Tonnesen v. Yonkers Contracting Co., Inc.

• Decision Date: 19 April 1996
• Docket Number: D,No. 581,581
• Parties: David TONNESEN, Plaintiff-Appellant, v. YONKERS CONTRACTING COMPANY, INC. and Weeks Marine Inc., a Joint Venture, Defendants-Appellees. ocket 95-7439.
• Court: U.S. Court of Appeals — Second Circuit

Page 30

82 F.3d 30

1996 A.M.C. 1777

David TONNESEN, Plaintiff-Appellant, v. YONKERS CONTRACTING COMPANY, INC. and Weeks Marine Inc., a

Joint Venture, Defendants-Appellees.

No. 581, Docket 95-7439.

United States Court of Appeals, Second Circuit.

Argued Dec. 1, 1995.

Decided April 19, 1996.

Appeal from a judgment entered in the United States District Court for the Eastern District of New York (Seybert, J.), granting appellees' motion for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.

Paul C. Matthews (Barbara Matthews, of counsel), New York City, for Plaintiff-Appellant.

James McMahon, Bingham Englar Jones & Houston (Joseph P. Finnegan, Bingham Englar Jones & Houston, of counsel), New York City, for Defendants-Appellees.

Before: McLAUGHLIN, LEVAL, Circuit Judges, and PARKER, District Judge. ^*

PARKER, District Judge:

The issue presented on this appeal is when is a barge that is used as a work platform not a "vessel in navigation" as a matter of law. David Tonnesen sued under the Jones Act, 46 U.S.C.App. § 688 et seq., and the Longshore and Harborworkers Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA") for injuries sustained while working on a stationary barge, the Weeks 276. The district court granted summary judgment to Yonkers Contracting Co., Inc. and Weeks Marine Inc. ("Yonkers/Weeks"). The decision on the Jones Act claim was based on the finding that the Weeks 276 was not a "vessel in navigation." Tonnesen appeals that ruling. Given the deference to jury determinations required in close questions of seaman status under the Jones Act, see Chandris, Inc. v. Latsis, --- U.S. ----, ----, 115 S.Ct. 2172, 2192, 132 L.Ed.2d 314 (1995), we conclude that summary disposition was not warranted on the record below. Accordingly we reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

Tonnesen was employed by Yonkers/Weeks as a dockbuilder in connection with the construction of a bridge over Jamaica Bay, Queens, New York. On the day of the injury, October 3, 1990, Tonnesen was on the Weeks 276 preparing to work on the foundation of the bridge. He was struck by a wooden form that fell from a crane.

The Weeks 276 was constructed as a car float. It had a bow and stern and was equipped with a large crane used in the construction of the bridge. The Weeks 276 had allegedly brought construction supplies to the area where Tonnesen was working. At the time of Tonnesen's injury, the Weeks 276 was afloat in the navigable waters of Jamaica Bay, but had been rendered temporarily immobile at the work site by steel spuds. The Weeks 276 had no means of self-

                propulsion, no rudder and no navigation lights, and was moved at the job site by a work boat.   Tonnesen testified that the Weeks 276 "was moved on a daily or weekly basis, sometimes it didn't move for a few weeks."   Frank McGahan, Project Manager for Yonkers/Weeks, testified that the Weeks 276 was moved on September 18, September 28 and lastly October 1, two days before Tonnesen was injured.   McGahan also testified that "the Weeks 276 remained permanently at the job site for the duration of the project."
                

DISCUSSION

A plaintiff's entitlement to "seaman" status and hence to the protection of the Jones Act has long been held to depend, in part, on his relationship to a "vessel in navigation." See McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991). This appeal focuses on one issue: whether the Weeks 276 was not, as a matter of law, a "vessel in navigation" for Jones Act purposes. The question is one of first impression for this Court. In Salgado v. M.J. Rudolph Corp., 514 F.2d 750, 751 (2d Cir.1975), we held that a floatable crane was a vessel for purposes of an action for breach of warranty of seaworthiness, without deciding whether it was a "vessel in navigation" for the purposes of the Jones Act. In Harney v. William M. Moore Building Corp., 359 F.2d 649, 650 (2d Cir.1966), the parties stipulated that a crane barge was a "vessel in navigation," and thus, we did not consider the question. In Bernardo v. Bethlehem Steel Co., 314 F.2d 604, 605 (2d Cir.1963), we affirmed a jury verdict that a dry dock was not a "vessel in navigation," rejecting Bernardo's argument that the trial court should have ruled that the dry dock was a "vessel in navigation" as a matter of law.

