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Berry v. American Commercial Barge Lines

OPINION FILED MAY 27, 1983.

PATRICK H. BERRY, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

AMERICAN COMMERCIAL BARGE LINES ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Madison County; the Hon. Horace Calvo, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Plaintiff Patrick Berry was employed as a first class shipfitter at facilities operated by subsidiaries of American Commercial Barge Lines (ACBL) on the Mississippi River at Alton, Illinois. On November 29, 1973, he was working on an inclined metal surface known as a slope sheet on barge vessel S-127 which had been brought to ACBL's floating drydock for repairs. While assisting a welder in replacing a metal patch on that surface, the plaintiff was temporarily blinded by the flash from the arc of the welder's rod when the welder accidently struck an arc in front of the plaintiff. He then lost his balance and attempted to descend the slope sheet so that he would not fall, but his foot became caught on a piece of metal called a scab, which is welded temporarily onto metal surfaces to give repair workers more secure footing. The plaintiff fell, injuring his left knee.

On December 10, 1973, the plaintiff again sustained injuries to that knee. He was assigned to do repair work in the port side shaft alley of the motor vessel R.W. Naye, which had also been brought to the floating drydock. As he was heating shaft couplings with a rosebud torch, he slipped on grease which had accumulated on the floor of the shaft alley compartment.

The plaintiff brought suit in the circuit court of Madison County against ACBL and two of its subsidiaries, Jeff Boat, Inc., and Louisiana Dock Boat Co., Inc. (La. Dock), to recover for his injuries. This action was based, inter alia, on general principles of negligence and maritime law and on the Jones Act (46 U.S.C. § 688 et seq.). The case was submitted to the jury against ACBL and La. Dock under the Jones Act counts, and the jury awarded the plaintiff $250,000 in damages against both defendants. Judgment was entered upon that verdict. Defendants ACBL and La. Dock appeal from that judgment against them, and the plaintiff has brought a cross-appeal in which he requests that, if it is determined that he is not covered by the Jones Act as a matter of law, then the court's order dismissing his maritime and negligence counts should be reversed.

The defendants present three assignments of error: (1) The trial court should have directed verdicts in their favor because the evidence introduced at trial fails to show that the plaintiff was a "seaman." (2) The court erred in giving certain instructions proferred by the plaintiff, and (3) the court should have granted defendants' motion for a mistrial, based upon the conduct of plaintiff's counsel in examining a witness called by him under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60), now section 2-1102 of the Code of Civil Procedure.

The first argument made by the defendants presents another variation on the Jones Act "riddle," as characterized by the Fifth Circuit (Ardoin v. J. Ray McDermott & Co. (5th Cir. 1981), 641 F.2d 277, appeal after remand (5th Cir. 1982), 684 F.2d 335; Offshore Co. v. Robison (5th Cir. 1959), 266 F.2d 769), namely, "When is a maritime worker a seaman?" More accurately, this case asks, "When is a jury question presented concerning whether a shipfitter injured while working on vessels on a floating drydock is a seaman?" The solution to this "riddle" requires more "clues," in the form of the facts of this case.

The facilities at which the plaintiff was employed were located on the Mississippi River at the foot of Plum Street in Alton, Illinois. They consisted of office, machine and mechanical barges, as well as two floating drydocks. The barges were permanently secured to pylons by cables, and one would obtain access to the barges through a walkway from shore. The record indicates that none of the facilities at Alton were located ashore.

Although both floating drydocks could be moved from place to place, neither had any motive power, and they would have to be transported by a motor vessel. The drydocks were attached to large steel arms by cables. A vessel needing repair would move close to a drydock, or, if it were not self-propelled, it would be brought to the drydock, generally by the ACBL motor vessel Little Giant. The drydock would then be partially submerged, allowing the vessel to enter, and raised again, the vessel along with it.

The plaintiff was first hired by ACBL as a laborer and deckhand on the Little Giant. In that capacity, he was required to use lines and wires to attach the Little Giant to other vessels. Eventually, the plaintiff was promoted to second class fitter, and then again to first class fitter. As a fitter, he worked with torches and sledge hammers to fit steel into place on vessels in need of repair. However, he also continued to handle lines and wires, even when he worked on the drydock, because the vessels brought to the drydock had to be secured. The plaintiff recalled that he usually operated lines and wires about twice a day. Gary Bidwell, who was with the plaintiff on the R.W. Naye on December 10, 1973, and who had been employed by ACBL, always as a first class welder, testified that when he was assigned to work on a drydock, he would work with lines as the drydock was raised or lowered.

