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Recent Legal Updates Collected and analyzed by Kirk E. Karamanian, Esq., Proctor in Admiralty U.S. Supreme Court Defines "Vessel" for Purposes of Jones Act and LHWCA On February 22, 2005, the United States Supreme Court in Stewart v. Dutra Construction Co., No. 03-814, slip op., resolved a split among circuits over what constitutes a "vessel" for purposes of the Jones Act. Prior to this decision, lower courts had struggled with defining the term "vessel" which is a component of the seaman status test previously articulated in Chandris, Inc. v. Latsis, 515 U.S. 347, 357 (1995)(to qualify for "seaman" status under the Jones Act, a worker must have an "employment-related connection to a vessel in navigation."). In the absence of Supreme Court precedent, the lower courts-not surprisingly-had formulated varying definitions of "vessel." The Fifth Circuit had adopted an expansive definition of the term "vessel," focusing on the "purpose for which the craft is constructed and the business in which it is engaged." Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293(5th Cir. 1990). Even special purpose structures without traditional vessel characteristics could be considered "vessels" if the structure's transportation function was not merely incidental to its work platform function. Sharp v. Johnson Bros. Corp., 917 F.2d 885 (5th Cir. 1990); Ducote v. V. Keeler & Co., 953 F.2d 1000 (5th Cir.1992). The First Circuit on the other hand, had defined the term "vessel" more narrowly, holding that "if a barge, or other float's 'purpose or primary business is not navigation or commerce,' then workers assigned thereto for its shore enterprise ought to be considered seamen [for Jones Act purposes] only when it is in actual navigation or transit." DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir. 1992) (en banc), cert denied, 506 U.S. 827 (1992). Dutra involved a large dredge barge, the Super Scoop, being utilized to dredge the Boston Harbor as part of the "Big Dig" project. The barge had limited self-propulsion ability, but was being moved every few hours by manipulating its anchors and cables. Stewart, a mechanic employed by Dutra to maintain the barge's mechanical systems was severely injured when he fell while working aboard a scow tied up alongside the Super Scoop. He filed claims against Dutra under the Jones Act and §905(b) of the LHWCA. The district court initially granted Dutra's motion for summary judgment concluding that the dredge was not a vessel for Jones Act purposes and the First Circuit affirmed. Stewart v. Dutra Construction Co., Inc., 230 F.3d 461 (1st Cir. 2000). On remand, the district court also concluded that any negligence on the part of Dutra occurred in its capacity as employer as opposed to owner of the Super Scoop, thereby foreclosing liability under §905(b). Once again the First Circuit affirmed. Stewart v. Dutra Construction Co., Inc, 343 F.3d 10 (1st Cir. 2003). Stewart appealed to the Supreme Court, framing the issue to be decided as "What is the legal standard for determining whether a special purpose watercraft (such as a dredge) is a Jones Act "vessel?" Interestingly, in providing the answer, the Supreme Court framed the issue somewhat differently, remarking that certiorari was granted "to resolve confusion over how to determine whether a watercraft is a "vessel" for purposes of the LHWCA." slip op., at 4. The Court explained that because it had earlier identified a Jones Act seaman with reference to the exclusion in the LHWCA of "a master or member of a crew of any vessel," the use of the term "vessel" in the LHWCA was the relevant inquiry. slip op., at n. 1. The Court observed that although the LHWCA does not define "vessel," at the time it was enacted, §§ 1 and 3 of the Revised Statutes of 1873 specified: In determining the meaning of the revised statutes, or of any act or resolution of Congress passed subsequent to February twenty-fifth, eighteen hundred and seventy-one, . . .[t]he word 'vessel' includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water. Id. at 6 (quoting §§ 1 and 3 of the Revised Statutes of 1873). Since both the Jones Act and LHWCA were enacted after 1871, §3 of the Revised Statutes therefore supplied the definition of "vessel" for purposes of those Acts. The Court also noted that §3 "merely codified the meaning that the term 'vessel' had acquired in general maritime law," citing late nineteenth century decisions finding dredges to be vessels because of their "capacity to be navigated in and upon the waters." Id. at 6. The Court concluded that §3 requires only that the watercraft be "used, or capable of being used, as a means of transportation on water" for it to qualify as a vessel, but does not require that it be primarily used for those purposes. Id. at 9. Significantly, the Court also rejected any "snapshot" test at the moment of injury for determining vessel status: A ship and its crew do not move in and out of Jones Act coverage depending on whether the ship is at anchor, docked for loading or unloading, or berthed for minor repairs, in the same way that ships taken permanently out of the water as a practical matter do not remain vessels merely because of the remote possibility that they may one day sail again. Id. at 8. Although the test for seaman status requires an employee to have a connection to