Stewart v. Dutra Construction Co.

• Decision Date: 07 September 2000
• Docket Number: Nos. 99-1487,00-1090,s. 99-1487
• Citation: 230 F.3d 461
• Parties: (1st Cir. 2000) WILLARD STEWART, PLAINTIFF, APPELLANT, V. DUTRA CONSTRUCTION COMPANY, INC., DEFENDANT, APPELLEE. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 461

230 F.3d 461 (1st Cir. 2000)

WILLARD STEWART, PLAINTIFF, APPELLANT,

V.

DUTRA CONSTRUCTION COMPANY, INC., DEFENDANT, APPELLEE.

Nos. 99-1487, 00-1090.

United States Court of Appeals For the First Circuit

Heard September 7, 2000.

Decided October 31, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge] [Copyrighted Material Omitted] David B. Kaplan, with whom Thomas M. Bond and The Kaplan/Bond Group were on brief, for appellant.

John J. O'Connor, with whom Frederick E. Connelly, Jr. and Peabody & Arnold Llp were on brief, for appellee.

Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

Selya, Circuit Judge.

In a case reminiscent of Coleridge's storied seafarer, who was doomed to tell the same tale over and over again, see Samuel T. Coleridge, Rime of the Ancient Mariner (1798), plaintiff-appellant Willard Stewart invites us to re-examine, narrow, or distinguish our holding in DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir. 1992) (en banc), and declare his floating work platform -a dredge engaged in the excavation of a tunnel in the Boston Harbor - to be a "vessel in navigation" as that term is used in the jurisprudence of the Jones Act, 46 U.S.C. app. § 688. We conclude that we are bound by our en banc precedent and that, under it, the dredge in question is not a vessel in navigation within the contemplation of the Jones Act. Consequently, we affirm the district court's entry of partial summary judgment in the defendant-employer's favor.

I. BACKGROUND

We divide our depiction of the relevant background into three segments. The facts are mostly undisputed. Consistent with the conventional summary judgment praxis, we take the few controverted facts in the light most flattering to the non-movant (here, the appellant). See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).

A. The Dredge.

The SUPER SCOOP is a large floating platform - its exact dimensions do not appear in the record - equipped with a clamshell bucket. It operates as a dredge, removing silt from the ocean floor and dumping the sediment onto one of two scows that float alongside. Once the scows are full, tugboats tow them out to sea and dispose of the dredged material.

Though largely stationary, the SUPER SCOOP has navigation lights, ballast tanks, and a dining area for the crew. Crew members control the clamshell bucket by manipulating a tag-line cable attached to a counterweight. The SUPER SCOOP is incapable of self-propulsion. Crew members use anchors and cables to achieve positional movement at near-glacial speeds. The SUPER SCOOP typically moves once every two hours, covering a distance of thirty to fifty feet. Its scows also lack any means of self-propulsion. Tugboats normally are used to achieve movement. Alternatively, the dredge's crew drops a bucket from the dredge into one of the scow's hoppers; by manipulating the cables, the crew then swings the bucket so that it guides the scow around the dredge.

The SUPER SCOOP is classified as an industrial vessel, and as such, it is required to register and comply with safety regulations issued by the Coast Guard and the United States Department of Transportation. Similarly, the American Bureau of Shipping has issued a load-line certificate to the SUPER SCOOP.

B. The Incident.

Defendant-appellee Dutra Construction Company (Dutra) hired the appellant, a marine engineer, to maintain the mechanical systems of the SUPER SCOOP. Dutra purposed to use the SUPER SCOOP to help construct an immersed-tube tunnel across the Boston Harbor. The operational plan called for floating prefabricated tube sections to the site, sinking the tubes into a previously dredged trench, and then covering the sunken tubes with backfill.

The appellant began work in late 1991. The SUPER SCOOP started to dig the cross-harbor trench needed for the tunnel. The process was long and laborious. It was still ongoing on July 15, 1993. On that date, however, the SUPER SCOOP lay idle because one of its scows (Scow No. 4) was out of commission and the other was at sea.

During this lull, the appellant boarded Scow No. 4 to effect repairs. While he was working, the SUPER SCOOP's crew proceeded to move the scow. When the scow reached its new position on the SUPER SCOOP's starboard side, the two structures collided. Dislodged by the collision, the appellant plummeted headfirst to a deck below. He sustained serious injuries.