The plaintiff did not sleep on board any vessel or other facility. He lived ashore, reported for work as scheduled and received assignments to repair whatever motor vessels or barge vessels were in need of repair. These assignments could require him to work on a vessel in the drydock or on a vessel afloat in the Mississippi. He could perform repairs on a vessel belonging to ACBL or one of its subsidiaries, or on a vessel belonging to a concern unconnected with ACBL. The La. Dock and Jeff Boat Companies "provide the bulk of service" for ACBL and its barge companies, according to ACBL's vice-president and general counsel, but their facilities are operated independently and thus do repair and fabrication work on non-ACBL vessels. The R.W. Naye and the barge vessel S-127, on both of which the plaintiff was injured, were owned and operated by ACBL or subsidiaries. At the time of his injuries, the plaintiff was employed by La. Dock, being the ACBL subsidiary concerned with ship repair, and his paychecks reflected that ACBL acted as the paying agent for La. Dock.

• 1 Recovery under the 1920 amendment to the Merchant Marine Act, commonly known as the Jones Act, is limited to "any seaman" suffering personal injury in the course of his employment or to the personal representative of any seaman who dies as a result of such injury. (46 U.S.C. § 688.) The provisions of the Act itself do not define the term "seaman," although there are many decisions which purport to do so. Because the question of whether an individual is a seaman for purposes of the Jones Act depends upon the facts of the particular case and the activity in which he was engaged at the time of the injury (Desper v. Starved Rock Ferry Co. (1952), 342 U.S. 187, 96 L.Ed. 205, 72 S.Ct. 216), it is only when the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences, that this question should be decided as a matter of law. Ardoin v. J. Ray McDermott & Co.; Burns v. Anchor-Wate Co. (5th Cir. 1972), 469 F.2d 730.

• 2 In deciding whether a plaintiff's status as a seaman presented a jury question, the authorities under the Jones Act have been virtually unanimous in applying the following three-part test to various sets of facts: (1) that the plaintiff was injured upon a vessel in navigation, (2) that the plaintiff was aboard that vessel primarily to aid in navigation, and (3) that the plaintiff had a more or less permanent connection with that vessel or with a specific group or fleet of vessels. (Abshire v. Seacoast Products, Inc. (5th Cir. 1982), 668 F.2d 832; Baker v. Pacific Far East Lines, Inc. (N.D. Cal. 1978), 451 F. Supp. 84; Griffith v. Wheeling Pittsburgh Steel Corp. (3d Cir. 1975), 521 F.2d 31, cert. denied (1976), 423 U.S. 1054, 46 L.Ed.2d 643, 96 S.Ct. 785; Offshore Co. v. Robison.) This test rests upon several unexplained definitions such as the terms "navigation" and "aid to navigation." But, in this case, it is the term "vessel" which the defendants claim presents a threshold issue, resolution of which in their favor as a matter of law would obviate applying the three-part test.

The plaintiff contends that the defendants presented their case in the trial court under the theory that the R.W. Naye, the barge S-127 and the floating drydock could be considered "vessels" by the jury and thus they should be prevented from denying their status as vessels to this court. However, in moving for a directed verdict, the defendants raised the issue of whether the plaintiff was not a seaman as a matter of law, and the defendants are correct that the status of the drydock as a vessel is an integral part of that question. Moreover, the defendants' written post-trial motion specifically argued that there was no evidence to prove the existence of any vessel in navigation. Thus, the theory that the floating drydock is not a vessel as a matter of law is not a contention which was never presented to the trial court.

