Supreme Court Adopts Expansive Definition of "Vessel" for Purposes of Jones Act
January, 2005
On February 22, 2005, the Supreme Court handed down its much anticipated decision in Stewart v. Dutra Construction Co., 125 S.Ct. 1118, 2005 WL 405475 (2005). In Stewart, a unanimous Supreme Court held that the expansive definition of “vessel” in 1 U.S.C. § 3 must be used to determine seaman status under the Jones Act: “The word ‘vessel' includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
The Court stated:
[Even though] the Court has sometimes spoken of the requirement that a vessel be ‘in navigation,' [it was] never to indicate that a structure's locomotion at any given moment mattered [for purposes of seaman status]. . . . The Court did not mean that the ‘in navigation' requirement stood apart from § 3, such that a ‘vessel' for purposes of § 3 might nevertheless not be a ‘vessel in navigation' for purposes of the Jones Act or the LHWCA.
* * *
Instead, the ‘in navigation' requirement is 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. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft's use ‘as a means of transportation on water' is a practical possibility or merely a theoretical one.
(citations omitted; emphasis supplied).
Facts
Defendant Dutra, as part of a project to extend the Massachusetts Turnpike, dug a trench beneath Boston Harbor using a dredge called the “Super Scoop.” The “Super Scoop” is a “massive floating platform” from which a clamshell bucket removes silt from the ocean floor and dumps it into a scow floating alongside. The Super Scoop had some features of a traditional vessel (navigational lights, ballast tanks, dining quarters), but it was “largely stationary” and had very limited means of self-propulsion. Plaintiff was marine engineer hired by defendant to maintain the Super Scoop's mechanical systems. He was injured when, while repairing the engine of the scow floating alongside the Super Scoop, the scow and the Super Scoop collided. He sued defendant under the Jones Action, claiming that he was a seaman injured by defendant's negligence, and under the Longshore and Harbor Workers' Compensation Act (LHWCA), which allows covered employees to sue a “vessel” owner as a third party for an injury caused by the owner's negligence.
The trial court granted summary judgment to defendant on the Jones Act claim and the First Circuit affirmed. On remand, the trial court granted summary judgment to defendant on the LHWCA claim and the First Circuit again affirmed. Applying the vessel status test it first articulated in Digiovanni v. Traylor Bros., Inc., 1992 A.M.C. 1521, 959 F.2d 1119 (1st Cir. 1992), the First Circuit held that the Super Scoop was not a vessel within the meaning of the LHWCA because its primary function was not transportation but support for construction activities.1
Analysis
In overturning the First Circuit in Stewart, the Supreme Court specifically rejected the First Circuit's Digiovanni holding:
Section 3 requires only that a watercraft be ‘used, or capable of being used, as a means of transportation on water' to qualify as a vessel. It does not require that a watercraft be used primarily for that purpose. (emphasis in original)
The Supreme Court concluded that “[b]ecause the Super Scoop was engaged in maritime transportation [digging silt in Boston Harbor] at the time of Stewart's injury, it was a vessel within the meaning of 1 U.S.C. § 3.”
The Supreme Court distinguished “vessels” which are “used, or capable of being used, as a means of transportation on water” from watercraft which are “not practically capable of being used to transport people, freight, or cargo from place to place.” (emphasis in original.) The Court noted that it previously denied the vessel status of a floating drydock that had been moored in the same place for 20 years and a wharfboat secured by cables and utility connections running to the mainland. It determined those craft to be in “a ‘permanent location.'” The Court explained: “Simply put, a watercraft is not ‘capable of being used' for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement.”
It is this aspect of Stewart which may impact Howard v. Southern Illinois Riverboat Casino Cruises, Inc., 364 F.3d 854 (7th Cir. 2004), and Martin v. Boyd Gaming Corp, 374 F.3d 375 (5th Cir. 2004), cases in which the Seventh and Fifth Circuits held that indefinitely moored casino vessels which were no longer required by law to sail in order to serve as gaming casinos were not “vessels in navigation” within the meaning of the Jones Act. The vessels at issue were fully functioning, Coast Guard certified passenger carrying vessels which could be disconnected from their moorings and utility lines in short order. Relying on Pavone v. Mississippi Amusement Corp., 52 F.3d 560 (5th Cir. 1995), both courts found that the casino vessels had been “withdrawn from navigation” because they were indefinitely moored and no longer served a transportation function. Howard, 364 F.3d at 857; Martin, 374 F.3d at 377.
In Stewart, the Supreme Court cited Pavone for the principle 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.” The Court acknowledged, and indicated no disapproval of, the holding in Pavone that a “floating casino [is] no longer a vessel where it ‘[is] moored to the shore in semi-permanent or indefinite manner.'”
Learning Points:
Because Stewart does not appear to disturb the holding in Pavone, it can certainly be argued that it does not disturb Pavone's progeny, Howard and Martin. However, it should be anticipated that the Court's decision to define “vessel” in terms of whether a craft is “practically capable” of waterborne transportation will generate a flurry of litigation on the issue of vessel status, including the status of floating casinos. Moreover, while Pavone, Howard and Martin should provide substantial protection against a finding of vessel status for floating casinos which have been indefinitely moored, special-purpose craft and “work platforms” which did not have vessel status after Digiovanni, Tonnesen v. Yonkers Contracting Co., Inc., 1996 A.M.C. 1777, 82 F.3d 30, 36 (2d Cir. 1996), and Hatch v. Durocher Dock & Dredge, Inc., 1994 A.M.C. 2188, 33 F.3d 545 (6th Cir.1994), will now be “vessels” for purposes of the Jones Act. Stewart will surely give rise to considerable litigation in the future as counsel for injured marine workers strive to “push the edge of the envelope” in applying Stewart to floating craft which arguably are “practically capable” of performing a transportation function.
1 The Sixth Circuit also employed the “primary function” test for vessel status. Hatch v. Durocher Dock & Dredge, Inc., 1994 A.M.C. 2188, 33 F.3d 545 (6th Cir. 1994). The Second Circuit employed a slightly less restrictive test focusing on, inter alia, “whether the structure was moored or otherwise secured at the time of the accident” and “whether, despite being capable of movement, any transportation function performed by the structure was merely incidental to the primary purpose of serving as a work platform. Tonnesen v. Yonkers Contracting Co., Inc., 1996 A.M.C. 1777, 82 F.3d 30, 36 (2d Cir. 1996).
Back to CM Report of Recent Decisions (2005v1) 2005 Volume 1 Table of Contents