C. The Travel of the Case.

The appellant subsequently sued Dutra in the United States District Court for the District of Massachusetts. One count of his complaint invoked the Jones Act. After a substantial period of pretrial discovery, Dutra moved for summary judgment on all counts. See Fed. R. Civ. P. 56. In due course, the district court, ruling ore tenus, denied the motion as to certain counts, but granted brevis disposition on the Jones Act count. This interlocutory appeal followed. ¹

II. APPELLATE JURISDICTION

We turn briefly to the threshold issue of appellate jurisdiction. See BIW Deceived v. Local S6, 132 F.3d 824, 828 (1st Cir. 1997) (explaining that a federal court has an unflagging obligation to inquire into its own jurisdiction).

In civil cases, the usual source of appellate jurisdiction is 28 U.S.C. § 1291 (conferring appellate jurisdiction over "final decisions" of the district courts). Here, however, the order granting partial summary judgment did not dispose of all the claims asserted. Thus, this court lacks jurisdiction under section 1291. See North Carolina Nat'l Bank v. Montilla, 600 F.2d 333, 334-35 (1st Cir. 1979) (per curiam); see generally FDIC v. Ogden Corp., 202 F.3d 454, 458-59 (1st Cir. 2000) (discussing concept of finality).

Withal, there are exceptions to the "final judgment" rule -and one such exception pertains here. Congress, in its wisdom, has enacted a special statute that permits immediate appeals from interlocutory district court orders "determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." 28 U.S.C. § 1292 (a)(3). Thus, an interlocutory order in an admiralty case can be appealed immediately so long as it conclusively determines the merits of a particular claim or defense. Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1062-64 (1st Cir. 1987).

The case at hand satisfies that requirement: the district court's order determining, as a matter of law, that the SUPER SCOOP was not a vessel in navigation within the purview of the applicable Jones Act jurisprudence (and that, therefore, the appellant had no cognizable claim under that statute) plainly implicates section 1292(a)(3). Accordingly, we have jurisdiction to hear and determine this appeal.

III. THE MERITS

Having reached the merits, we first frame the issue. We then group the appellant's arguments and address them under two headings.

A. Framing the Issue.

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 . . . .

46 U.S.C. app. § 688(a). Congress enacted this legislation in 1920 to protect seamen because of their exposure to the perils of the sea. Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). That taxonomy seems straightforward, but it is hardly self-elucidating - and the devil is in the details. As a result, the determination of who qualifies as a seaman for this purpose has proven to be a gnarly proposition. E.g., id. at 356 (bemoaning that, due to definitional difficulties, the "perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review") (citation omitted).

Over time, the Court has untangled some of the doctrinal knots. Although the Jones Act itself does not use the word "vessel," the Court has placed a gloss on the statute. This gloss clarifies that a prospective plaintiff's status as a seaman (and, therefore, his eligibility to sue under the Jones Act) depends, in the first instance, on his connection to a "vessel in navigation." McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 354 (1991). But the Justices have spoken rather elliptically as to the nature of that connection, e.g., Chandris, 515 U.S. at 368-71; Wilander, 498 U.S. at 354-57, and they have left the lower courts to fret, largely unguided, over what is - or is not - a vessel in navigation. That question is of utmost importance here, as Dutra acknowledges the appellant's status as a member of the SUPER SCOOP's crew. The pivotal issue, then, is whether the SUPER SCOOP, at the time of the accident, was a vessel in navigation as that term is used in the jurisprudence of the Jones Act.

In many cases, the deceptively simple question of whether a particular floating object is a vessel in navigation reduces to a question of fact. See Chandris, 515 U.S. at 373. But when the facts and the reasonable inferences extractable therefrom, viewed in the light most congenial to the injured worker, bring a particular structure outside any permissible understanding of the term, the court may determine the status of the structure as a matter of law. See Tonnesen v. Yonkers Contracting Co., 82 F.3d 30, 33 (2d Cir. 1996); Bennett v. Perini Corp., 510 F.2d 114, 116 (1st Cir. 1975). Believing that this case came within that class of cases, the court below opted to decide the issue. And, it concluded that the dredge was not a vessel in navigation. We review its determination de novo. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).

A. Stare Decisis.

In attempting to convince us that the district court erred in not deeming the SUPER SCOOP a vessel in navigation for Jones Act purposes, the appellant runs headlong into controlling precedent....