a "vessel in navigation," the Court explained that the "in navigation" requirement is simply an element of the vessel status of a watercraft. It is relevant to whether the craft is "used, or capable of being used" for maritime transportation. In all cases the seminal question is "whether the watercraft's use 'as a means of transportation on water' is a practical possibility or merely a theoretical one." Id. at 9. The Court concluded that the Super Scoop unquestionably met the definition of vessel under the Revised Statutes since it not only was capable of being used to transport equipment and workers over water-it was used to transport those things. Moreover, its stationary position at the time of Stewart's injury was of no moment since a watercraft does not "pass in and out of Jones Act coverage depending on whether it was moving at the time of the accident." Id. The Court's decision in Dutra will no doubt make it far easier to establish seaman status for purposes of the Jones Act. Workers employed aboard dredges, barges and similar structures will be covered provided these "contrivances" are at least "capable of being used" for maritime transportation, regardless of their "primary purpose." Similarly, watercraft that are temporarily tied up, moored, or undergoing repairs will likely still be considered vessels so long as their use as a means of transportation on water is a practical possibility, not merely a theoretical one. A watercraft will not lose its vessel status unless it is "taken out of service, permanently anchored, or otherwise rendered practically incapable of maritime transport." In close cases, factual questions for a jury may be presented. Kirk E. Karamanian, Esq., Proctor in Admiralty U.S. Supreme Court Grants Certiorari to Decide What is a Vessel Under the Jones Act On February 23, 2004, the United States Supreme Court agreed to hear the appeal of an injured seaman in Stewart v. Dutra Const. Co., case No. 03-814. The issue in the case is what constitutes a "vessel" for purposes of the Jones Act, a question the Court has remarkably never answered until now. The case is on appeal from the First Circuit which affirmed a dismissal of the crewmember's Jones Act suit on the grounds that the dredge on which he was working at the time of his accident was not a vessel. The First Circuit relied upon one of its earlier decisions, DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir. 1992) (en banc), which held that "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 [for Jones Act purposes] only when it is in actual navigation or transit." Id. at 1123 (quoting Bernard v. Binnings Constr. Co., 741 F.2d 824, 829 (5th Cir. 1984)). Applying the Digiovanni test, the First Circuit held as a matter of law that the dredge to which Dutra was assigned at the time of his injuries was not a vessel despite it having the following characteristics as described by the court:
It is noteworthy that the test adopted by the First Circuit in DiGiovanni is considered to be the most restrictive of all the Circuit Courts of Appeal. Since there are currently at least six different tests being applied throughout the country for determining what constitutes a "vessel" for Jones Act purposes, the upcoming Supreme Court ruling should prove illuminating. Kirk E. Karamanian, Esq., Proctor in Admiralty U.S. Coast Guard Safety Alert on Personal Protective Equipment Demonstrates How Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002) is Impacting the Towing Industry The Coast Guard's November 5, 2003 "Marine Safety, Security and Environmental Protection Safety Alert" shows how Chao v. Mallard Bay Drilling, (previously discussed in these pages), is impacting the towing industry. The Coast Guard admonished employers to comply with various OSHA regulations pertaining to Personal Protective Equipment (PPE's) or face fines for their non-compliance.
The text of the Coast Guard's Safety alert follows:
"Last spring an uninspected towing vessel (UTV) suffered a personnel casualty while engaged in a dredging operation. The casualty resulted in serious injury to a crewmember and an undisclosed monetary settlement of a Jones Act Claim against the marine employer by the injured crewman. The crewmember was conducting an unscheduled repair to a navigation light fixture attached to the mast located above the upper wheelhouse. For personal fall protection, the crewmember collected a body belt and a positioning lanyard from a storage location on the vessel.
The crewmember climbed the mast, fastened the lanyard around the mast, leaned back supported by the belt and began working. Just minutes into the repair the lanyard parted. The crewmember fell to the deck approximately 40 feet below and sustained a broken leg, arm, ribs and contusions to the head and back.
The Coast Guard's investigation focused on the human element and equipment performance. Although the investigation is not yet complete, important regulatory issues regarding the use, training, and storage of Personal Protective Equipment (PPE) have been discovered. Specifically: Effective January 1, 1998, body belts were deemed unacceptable for use as part of a personal fall arrest system by the Occupational Safety and Health Administration (OSHA).
The manufacturer's instructions for the proper use, care and inspection schedule for the body belt and positioning lanyard were not followed.
