Riverport Ins. Co. v. C&M Indus., Inc.
| Decision Date | 25 February 2014 |
| Docket Number | Civil Docket No. CL12-5624 |
| Court | Circuit Court of Virginia |
| Parties | RE: Riverport Insurance Company v. C&M Industries, Inc., JNB Marine, Inc., and Elgin Stodghill |
Nash Bilisoly, Esq.
Dustin M. Paul, Esq.
Vandeventer Black LLP
101 West Main Street, Suite 500
Norfolk, VA 23510
Christopher A. Abel, Esq.
Willcox & Savage, PC
Wells Fargo Center
440 Monticello Avenue, Suite 2200
Norfolk, VA 23510
Richard J. Serpe, Esq.
Law Offices of Richard J. Serpe PC
Crown Center, Suite 310
580 East Main Street
Norfolk, VA 23510
Henry P. Bouffard, Esq.
Law Office of Henry P. Bouffard PC
440 Monticello Avenue, Suite 1827
Norfolk, Virginia 23510
Aurora N. Tulshan, Esq.
John P. Orzel, Esq.
Carroll McNulty Kull, LLC
P.O. Box 650
Basking Ridge, NJ 07920
Michael A. Varner, Esq.
Brown Sims
1177 West Loop South
Tenth Floor
Houston, TX 77027
Albert H. Poole, Esq.
Paul R. Schmidt, Esq.
Poole Mahoney, PC
4705 Columbus Street
Virginia Beach, VA 23462
Alan B. Rashkind, Esq.
Furniss, Davis, Raskhind & Saunders, PC
6160 Kempsville Circle
Suite 341B
Norfolk, VA 23502
O.L. Gilbert, Esq.
Gilbert, Albiston & Keller, PLC
Crown Center, Suite 330
580 East Main Street
Norfolk, VA 23510
William J. Carter, Esq.
Kelly M. Lippincott, Esq.
Carr Maloney, PC
2000 L Street NW, Suite 450
Washington, DC 20036
Matthew Berkowitz, Esq.
William Carter, Esq.
Carr Maloney
2000 L Street NW, #450
Washington, DC 20036
Ralph Rabinowitz, Esq.
Law Office of Ralph Rabinowitz
Town Point Center, Suite 204
Norfolk, VA 23510
In this declaratory judgment action the parties agreed to bifurcate the trial and first try the issue of the status of the Defendant, Elgin Stodghill. The issue was tried to the Court without a jury to determine whether at the time of his injury, Stodghill was a longshoreman or seaman. Having considered the evidence presented, the written submissions of the parties, and the argument of counsel, the Court is of the opinion that at the time of his injury, Elgin Stodghill was a longshoreman and not a Jones Act seaman.
Stodghill was injured while working aboard a barge owned by defendant, C&M Terminals. In a separate tort action pending in this Court, Stodghill seeks damages under two theories. First, Stodghill alleges that he is a "seaman" entitled to recover for negligence under the Merchant Marine Act of 1920, 46 U.S.C. § 30104 et seq. (the "Jones Act"). In the alternative, Stodghill asserts that he is an "employee" as contemplated by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 902(3) ("LHWCA") and is entitled to recover for the negligence under 33 U.S.C § 905(b). Riverport Insurance Company, one of the insurance carriers potentially liable for the tort claim, filed the instant declaratory judgment action to determine whether or not Stodghill qualifies as a Jones Act seaman and the liability of various insurance carriers. All parties agree that this declaratory action is appropriate.
The requirements for seaman status are two-fold. First, "an employee's duties must 'contribute to the function of the vessel or to the accomplishment of its mission.'" Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S. Ct. 2172, 2190 (1995) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S. Ct. 807, 817 (1991)). Second "a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Id. The parties have stipulated that the sole issue for decision is whether Stodghill's connection to the JNB barges was substantial in nature.
Stodghill was an endorsed tankerman possessing the required United States Coast Guard certificate. Stodghill was assigned to a fleet of five barges and was primarily responsible for the loading and unloading of hazardous liquids. The barges were unmanned containers used to transport product. Indeed, no crew was assigned to the barges; the United States Coast Guard listed them as vessels requiring no crew. Stodghill performed his duties while the barges were moored either to the dock or to a ship that was moored to the dock. He usually drove to work and returned home each night, but on at least one occasion he rode on a tugboat to a work site. On that ride, however, Stodghill was simply a passenger, not unlike those who ride the Elizabeth River Ferry to work every morning. As the tankerman and person-in-charge on the moored barges, Stodghill worked in conjunction with the onshore loading master and person-in-charge who stood no more than a few feet from Stodghill. This onshore worker performed essentially the same duties as Stodghill, as it requires two people—one on the barge and one on the shore—to transfer safely hazardous materials from the barge to the shore. While working on the barge Stodghill was reasonably close to hospitals and other medical facilities.