• 3 Essentially, the defendants insist that the floating drydock upon which the plaintiff worked was not a vessel as a matter of law, and therefore, the plaintiff could not be a seaman. The defendants accurately note that the Federal courts> have developed the rule that a floating drydock is not a vessel as a matter of law when it is moored and in use as a drydock. (Nevel v. Todd Shipyards Corp. (N.D. Cal.), 1978 Am. Maritime Cases 2230; Keller v. Dravo Corp. (5th Cir. 1971), 441 F.2d 1239, cert. denied (1972), 404 U.S. 1017, 30 L.Ed.2d 665, 92 S.Ct. 679; Chahoc v. Hunt Shipyard (5th Cir. 1970), 431 F.2d 576, cert. denied (1971), 401 U.S. 982, 28 L.Ed.2d 333, 91 S.Ct. 1198; Atkins v. Greenville Shipbuilding Corp. (5th Cir. 1969), 411 F.2d 279, cert. denied (1969), 396 U.S. 846, 24 L.Ed.2d 96, 90 S.Ct. 105; compare United States v. Moran Towing & Transportation Co. (4th Cir. 1967), 374 F.2d 656, vacated on other grounds sub nom. United States v. Bethlehem Steel Co. (1968), 389 U.S. 575, 19 L.Ed.2d 775, 88 S.Ct. 689 (floating drydock under tow in navigable waters held to be a vessel); Bernardo v. Bethlehem Steel Co. (2d Cir. 1963), 314 F.2d 604 (judgment entered on jury verdict in favor of defendant and affirmed on appeal, thus status of floating drydock as not a vessel as a matter of law, not presented); contra, Rogosich v. Union Dry Dock & Repair Co. (3d Cir. 1933), 67 F.2d 377.) But this proposition is fatal to the plaintiff's claim only if the plaintiff does not contend to have been attached to any other vessel or fleet of vessels. For example, in Nevel, Chahoc and Atkins, it does not appear that the drydock workers maintained that they were members of the crew of the vessels they were repairing or of a fleet containing those vessels. In Keller, the court held that the disabled vessel upon which the plaintiff worked had been removed from navigation, and thus could not support a claim of unseaworthiness. Similarly, in Cook v. Belden Concrete Products, Inc. (5th Cir. 1973), 472 F.2d 999, cert. denied (1973), 414 U.S. 868, 38 L.Ed.2d 116, 94 S.Ct. 175, the stationary construction platform on which the plaintiff was injured was held to be indistinguishable from a floating drydock, and there was no other vessel to which the plaintiff could be attached as a seaman, because the plaintiff was working on an uncompleted barge when he was injured. (See also Buna v. Pacific Far East Line, Inc. (N.D. Cal. 1977), 441 F. Supp. 1360 (paint float upon which plaintiff worked not a vessel, plaintiff had no more or less permanent connection with vessel being painted).) Other cases in which the plaintiff worked on a permanently attached floating platform, but did not work on a vessel temporarily on that platform, are of no assistance to the defendants. Watkins v. Pentzien, Inc. (5th Cir. 1981), 660 F.2d 604, cert. denied (1982), 456 U.S. 944, 72 L.Ed.2d 467, 102 S.Ct. 2010; Leonard v. Exxon Corp. (5th Cir. 1978), 581 F.2d 522, cert. denied (1979), 441 U.S. 923, 60 L.Ed.2d 397, 99 S.Ct. 2032; Blanchard v. Engine & Gas Compressor Services, Inc. (5th Cir. 1978), 575 F.2d 1140; Powers v. Bethlehem Steel Corp. (1st Cir. 1973), 477 F.2d 643, cert. denied (1973), 414 U.S. 856, 38 L.Ed.2d 106, 94 S.Ct. 160.

• 4 More analogous to the facts at bar is Mietla v. Warner Co. (E.D. Pa. 1975), 387 F. Supp. 937. In that case, the plaintiff was employed as a barge attendant, whose duties included keeping loaded barges free of water, checking the towing gear and looking for safety violations. He was assigned to maintain the barges which tied up to Pier 55 or to a permanent floating dock known as barge No. 4, both of which facilities the plaintiff conceded were not vessels. Nonetheless, the district court held that the plaintiff's status as a seaman was for the jury to decide, because the plaintiff could be considered to be a member of the crew of the barges which he tended. Mietla stands for the principle that a plaintiff who frequently works on a structure which is not a vessel is not precluded from being a seaman, if, in his employment he is assigned to vessels in navigation. In the present case, this means that, if the plaintiff met the three requirements of being a crew member of the R.W. Naye or the S-127 or a fleet which contained them, the fact that he repaired them while on a moored floating drydock does not deny him recovery under the Jones Act. These three requirements must now be examined in greater detail.

(1) Were the R.W. Naye and the barge S-127 "vessels in navigation?" It is not contested that the motor vessel and the barge are, in fact, vessels. Nor does their presence in the drydock for repairs mean that they were not in navigation at the time of the plaintiff's injuries. (Bodden v. Coordinated Caribbean Transport, Inc. (5th Cir. 1966), 369 F.2d 273; Keymon v. Tennessee Towing Co. (6th Cir. 1961), 296 F.2d 785.) The defendants do not represent the Naye and the S-127 as having been removed from service for a season or other substantial period of time (compare Garcia v. Universal Seafoods, Ltd. (W.D. Wash. 1978), 459 F. Supp. 463; Desper v. Starved Rock Ferry Co.; Hawn v. American S.S. Co. (2d Cir. 1939), 107 F.2d 999, with Sweeney v. American Steamship Co. (6th Cir. 1974), 491 F.2d 1085) or as undergoing repairs of such a major character as to amount to a withdrawal from navigation (Wixom v. Boland Marine & Manufacturing Co. (5th Cir. 1980), 614 F.2d 956; see also Delome v. Union Barge Line Co. (5th Cir. 1971), 444 F.2d 225, cert. denied (1971), 404 U.S. 995, 30 L.Ed.2d 547, 92 S.Ct. 534). Therefore, the jury could properly determine that these vessels were in navigation when the plaintiff was injured.

