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TUDER v. MATERIAL SERVICE CORPORATION

United States District Court, Northern District of Illinois, E.D


October 1, 1959

ELZIE TUDER, JR., PLAINTIFF,
v.
MATERIAL SERVICE CORPORATION, A CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Campbell, Chief Judge.

Plaintiff, Elzie Tuder, Jr., brings this action against defendant, Material Service Corporation, under the Jones Act, 46 U.S.C.A. § 688, for injuries suffered by him in the course of his employment at defendant's sand and gravel pit in Morris, Illinois. Defendant, in addition to its answer, has pleaded the following affirmative defenses which are now before me for disposition:

  (1) Plaintiff and defendant are bound by the
      provisions of the Illinois Workmen's
      Compensation Act, (Chapter 48, 1957, Illinois
      Revised Statutes, Section 138ff, as amended)
      in that plaintiff was employed by defendant
      as a laborer under the provisions of said
      statute and was in no way engaged in any
      project for the purposes of navigation;

  (2) Plaintiff has elected to become bound by said
      Act and has filed a claim before the
      Industrial Commission of the State of
      Illinois which bars any further relief; and
      alternatively,

  (3) At the time of the alleged injuries, the
      parties were operating under and bound by the
      Federal Longshoremen's and Harbor Workers'
      Compensation Act, 33 U.S.C.A. § 901 et seq.

It appears that the question raised by defendant's affirmative defenses is the status of the plaintiff at the time of his injury. Specifically, was the injury covered by the Jones Act, the Longshoremen's and Harbor Workers' Compensation Act and/or the Illinois Workmen's Compensation Act?

The following uncontradicted facts are revealed from the affidavits, exhibits, pleadings and briefs of the parties:

  The sand and gravel pit at Morris, Illinois, was
  originally a dry pit operation with the material
  being loaded in trucks and hauled out. In the
  Spring of 1955, defendant excavated a canal from
  the Illinois River for some 3,550 feet, 80 feet
  wide, with a depth of 10 feet which connected the
  Illinois River to the sand and gravel pit
  supplying water thereto and making it a wet pit
  operation. The canal was constructed through
  lands owned and leased by defendant; leads only
  to defendant's plant; and is used exclusively by
  defendant for gaining access to the Illinois
  River.

Defendant's sand and gravel processing plant is constructed on three barges permanently joined together in a line with an overall length of 470 feet and consists of crushers, conveyors, screens, pumps, and electrical equipment installed in fixed positions. The combined weight of the plant is 2,500 to 3,000 tons. The operation consists of hydraulically washing down a dry bank. A dredge then scoops up and pumps the material of mine run sand and gravel through a 16-inch pipeline to the processing plant using the water as the vehicle to carry the sand and gravel. At the plant, the material is washed and sized by means of a conveyor, loaded into barges tied alongside the plant. As a barge is loaded, it is moved forward to assure even loading by means of a power winch on the plant. When a barge is completely loaded, a small pusher boat takes it from the plant out the canal to the Illinois River where it is picked up by a river towboat and transported to its destination.

The dredge is permitted to move short distances to wash the bank hydraulically and dredge the material and is connected to the plant only by means of the pipeline which is mounted on pontoons to permit some movement of the dredge. The plant, however, is firmly fixed to the bottom of the wet pit by means of five spuds or pilings driven into the ground and attached to the plant.

Plaintiff, by way of affidavit, has set out the nature of his employment and the circumstances surrounding his injury as follows:

    "My first duties with Material Service Corp.
  was as deck hand on one of their tug boats which
  moved the loading barges in position to be loaded
  and taking the barges already loaded and making
  up tow for transporting them in quantities on the
  Illinois River. Another boat would pick up the
  barges when we had a full tow and take them to
  their destination. I remained on this job until
  cold weather prevented operation of the screening
  Plant in Morris and then they moved all the

  equipment to Lockport, Ill. There I worked on
  repairs as Laborer all Winter and when the
  weather permitted they moved the Plant back to
  Morris for operation again. Then I was working as
  Laborer in Morris on the Floating equipment. Then
  after a short while reduction of force became
  imperative and rather than laying me off I was
  transferred to Lockport, Ill. to work in their
  Shop operations there. But after 3 weeks I was
  called back to Morris to work as helper on the
  Gravel Screening Plant as production had
  increased to the point where we had to run two
  shifts.

