Second District Holds That Docked Riverboat Casino Is Not a Vessel Under the Jones Act
February, 2002
by Brian E. DeVilling and Kimbley A. Kearney
The Grobe Opinion
The Jones Act allows a “seaman” to recover in tort for injuries received “in the course of his employment.” 46 U.S.C.A. §688 (2002). Since riverboat casinos are no longer required to cruise by law in Illinois, many riverboat casino operators have moored their riverboats to land, installed land-based utility lines, and begun operating their gaming facilities dockside. In Grobe v. Hollywood Casinos-Aurora, 759 N.E.2d 154 (Ill. App. 2d Dist.), the Illinois Appellate Court, Second District, held that the Jones Act did not apply to an employee of one such casino. As the first Illinois case to address “seaman” status under the Jones Act, Grobe will have a substantial impact on future Illinois Jones Act cases.
In Grobe, an engineer employed on a riverboat casino was injured on one of the riverboat’s stairways. The engineer argued that he was a “seaman” under the Jones Act. The riverboat had fire-fighting and safety equipment, internal diesel engines, a captain and crew capable of moving the riverboat, was registered with the Coast Guard, and was capable of navigating a .3 mile span of the river in which it was moored. The riverboat was, however, indefinitely moored to a dock and connected to land-based electrical, phone, and computer surveillance utilities, had not cruised for two months prior to the engineer’s injury, and had no plans to cruise in the future. In holding that the engineer was not a “seaman,” the court reasoned that the defendant’s casinos were not transporting passengers, cargo, or equipment, had no intention to resume cruising, and had been permanently withdrawn from navigation for almost two months.
Will Other Courts Follow Grobe?
Grobe will be binding authority in all Illinois circuit courts, but will be only persuasive authority in federal courts and other Illinois appellate courts. Persuasive authority is “entitled only to the weight that the force of its reasoning commands.” United States v. Papia, 910 F.2d 1357, 1362 (7th Cir. 1990). Whether other courts will follow Grobe, therefore, depends on the validity of the Grobe court’s reasoning.
The U.S. Supreme Court has set forth a two-part test that an employee seeking to recover under the Jones Act must satisfy to be considered a seaman. Chandris v. Latsis, 115 S. Ct. 2172 (1995). First, the employee must establish that his duties contribute 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 its duration and nature. Grobe, like most riverboat casino cases, hinged on whether the riverboat at issue was a “vessel.”
Courts have not precisely defined the term “vessel” under the Jones Act. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990); Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 387 (7th Cir. 2001). A number of circuit court decisions nevertheless shed some light on the concept. The Seventh Circuit has held that, under the Jones Act:
Any floating structure, including those designed for special purposes, is a “vessel” capable of having a maritime “crew” so long as the structure at some time serves as a means of transport on water. “To be a vessel, the purpose and business must to some reasonable degree be the ‘transportation of passengers, cargo, or equipment from place to place across navigable waters.’” [citation omitted]. If the waterborne structure serves no transportation function, of course, it can have no group performing navigational functions, and hence no maritime “crew.”
Johnson v. Beasley Const. Co., 742 F.2d 1054, 1063 (7th Cir. 1984). Moreover, the “vessel in navigation” requirement does not require the vessel to be in motion at the precise moment of injury; the inquiry is whether it has at times been employed as a means of transportation on water for passengers or cargo and has not been withdrawn from navigable waters and laid up for a substantial period of time. The Fifth Circuit Court of Appeals in Gremillion held that:
where the vessel status of an unconventional craft is unsettled, it is necessary to focus upon the purpose for which the craft is engaged. . . . A survey of the case law demonstrates three common attributes for non-vessels: (1) The structure was constructed to be used primarily as a work platform; (2) the structure is moored or otherwise secured at the time of the accident; (3) although the platform is capable of movement, and is sometimes moved across navigable waters in the course of normal operations, any transportation function is merely incidental to the platform’s primary purpose.
The same court, in determining vessel status, also looked to whether the boat maintained “(1) navigational aids, (2) lifeboats and other lifesaving equipment, (3) a raked bow, (4) bilge pumps, (5) crew quarters, and (6) registration with the Coast Guard as a vessel.” The court also held that “the intention of the owner to move the structure on a regular basis, the ability of the submerged structure to be refloated, and the length of time that the structure has remained stationary are also relevant to the inquiry.” The Northern District of Illinois adopted these factors in Wiora v. Harrah’s Illinois Corp., 68 F. Supp.2d 988, 992 (N.D. Ill. 1999).
The riverboat at issue in Grobe had navigational aids, lifeboats and other lifesaving equipment, a raked bow, bilge pumps, crew quarters, and was registered with the Coast Guard as a vessel. These factors suggest that the Grobe court should have found the riverboat to be a vessel. On the other hand, it was uncontroverted that the riverboat had been moored permanently for two months prior to the injury and that the defendant had no intention to resume cruising. Moreover, the riverboat in Grobe shared two of three primary characteristics of non-vessels, as identified in Gremillion. Although the riverboat was not constructed solely as a work platform, it was “moored or otherwise secured at the time of the accident,” and, although capable of movement and sometimes moved across waters in the course of normal operations, was moved only incidentally to its primary purpose as a gambling facility.
The strongest indication that the federal and other state appellate courts are likely to follow Grobe is dicta from Weaver, supra, a case in which the Seventh Circuit analyzed the “seaman” status of a riverboat casino employee. The employee sued the boat’s owner for injuries suffered while working aboard the riverboat. The boat had navigational equipment, engines, a crew, and a raked bow, and was cruising at the time of the employee’s injury. The court concluded, based on “the stipulations regarding the boat’s engines, crew, and other traditional vessel characteristics that the [riverboat] is or at least was a traditional vessel.” However, the court noted that “if the casino were indefinitely moored (as the record suggests it is now), its status as a vessel in navigation would be doubtful.” In light of this dicta and the factors outlined in Gremillion and adopted by the Northern District of Illinois in Wiora, it is likely that all courts will follow Grobe.
However, until other courts actually decide the issue, it is impossible to predict with precision what the outcome of future cases will be. There remain a number of factors suggesting that other courts might reach a different conclusion than the Grobe court. First, Illinois riverboats are generally capable of cruising, and were in fact required to cruise by law until June 25, 1999. They are still inspected and regulated by the Coast Guard. Second, each case is highly fact-specific. If a court finds, for example, that a riverboat casino owner plans to cruise again, the court is likely to find that it is a vessel in navigation. Third, future cases may be affected by the jurisdiction where the lawsuit is pending. In a plaintiff-friendly district such as Illinois’ Fifth Appellate District, the appellate court may be less inclined to deny Jones Act remedies to casino employees.
Learning Point:
The Second District’s holding in Grobe is supported by federal case law, particularly the Seventh Circuit’s dicta in Weaver and the Fifth Circuit’s decision in Gremillion. While the factors listed above may cast some doubt on the disposition of future Jones Act cases involving riverboat casinos, there is still a substantial likelihood that federal courts and other Illinois appellate courts will follow Grobe, rendering the Jones Act inapplicable to Illinois riverboat casino employees.
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