sail just as straight, but it does not logically follow that every "vessel" on the high seas will always fit within the definition of a "vessel in navigation" applicable to the Jones Act. See id. at 820.
After careful examination of Digiovanni and its progeny this Court will follow Judge Glasser and adopt the first circuit standard. The Court concludes that this standard is well reasoned, clear, and easy to apply. Most importantly the Court concludes that the first circuit's analysis correctly applies the law as enumerated by the Supreme Court in Wilander and Gizoni. The following constitutes an analysis of the facts in this case pursuant to the Digiovanni standard, remembering that summary judgment is only appropriate "where the facts will reasonably support only one conclusion." Wilander, 111 S. Ct. at 818.
The first inquiry the Court must make under the First Circuit analysis is into whether the primary purpose of the crane barge is navigation. See Digiovanni, 959 F.2d at 1123. It is clear under these facts that the primary purpose of the barge is to perform work with the crane, in this case on a bridge under construction. This purpose is not the transportation of goods or people on the water so the above inquiry is answered in the negative. The Court must progress to the second step of the analysis.
The second inquiry the Court must make is whether the plaintiff's work aboard the barge was to further a navigational or land-work related purpose. See Digiovanni, 959 F.2d at 1123. It is clear that the facts can only lead to the conclusion that the plaintiff's primary job was to work on construction of the bridge, a non-maritime function. The vast majority of plaintiff's working hours were spent constructing the bridge. The accident itself occurred when a wooden form used in constructing the bridge struck plaintiff. Plaintiff argues that his position also involved handling lines when the boat was actually in navigation, but this reflects little on the overall purpose of his job on the barge, because the barge seldom moved.
The third and final analysis the Court must make is whether the barge was in navigation at the time of the incident. See id. It is undisputed that the barge had not moved since two days before the accident, and then only to be repositioned at the work site. Plaintiff argues that the boat was in navigation because it could move up and down with the tide. This argument fails as a matter of law. See Kathriner, 975 F.2d at 661 (citing Cope v. Vallette Dry Dock Co., 119 U.S. 625, 7 S. Ct. 336, 336, 30 L. Ed. 501 (1887) (the fact that a structure floats in the water does not mean it is a vessel in navigation)). The barge was fixed in place by support legs, and tied to the bridge it was in the process of constructing. It had no independent means of propulsion, and had not moved in two days. The only reasonable conclusion that could be reached under these facts is that the barge was not in navigation at the time of the accident. Under the test enumerated by the first circuit, and adopted by this Court, the crane barge was not a vessel in navigation for Jones Act purposes at the time of the accident as a matter of law.
In accordance with the above analysis this Court finds that there are no material facts in issue and defendant is entitled to judgment as a matter of law. The Court will grant defendant's motion for summary judgment on plaintiff's claim for damages as a seaman pursuant to the Jones Act.
Defendant's motion for summary judgment on plaintiff's claim under the LHWCA, however, must fail. Defendant contends that the barge is not a "vessel" for purposes of the LHWCA, so plaintiff cannot pursue a claim.
For the purposes of the LHWCA the Second Circuit has adopted the definition of "vessel" found at 1 U.S.C. § 3 (1976). See McCarthy v. The Bark Peking, 716 F.2d 130, 133-34 (2d Cir. 1983). Section three defines "vessel" as any watercraft or other artificial contrivance capable of being used as a means of transportation on water (emphasis added). See id. This includes barges without means of propulsion so long as they may be towed. See id. The definition is extremely broad, and "no doubt the three men in a tub would fit within our definition [of vessel under section 3], and one could probably make a convincing case for Jonah inside the whale." Id. at 135 (citing Burks v. American River Transportation, 679 F.2d 69, 75 (5th Cir. 1982)). Defendant's argument is incorrect as a matter of law, and summary judgment will be denied on this issue.
Pursuant to the above analysis it is Hereby ORDERED, ADJUDGED, and DECREED that Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's claim under the Jones Act, and Plaintiff's Jones Act claim is DISMISSED. It is further ORDERED that Defendant's Motion for Summary Judgment is DENIED as to plaintiff's claim under the LHWCA, and said claim will proceed to trial.
SIGNED this 24th day of March, 1994.
UNITED STATES DISTRICT JUDGE
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