The marine employer did not adhere to the requirements of 29 CFR 1915.159 for personal fall arrest systems.
The marine employer did not adhere to the requirements of 29 CFR 1915.160 for positioning device systems.
The marine employer did not adhere to the requirements of 29 CFR 1915.152, general requirements for training and documentation.
Investigators determined that the positioning lanyard was manufactured in November of 1993. The manufacturer's instructions called for semi-annual inspection and removal from service no later than November of 1998.
Further investigation revealed that company policy prohibited the use of a body belt for personal fall protection and required the use of a full body harness; however, the vessel was never provided with a body harness and instead retained two body belts and lanyards. The Coast Guard could not establish that the involved individuals had been trained on their use, storage and limitations.
Persons owning and operating uninspected vessels are required to comply with OSHA regulations with regards to PPE and are subject to fines for noncompliance. Owners/operators are strongly encouraged to:
Visit the U.S. Department of Labor website to view Directive CPL 2-1.20 - OSHA / U.S. Coast Guard Authority Over Vessels at: http://www.osha.gov Develop, document and provide specialized crew training which includes demonstrations to ensure familiarity with use, storage, and limitations of Personal Protective Equipment.
Questions related to this information may be directed to the U.S. Coast Guard Marine Safety Office Hampton Roads, Investigations Office at (757) 668-5540.
RELEASED BY - Office of Investigations and Analysis, USCG Headquarters. Questions or comments related to this information or its delivery may be addressed to Mr. Ken Olsen at 202.267.1417 or kolsen@comdt.uscg.mil." Kirk E. Karamanian, Esq., Proctor in Admiralty OSHA REGULATIONS NOW APPLY TO UNINSPECTED VESSELS The U.S Supreme Court in Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002) held that uninspected towing vessels are subject to the same OSHA regulations as land-based workplaces. This landmark decision should improve safety for rivermen everywhere. Chao involved an explosion aboard an oil and gas exploration barge that killed and injured several workers. Pursuant to its statutory authority, the United States Coast Guard investigated the incident, but did not accuse the vessel owner of violating any of its regulations since the barge was an "uninspected vessel." The Occupational Safety and Health Administration (OSHA) did however subsequently cite the owner for violations of the Occupational Safety and Health Act of 1970 and its regulations. Mallard Bay challenged OSHA’s jurisdiction to issue the citations on the grounds that the barge was not a “workplace” under §4(a) of the Act and that §4(b)(1) of the Act pre-empted OSHA jurisdiction because the Coast Guard had exclusive authority to prescribe and enforce occupational safety and health standards on vessels such as Rig 52. In rejecting both challenges, the Administrative Law Judge (ALJ) found that Rig 52 was a “workplace” under the Act and held that the Coast Guard had not pre-empted OSHA’s jurisdiction, explaining that there was no industry-wide exemption from OSHA regulations for uninspected vessels and no Coast Guard regulation specifically regulating the citations’ subject matter. The Occupational Safety and Health Review Commission issued a final order assessing a penalty against the company. Without addressing the §4(a) issue, the Fifth Circuit reversed, holding that the Coast Guard’s exclusive jurisdiction over the regulation of seamen’s working conditions aboard vessels such as Rig 52 precluded OSHA’s regulation under §4(b)(1), and that this pre-emption encompassed both inspected and uninspected vessels. The U.S. Supreme Court held that because the Guard has neither affirmatively regulated the working conditions at issue, nor asserted comprehensive regulatory jurisdiction over working conditions on uninspected vessels, it has not exercised its authority under §4(b)(1). The Court observed that OSHA does not apply to working conditions as to which other federal agencies “exercise” statutory authority to prescribe or enforce occupational safety and health standards or regulations. §4(b)(1), 29 U.S.C. § 653(b)(1). Congress’ use of “exercise” however, makes clear that mere possession by another federal agency of unexercised authority is insufficient to displace OSHA’s jurisdiction. Furthermore, another federal agency’s minimal exercise of some authority over certain vessel conditions does not result in complete pre-emption of OSHA jurisdiction. It was precisely this kind of "minimal exercise of authority" that the Supreme Court found to exist with respect to Coast Guard regulation of uninspected vessels. Its general maritime regulations do not address the occupational safety and health concerns faced by inland drilling operations on such vessels and, thus, do not pre-empt OSHA’s authority. And, although the Coast Guard has engaged in a limited exercise of its authority to regulate specific working conditions on certain types of uninspected vessels, none of those specific regulations addressed the types of risks and vessel involved in the case. Kirk E. Karamanian, Esq., Proctor in Admiralty
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