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TONNESEN v. YONKERS CONTR. CO.

March 24, 1994

DAVID TONNESEN, Plaintiff,
v.
YONKERS CONTRACTING CO., ET AL, Defendants.



The opinion of the court was delivered by: JOANNA SEYBERT

 Seybert, D.J.

 This is an action brought pursuant to 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"). The Court is exercising federal question jurisdiction. Defendant moves for summary judgment, arguing that there are no material facts in issue and that as a matter of law the barge on which plaintiff was injured was not a "vessel in navigation" as defined under the Jones Act or a "vessel as intended by the LHWCA. Defendant thus argues that plaintiff has no cause of action under these statutes, and defendant is therefore entitled to judgment as a matter of law. Plaintiff argues that the status of the barge under these statutes is not set as a matter of law, and must be determined by the trier of fact.

 Plaintiff was injured when he was struck by a wooden building form that swung free while suspended from the crane on the barge on which plaintiff worked. Plaintiff was a member of a dockbuilding gang which was involved in the construction of a new cross bay bridge over Jamaica Bay, Queens, New York. Plaintiff was working on board a crane barge, the Weeks 276, at the time of his injury. The barge was fixed in place at the work site by steel support legs, known as spuds, which rendered it immobile so that the crane could operate. The barge had no engine and could move only with the aid of a tug boat. The barge's sole function was to act as a work platform. The barge only moved in navigation while being towed to and from a work site, and when changing position at the site.

 Plaintiff missed four to five weeks of work as a result of the accident, and was paid compensation for this period by defendant's LHWCA compensation carrier. Plaintiff brought the instant action pursuant to the Jones Act and the LHWCA to recover damages for the injuries he sustained.

 DISCUSSION

 The issue of whether the crane barge is a "vessel in navigation" for purposes of the Jones Act, or a "vessel" as intended by the LHWCA, is before the Court pursuant to Defendant's motion for summary judgment. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine issue of fact exists if there is sufficient evidence favoring the non-movant that a reasonable jury could find in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). The evidence is to be viewed in the light most favorable to the non-movant. See Oxley v. City of New York, 923 F.2d 22, 24 (2d Cir. 1991). The above standards will be applied in deciding the outcome of this motion.

 Prior to the Supreme Court's decision in McDermott International, Inc. v. Wilander, 498 U.S. 337, 111 S. Ct. 807, 112 L. Ed. 2d 866 (1991), United States courts, including the second circuit court of appeals, focused on the issue of the status or job of an injured plaintiff in addressing whether he was entitled to recover under the Jones Act. See Harney v. William M. Moore Building Corp., 359 F.2d 649, 654 (2d Cir. 1966) (worker must be aboard naturally and primarily as an aid to navigation); Whittington v. Sewer Construction Co., Inc., 541 F.2d 427 (4th Cir. 1976); Wilkes v. Mississippi River Sand and Gravel Co., 202 F.2d 383 (6th Cir. 1953). The Supreme Court in Wilander removed the "aid in navigation" requirement and enumerated as the central requirement for the right to sue as a seaman under the Jones Act that the employee be "connected to a vessel in navigation." Wilander, 111 S. Ct. at 820. The Court held that determination of seaman status under the Jones Act is a mixed question of fact and law. See id. at 818. The Court went on to state that "the inquiry into seaman status is necessarily fact specific; it will depend on the nature of the vessel, and the employee's precise relationship to it." Id. The Wilander Court determined that summary judgment in these cases is only appropriate "where the facts and the law will reasonably support only one conclusion." Id. The Wilander test was reaffirmed by the Supreme Court in Southwest Marine, Inc. v. Gizoni, 116 L. Ed. 2d 405, 112 S. Ct. 486 (1991).

 Subsequent to Wilander and Gizoni the federal courts addressing this issue have focused on whether the structure on which the incident occurred was a "vessel in navigation." See Buccellato v. City of New York, 808 F. Supp. 967, 973 (E.D.N.Y. 1992); Hatch v. Durocher Dock and Dredge Inc., 820 F. Supp. 314 (E.D. Mich. 1993); Digiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir. 1992) (en banc), cert. denied, 121 L. Ed. 2d 50, 113 S. Ct. 87 (1992). The second circuit has not yet acted on this issue, and Judge Glasser's opinion in Buccellato, while persuasive, does not analyze the issue in depth, and is not binding on this Court.

 Other courts, including the court of appeals for the ninth circuit, have followed the first circuit's holding in Digiovanni. See Kathriner v. UNISEA, Inc., 975 F.2d 657, 661 (9th Cir. 1992); Hatch v. Durocher Dock and Dredge, Inc., 820 F. Supp. 314, 316 (E.D. Mich. 1993). The Court could not locate any courts which had rejected Digiovanni, or applied an alternative standard. A thorough examination of the Digiovanni rationale is therefore necessary to this Court's analysis of the issue.

 Digiovanni holds that if a barge or other float's purpose or primary business is not navigation or commerce, then workers assigned thereto for its primary "shore" enterprise are only to be considered "seamen" for purposes of the Jones Act when the structure is in actual navigation or transit. See Digiovanni v. Traylor Bros., Inc., 959 F.2d 1119, 1123 (1st Cir. 1992) (en banc) cert. denied, 121 L. Ed. 2d 50, 113 S. Ct. 87 (1992). The rationale behind this decision is that a worker is intended to receive the protection of the Jones Act not by reason of the physical characteristics of the structure to which he is attached, but because its operation in navigation exposes him to the unique hazards faced by seamen. See id. The first circuit standard allows people performing normal "dry land" jobs on seagoing structures that do not have the characteristics of an ocean vessel to enjoy the status of a seaman only when facing a seaman's hazards -- when the vessel is actually moving in navigation. See id. This standard requires the court to first determine the primary purpose of the vessel. See id. If the primary purpose is navigation (i.e. the transportation of people or goods on the water) then the vessel is presumed to be in navigation. See id. at 1122. If the primary purpose is other than navigation then the question of whether the worker is there to perform a maritime function or a shore enterprise function must be answered. See id. If the worker's function is not maritime (i.e. furthering the navigation of the structure at sea) then the worker is only considered a seaman when the structure is "in navigation" (i.e. "moving"). See id.

 The one disconcerting effect of this holding is that a worker can be deemed a seaman for some portions of the workday and not a seaman for others, a condition the first circuit calls "varying status designation" ("VSD"). Id. at 1123. The first circuit addresses this briefly, stating that varying status designation is not a novel concept, and citing a Supreme Court case where a similar designation was ...


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