott. Bach v. Trident S.S. Co., 920 F.2d 322 (5th Cir.1991), vacated and remanded, 500 U.S. 949, 111 S.Ct. 2253, 114 L.Ed.2d 706, reaff'd on remand, 947 F.2d 1290 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1996, 118 L.Ed.2d 592 (1992). We have acknowledged this position, but have failed to reach the issue. Evans v. United Arab Shipping Co., 4 F.3d 207, 214-15 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1065, 127 L.Ed.2d 385 (1994). The Supreme Court has held that it is a jury determination whether the injured worker was permanently attached to and employed by the vessel as a member of its crew. Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 372, 77 S.Ct. 415, 416, 1 L.Ed.2d 404 (1957).

In Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir.1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976), we stated: "There must be a more or less permanent connection or attachment between the vessel and the worker as opposed to a temporary relationship." In Mach v. Pennsylvania R.R. Co., 317 F.2d 761, 764 (3d Cir.1963), we held: "The duration of service for and upon a vessel may determine whether shipboard work which is not normally performed by a ship's company makes the worker a crewman, but lack of long continued attachment to the vessel cannot, as a matter of law,...