    I worked on the Gravel Screening Plant as my
  regular job. But on Saturday May 5, 1956 a man
  was absent in the Sand Screening Plant and I was
  taken from my regular job and ordered to perform
  his duties and I did so. While I was working on
  this job it requires you to go from the Plant to
  the loading barge and check the load. And I
  checked the load and was stepping from the
  loading barge to the Plant where there is a cable
  used for moving the loading barge which was
  definitely rigged in an unsafe manner that I was
  unaware of since it was my first day on this
  particular job. The cable should have been hooked
  from the first cavel on the loading barge to the
  power Winch located on the screening Plant. But
  instead it was hooked on the last cavel on the
  far end of the barge and just run alongside all
  the other cavels back to the power Winch and when
  strain was taken on the cable or the barge moved
  it was apt to slip off the first cavel. Since the
  loading barge was about 28 inches lower than the
  Plant at this time. And that's what it did just
  as I stepped from the barge to the plant. Ted
  Wills was taking strain on the cable with the
  power Winch that I was unaware of at the time and
  the cable slipped and hit me about my feet and
  threw me against the barge and then into the
  water."

Although the Jones Act provides a cause of action for "any seaman who shall suffer personal injury in the course of his employment", since the passage of the Longshoremen's and Harbor Workers' Compensation Act in 1927, the Supreme Court has restricted the benefits of the Jones Act to "members of the crew of a vessel". Senko v. La Crosse Dredging Corp., 352 U.S. 370, 371, 77 S.Ct. 415, 416, 1 L.Ed. 404; Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045. The determination of whether plaintiff is a "member of the crew of a vessel" is a finding of fact based upon the circumstances of the instant case. Senko v. La Crosse Dredging Corp., supra. Though such factual determination is usually for the jury, it is clear that I may hold the evidence insufficient to warrant such a finding by the jury and rule as a matter of law that plaintiff is not a "member of the crew of a vessel". Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 275.

It has been generally stated by the courts and commentators that the test for determining whether an employee is a "member of the crew of a vessel", is as follows: (1) The vessel must be in navigation; (2) There must be a more or less permanent connection with the vessel; (3) The worker must be aboard primarily to aid in navigation. Senko v. La Crosse Dredging Corp., supra, 352 U.S. at page 375, 77 S.Ct. at page 416; Nelson v. Greene Line Steamers, 6 Cir., 255 F.2d 31, 33; Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 202 F.2d 383, 388; Carumbo v. Cape Cod S.S. Co., 1 Cir., 123 F.2d 991, 995; Morris, the Law of Seamen, Vol. 2, Sec. 656, p. 318. However, it is clear that the above test cannot be applied literally because, for example, in regard to the requirement that a vessel be in navigation, it has been held that a vessel moored to a wharf, or actually spudded into the bottom of the sea, as well as dredges, are covered by the Jones Act. Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737; Senko v. La Crosse Dredging Corp., supra; Gianfala v. Texas Company, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775; McKie v. Diamond Marine Co., 5 Cir., 204 F.2d 132. As to the requirement that the worker must be primarily aboard to aid in navigation, it is more or less accepted that nearly everyone who is aboard the vessel in a capacity which contributes to the accomplishment of her mission is covered by the Jones Act. Perez v. Marine Transport Lines, D.C., 160 F. Supp. 853, 855, and cases therein cited. The difficulties which may arise in applying the above test are aptly demonstrated by the dissenting opinions of Mr. Justice Harlan in Butler v. Whiteman, supra; Grimes v. Raymond Concrete Pile Co., supra; and Senko v. La Crosse Dredging Corp., supra. The Court, in Perez v. Marine Transport Lines, supra, being well appraised of the perplexities involved in the application of the above test, has, after a consideration of all the authorities, proposed the following common sense test at page 856 of 160 F. Supp.:

    "As long as a vessel is buoyant and capable of
  being floated from one location to another to
  accomplish her mission, members of her crew,
  meaning everyone employed aboard, on a more or
  less permanent basis, may be covered by the Jones
  Act."

