Scheuring v. Traylor Bros., Inc.

• Citation: 476 F.3d 781
• Decision Date: 14 February 2007
• Docket Number: No. 04-56844.,04-56844.
• Parties: Kevin SCHEURING, Plaintiff-Appellant, v. TRAYLOR BROTHERS, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

476 F.3d 781

Kevin SCHEURING, Plaintiff-Appellant, v. TRAYLOR BROTHERS, INC., Defendant-Appellee.

No. 04-56844.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 16, 2006.

Filed February 14, 2007.

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, CA, and David W. Robertson, Austin, TX, for the plaintiff-appellant.

Mitchell S. Griffin and Richard C. Wootton, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Ralph Zarefsky, Magistrate Judge, Presiding. D.C. No. CV-03-06613-RZ.

Before RICHARD D. CUDAHY,^* BETTY B. FLETCHER, and SUSAN P. GRABER, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiff Kevin Scheuring appeals an adverse grant of summary judgment. Scheuring claims that he is a "seaman" entitled to consideration under the Jones Act, 46 U.S.C. app. § 688(a). In the alternative, he argues that he is entitled to sue the vessel owner in tort under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq. The district court determined that he was not a "seaman" because the nature of his employment was not substantially connected to a vessel, the William F, and therefore, he could not sue under the Jones Act. Moreover, the court determined that the alleged negligence in the positioning of a ramp did not implicate the duty owed by Traylor Brothers as vessel owner, and therefore, Scheuring could not sue under 33 U.S.C. § 905(b). We reverse and remand as to both claims.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2002, Kevin Scheuring was hired by the defendant Traylor Brothers, Inc. as a crane operator on the William F. The William F is a 130-foot long, 798-ton, steel-hulled derrick barge used in construction projects. For the relevant period, the William F was owned and operated by Traylor Brothers. A 130-ton crane, which the plaintiff operated, was affixed to the barge.

At the time of the plaintiff's injury, the William F was being used in the Long Branch Cruise Terminal (LBCT) construction project within the Long Beach Harbor. The LBCT project involved building a T-shaped docking facility for Carnival Cruise Lines. Traylor Brothers was a subcontractor on the project in charge of building a passenger wharf, two flanking mooring dolphins¹ and a trestle running back to the shore. The William F was dispatched to the LBCT project from June 2002 through November 2002.

Scheuring was hired as a crane operator in August 2002 to work for the duration of the LBCT project. He was a member of the Operating Engineers Union. His work background primarily consisted of operating and maintaining heavy equipment. He was trained as a crane operator, received wages as a crane operator and did not consider himself a specialist in marine work. His primary job while employed with Traylor Brothers on the William F was to operate the crane to loft pile, hold the leads that captured the pile and start the hammer that drives the pile. At times, Scheuring helped to move the William F by fleeting, or heaving back and forth on her anchor lines, for purposes of repositioning the barge for the next set of piles to be driven. Scheuring occasionally handled lines, weighed and dropped anchors, stood lookout, monitored the marine band radio and spliced wire and rope.

The plaintiff alleges that the barge was subject to the tides and tossed by sea swells, wind waves, vessel wakes and tidal currents. The barge did not operate on its own power, but rather by means of winches,² which slackened or tightened anchor lines, thereby allowing minor maneuvering and repositioning. The William F fleeted, or heaved back and forth on her anchor lines, on a daily basis. The barge was secured to the shore by multiple permanent lines. On occasion, these cables would break. The barge was also unmoored and towed by a tugboat to a new anchorage on at least three occasions while the plaintiff was aboard.

To board the barge, the crew had to walk down a 20-foot ramp leading from the water's edge to an offshore float. Once on the float, the crew would take a skiff to the barge. The ramp could not be affixed to the float, and, on average, a few times a week it would fall into the water. On the morning of September 11, 2002, the plaintiff arrived at work and found the end of the ramp in the water. While attempting to lift the 180-pound ramp out of the water with the help of others, he slipped and injured his back. Scheuring alleges that Traylor Brothers had known for at least two months about this problem with the ramp.

Scheuring filed this lawsuit against Traylor Brothers claiming that he is entitled to recover for his personal injuries as a seaman under the Jones Act, 46 U.S.C. § 688. In the alternative, Scheuring sues for negligence under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b).³ The defendant filed a motion for summary judgment. The district court granted that motion on August 24, 2004. The plaintiff moved for reconsideration on September 16, 2004, which the district court denied on October 6, 2004. Scheuring appealed.

STANDARD OF REVIEW

We review de novo the order granting summary judgment. Martinez v. Signature Seafoods Inc., 303 F.3d 1132, 1134 (9th Cir.2002). Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether summary judgment is appropriate, we view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

The present case involves alternative maritime tort claims. First, the plaintiff is suing the defendant, as his employer, as a seaman under the Jones Act, 46 U.S.C. app. § 688(a). In the alternative, he is suing the defendant, as the vessel owner, as a harbor worker under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). We will examine each claim in turn.

A. The Jones Act Claim

The Jones Act provides in pertinent part:

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 commonlaw right or remedy in cases of personal injury to railway employees shall apply. . . .

46 U.S.C. app. § 688(a). The defendant contends that the plaintiff is not a "seaman" and therefore is not entitled to recovery under the Jones Act. The determination of who is a seaman is a mixed question of fact and law. Chandris, Inc. v. Latsis, 515 U.S. 347, 369, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). The interpretation of statutory terms is within the purview of the court, but "`[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a `member of a crew,' it is a question for the jury.'" Id. (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991)).

Although the Jones Act was originally enacted in 1920, the question of who is a "seaman" continues to perplex the courts. In the 1990s, the Supreme Court considered this question in a number of cases. In Chandris, the Court articulated a two-part test which drew on its holdings in earlier cases:

[T]he essential requirements for seaman status are twofold. First, as we emphasized in Wilander, "an employee's duties must `contribut[e] to the function of the vessel or to the accomplishment of its mission.'" . . .

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 duration and its nature.

Chandris, 515 U.S. at 368, 115 S.Ct. 2172 (citations omitted). The defendant does not dispute that Scheuring's employment contributed to the function of the William F, thus meeting the first requirement of the test. Nor does the defendant question the "substantial duration" component of the second requirement. The key issue in this branch of the case is whether the nature of Scheuring's duties involved a substantial connection to the William F.

As the Supreme Court explained in Chandris, the first part of the requirement is very broad, covering "`[a]ll who work at sea in the service of a ship.'" Id. (quoting Wilander, 498 U.S. at 354, 111 S.Ct. 807). The second requirement, on the other hand, narrows the pool of potential seaman in order

to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.

Id. The Court explained that this test is "fundamentally status based." Id. at 361, 115 S.Ct. 2172. "Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore." Id. The Court also equated the question of who is a "seaman" to the determination of who is a "member of a crew." Id. at 356, 115 S.Ct. 2172. Decided two years later, Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997) provides additional guidance on the substantial connection prong of the test articulated in Chandris.

For the substantial connection...