The Jones Act, passed in 1920, provides a cause of action in negligence for "any seaman" injured "in the course of his employment." ¹ 46 U.S.C.App. § 688(a). It does not define "seaman," but leaves to the courts the determination of exactly which maritime workers are entitled to admiralty's special protection. Early on, following the passage of the Jones Act, the Supreme Court considered the scope of the term "seaman." See, e.g., International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926); Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254 (1934); Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944). By and large, the Supreme Court left definition of the Jones Act's scope to the lower courts, and considerable discord over who was a "seaman" resulted. See Latsis, --- U.S. at ----, 115 S.Ct. at 2184; Johnson v. John F. Beasley Constr. Co., 742 F.2d 1054, 1060 (7th Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1180, 84 L.Ed.2d 328 (1985).

In 1991, the Supreme Court, after some thirty years, revisited the frequently litigated definition of "seaman." See Wilander, 498 U.S. 337, 111 S.Ct. 807. Prior to Wilander, recovery under the Jones Act in our Circuit was permitted on three conditions: (1) the worker must have had a more or less permanent connection with the vessel, (2) the vessel must have been in navigation, and (3) the worker must have been aboard naturally and primarily in aid to navigation. See Salgado, 514 F.2d at 755. Wilander eliminated the "aid to navigation" requirement, conditioning recovery on the presence of the other two prongs. "[T]he better rule is to define ... 'seaman' under the Jones Act[ ] solely in terms of the employee's connection to a vessel in navigation.... The key to seaman status is employment-related connection to a vessel in navigation." Wilander, 498 U.S. at 354-55, 111 S.Ct. at 817. ²

A prerequisite to seaman status and thus to recovery under the Jones Act, therefore, is the existence of a "vessel in navigation." Courts considering the question of whether a particular structure is a "vessel in navigation" typically find that the term is incapable of precise definition: "[a]ttempts to fix unvarying meanings having a firm legal significance to such terms as 'seaman,' 'vessel,' 'member of a crew' must come to grief on the facts." Bernard v. Binnings Construction Co., 741 F.2d 824, 829 n. 14 (5th Cir.1984)(citing Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959)).

Because the answer is fact-specific, the Supreme Court has consigned the question to the jury. See, e.g., Latsis, --- U.S. at ----, 115 S.Ct. at 2192 ("the underlying inquiry whether a vessel is or is not 'in navigation' for Jones Act purposes is a fact-intensive question that is normally for the jury and not the court to decide.") (citing Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958) (per curiam)). Accordingly, summary judgment on the "vessel in navigation" question is only appropriate "where the facts and the law will reasonably support only one conclusion." Latsis, --- U.S. at ----, 115 S.Ct. at 2192 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). This authority teaches that, under the Jones Act, the term "vessel" has such a wide variety of meaning that, except in rare cases, only a jury or trier of facts can determine its application in the circumstances of a particular case. See Bernard, 741 F.2d at 827; Sharp v. Johnson Brothers Corp., 917 F.2d 885, 888 (5th Cir.1990), cert. denied, 508 U.S. 907, 113 S.Ct. 2333, 124 L.Ed.2d 245 (1993). In addition, the policy of providing an expansive remedy for seamen, see Cox v. Roth, 348 U.S. 207, 210, 75 S.Ct. 242, 244, 99 L.Ed. 260 (1955) (" 'As welfare legislation, [the Jones Act] is entitled to a liberal construction to accomplish its beneficent purposes.' ") (citation omitted), mandates that even marginal claims are properly left for a jury's determination. See, e.g., Ducote v. V. Keeler & Co., Inc., 953 F.2d 1000, 1002 (5th Cir.1992); see Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 253, 78 S.Ct. 687, 688, 2 L.Ed.2d 737 (1958).

In holding that the Weeks 276 was not a "vessel in navigation" as a matter of law, and granting summary judgment in favor of Yonkers/Weeks, the district court here relied primarily upon DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir.) (en banc), cert. denied, 506 U.S. 827, 113 S.Ct. 87, 121 L.Ed.2d 50 (1992). DiGiovanni was employed to work on a crane barge, the BETTY F, and was injured while guiding the crane in bridge construction. On petition for rehearing, after a panel had affirmed a jury verdict that DiGiovanni was a seaman, the First Circuit en banc held that the BETTY F was not a "vessel in navigation" as a matter of law. See DiGiovanni, 959 F.2d at 1120.

Over a vigorous dissent, the majority purported to follow the Fifth Circuit's test for what is not a "vessel in navigation" as set forth in Bernard, 741 F.2d 824. The Fifth Circuit had explained that "vessels in navigation" are "structures designed or utilized for 'transportation of passengers, cargo or equipment from place to place across navigable waters.' " Bernard, 741 F.2d at 828-29 (citation omitted). The DiGiovanni majority stated its new rule to be "if a barge, or other float's 'purpose or primary business is not navigation or commerce' then workers assigned thereto for its shore enterprise are to be considered seamen only when it is in actual navigation or transit." DiGiovanni, 959 F.2d at 1123 (quo...