Unfortunately, the very simplicity of such a test lends itself to such broad speculations, that its usefulness would be lost in the maze of particular situations. After a careful reading of the various decisions as well as commentaries, it seems to me that it would be error to formulate any test for the determination of Jones Act coverage since no test would adequately cover the full gamut of decisions which now give interpretation to the Act. Until the Supreme Court of the United States lays down a precise test capable of factual analysis, it is my opinion that, in each case involving the question of Jones Act coverage, the court must be appraised and the jury instructed as to the impact of the various court holdings in regard to the broad test generally employed. Armed with this knowledge, the emphasis should be placed upon the facts of the instant case.

I am well aware of recent decisions which demonstrate strong inclination upon the part of the Supreme Court to leave the factual determination of whether an employee is a "seaman" within the purview of the Jones Act in the hands of the jury. Butler v. Whiteman, supra; Grimes v. Raymond Concrete Pile Co., supra. However, it is my opinion that, as a matter of law (Desper v. Starved Rock Ferry Co., supra), plaintiff was not a "member of the crew of a vessel" at the time of his injury and is not entitled to any benefits under the Jones Act. My decision is not based upon any general test, but upon an exhaustive analysis of the various cases and commentaries interpreting the coverage of the Jones Act as seen in light of the plain uncontradicted facts of the instant case. For purposes of clarity, I have attempted to summarize the relevant factors:

  (1) The sole and exclusive use made of the canal
      and wet pit which were excavated by defendant
      on defendant's private property, are in aid
      of defendant's mining operations and to gain
      access to the Illinois River. Iowa-Wisconsin
      Bridge Co. v. U.S., 84 F. Supp. 852, 866, 114
      Ct.Cl. 464;

  (2) The dredge was actually in an artificial
      water basin created by its own work and on
      land belonging to defendant. The work was not
      being done upon a navigable waterway of the
      United States, but was a dredging operation
      in all respects as if the dredge were
      actually located on land. Beddoo v. Smoot
      Sand & Gravel Corp., 76

      U.S.App.D.C. 39, 128 F.2d 608, 610;

  (3) Defendant's processing plant upon which
      plaintiff worked at the time of his injury
      was firmly attached to the bottom of the wet
      pit by means of spuds or pilings. It never
      has moved from the wet pit. It is shifted
      slightly to keep up with mining operations.
      The factual situation is entirely different
      from Grimes v. Raymond Concrete Pile Co.,
      supra; Senko v. La Crosse Dredging Corp.,
      supra; Gianfala v. Texas Company, supra.
      Plaintiff's relationship to the loading
      barges "did not pertain to navigation" and
      are much like those described by the Supreme
      Court in South Chicago Coal & Dock Co. v.
      Basset, 309 U.S. 251, 260, 60 S.Ct. 544, 549,
      84 L.Ed. 732. See also Perez v. Marine
      Transport Lines, supra;

  (4) Plaintiff was not employed upon defendant's
      "processing plant" or "barges" on a more or
      less permanent basis. On the contrary,
      plaintiff was employed as a laborer, was a
      member of a labor union, and worked on
      barges, in defendant's shop in Lockport,
      Illinois, on the gravel screening plant, and
      when a man was sick, on the sand screening
      plant where he was injured. Desper v. Starved
      Rock Ferry Co., supra; Zientek v. Reading
      Co., 3 Cir., 220 F.2d 183; Merritt-Chapman &
      Scott v. Willard, 2 Cir., 189 F.2d 791; Perez
      v. Marine Transport Lines, supra.

Since I hold that plaintiff does not fall within the purview of the Jones Act, I do not reach the remaining two affirmative defenses. The complaint is dismissed. Judgment for defendant. Beegle v. Thomson, 7 Cir., 138 F.2d 875, 880, 881; Lavine v. Shapiro, 7 Cir., 257 F.2d 14; Foster v. General Motors Corp., 7 Cir., 191 F.2d 907, 912.

19591001

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