Jones Act remedies are reserved for maritime employees whose work regularly exposes them to "the special hazards and disadvantages to which they who go down to sea in ships are subjected." Chandris, 515 U.S. at 355, 115 S. Ct. at 2183. These "special hazards and disadvantages" are generally referred to as the "perils of the sea" and are essential to the determination of whether a worker's connection to a vessel in navigation is substantial in nature. "The nature of the maritime worker's duties must 'take him to sea,' which is shorthand for saying the worker's connection to the vessel should regularly expose him to the perils of the sea." Hartley v. Williams S. Co., L.L.C., 2013 Tex. App. LEXIS 10445, *7 (citing In re Endeavor Marine Inc., 234 F.3d 287, 291 (5th Cir. 2000) (citing Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554—55, 117 S. Ct. 1535)); see also Chandris, 515 U.S. at 369-70, 115 S. Ct. 2172.
Courts have found that these special hazards include "the need to fight fires without outside assistance, the need to abandon ship, the need to survive exposure to inclement weather until help arrives, potential delay or inconvenience in being transported offsite to receive medical attention, and being stuck on a vessel under the control of its Master and operator for extended periods of time until the next port call." Hartley, 2013 Tex. App. LEXIS at * 11 (citing Duet v. Am. Commercial Lines LLC, No. 12-3025, 2013 U.S. Dist. LEXIS 54937 (E.D. La. Apr. 17, 2013) (internal citations omitted)). In Hartley, the Texas Court of Appeals for the First District found that a worker who commuted every day to work, slept at home, and when injured on a barge was able to go to a hospital on land was not subjected to the perils of the sea. Id. at 11-12. In Duet, the Court found a worker who "was required to wear a life preserver at all times and contend[ed] that he faced hazard such as: (1) the dangers associated with the movement of vessels in water due to wind gusts and river turbulence; (2) trip-and fall hazards caused by the icing of barge surfaces in the winter; (3) inclement weather; and (4) the dangers of 'long step[ping]' from barge to barge... was not exposed to the perils of the sea on a regular basis." No. 12-3025, 2013 U.S. Dist. LEXIS 54937 *12-13 (E.D. La. Apr. 17, 2013).
Hartley and Duet were both decided after the Fifth Circuit's decision in In re Endeavor Marine Inc., a case on which the Plaintiff relies heavily to support the proposition that Stodghill is a seaman. The Endeavor Court concluded that a crane operator aboard a barge on the Mississippi river was, as a matter of law, a seaman. In re Endeavor Marine Inc., 234 F.3d 287, 292 (5th Cir. 2000). The Fifth Circuit reversed the trial court's ruling that the crane operator was not a seaman, in part because the worker was "regularly exposed to the perils of the sea." Id. Plaintiff asserts that this is conclusive that workers aboard river-faring vessels who load and unload cargo are regularly exposed to the perils of the sea. While Endeavor, at first glance, supports the Plaintiff's argument, whether any worker aboard a barge is actually exposed to the perils of the sea is highly fact specific.
Endeavor reviewed the trial court's granting of summary judgment as did some of the related cases following Endeavor. Endeavor recognized that whether a worker is a seaman or longshoreman is a mixed question of law and fact, but its discussion is woefully bereft of much factual information. Other courts have offered more facts and those cases are instructive.
A worker employed by a fishing vessel at the end of the fishing season to repair the vessel's engine and fuel tank was found not to be a seaman. His term of employment was coterminous with the commencement and end of the repair and only while the vessel was in port. While he was so employed the vessel moved twice by tugboat. During one of the moves he suffered back pain after handling the vessel's mooring lines. Under those facts, he was found to be a land-based worker, not a seaman. Heise v. Fishing Co. of Alaska, 79 F.3d 903 (9th Cir. 1966).
In contrast, the Ninth Circuit later found that a carpenter, who also worked as a deckhand and pile driver on a barge, raised disputable issues of material fact regarding whether he was a seaman. He worked on the barge both as it was moving and while it was moored. While not specifically stated in the opinion, it seems that a key factor in the court's ruling was the fact that he was required to work on the barge while it was being moved. Delange v. Dutra Constr., Co., 183 F.3d 916 (9th Cir. 1999).
In Gault v. Modern Continental/Roadway Constr. Co., 100 Cal. App. 4th 991 (2002), Gault was injured on a barge that was being used to build a bridge on a flood control channel.
His connection to the barge would terminate when his work on the bridge ended. While aboard the barge, Gault handled mooring lines, and while he was aboard, the barge moved twenty four to thirty six times. He had continuing responsibilities related to movement of the barge, even though he was not...
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