(2) Was the plaintiff acting "primarily in aid of navigation" of those vessels at the time of his injuries? In keeping with the remedial purposes of the Jones Act, the phrase "primarily in aid of navigation" has been construed far beyond its natural meaning to include such personnel as hairdressers (Mahramas v. American Export Isbrandtsen Lines, Inc. (2d Cir. 1973), 475 F.2d 165) and waitresses (Buford v. Cleveland & Buffalo Steamship Co. (7th Cir. 1951), 192 F.2d 196), "as well as other persons not subject to being tattooed like ordinary seamen." (Perez v. Marine Transport Lines, Inc. (E.D. La. 1958), 160 F. Supp. 853, 855.) All that is necessary is that the duties of the plaintiff must have contributed to the vessel's function or to the accomplishment of its mission. Baker v. Pacific Far East Lines, Inc.; Wilkes v. Mississippi River Sand & Gravel Co. (6th Cir. 1953), 202 F.2d 383, cert. denied (1953), 346 U.S. 817, 98 L.Ed. 344, 74 S.Ct. 29.

The defendants are correct that, in determining whether the plaintiff acted primarily in aid of navigation as a fitter, his assigned tasks as a deckhand on the Little Giant are not relevant. (White v. Louisiana Menhaden Co. (E.D. La. 1980), 498 F. Supp. 126.) It is also well accepted that, although the throwing and securing of lines is normally a seaman's chore, a plaintiff who occasionally engages in that task is not necessarily a seaman. (South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 84 L.Ed. 732, 60 S.Ct. 544; Salgado v. M.J. Rudolph Corp. (2d Cir. 1975), 514 F.2d 750; Griffith v. Wheeling Pittsburgh Steel Corp.) The significant question in the second portion of the "seaman" test is therefore whether the plaintiff, when performing the duties of a fitter, contributed to the function of the vessels which were in drydock or to the accomplishment of their mission.

Other decisions have held that plaintiffs employed in various repair capacities were primarily aiding in navigation. (Porche v. Gulf Mississippi Marine Corp. (E.D. La. 1975), 390 F. Supp. 624 (plaintiff welded pipe to be laid from barge); Braniff v. Jackson Ave.-Gretna Ferry, Inc. (5th Cir. 1960), 280 F.2d 523 (plaintiff employed as master mechanic on ferries); Lukos v. Chesapeake & Ohio Ry. Co. (W.D. Mich. 1954), 120 F. Supp. 296 (plaintiff assigned general cleaning and painting duties); Rogosich v. Union Dry Dock & Repair Co. (plaintiff was carpenter on floating drydock); contra, Specht v. Pittsburgh Coal Co. (W.D. Pa. 1975), 432 F. Supp. 717; Chapman v. M/G Transport Services, Inc. (W.D. Pa. 1977), 432 F. Supp. 723.) The results reached in these cases comport with the broad reading which the courts> have given to the phrase "in aid of navigation." In a strictly logical sense, the work performed by a shipfitter or similar repair worker is preparatory to, and is the first step towards rendering a vessel ready again for navigation or preventing it from being removed from navigation. It would be incongruous to hold that such a worker, who has a direct connection with making or keeping a vessel navigational, is not "primarily in aid of navigation" as a matter of law, while allowing the jury to determine that other seaside workers, whose connection with navigation is indirect at best, are seamen. The proper rule, derived from the authorities listed above, is that whether a plaintiff acted "primarily in aid of navigation" at the time of his injury is a jury question if the plaintiff was a repair or maintenance worker who was directly connected with keeping a vessel in navigation or preparing it to retain navigational capacity. As the plaintiff in this case met this criterion, resolution of the second part of the "seamen" test was properly left to the jury.

(3) Did the plaintiff have a "more or less permanent connection" with the R.W. Naye and the barge S-127 or with a specific group or fleet of vessels which contained them? This issue is the heart of the defendants' challenge to the court's failure to direct a verdict in their favor. The plaintiff does not argue that he had any sort of permanent attachment to either the Naye or the S-127, individually, nor does this record present facts to support such a claim. Consequently, the issue posed by this branch of the "seaman" test is if a jury question is presented concerning whether the plaintiff was "more or less permanently connected" with a fleet containing the Naye and the S-127. The defendants contend that no such connection was established, as a matter of law, and point to several decisions which they claim are analogous to the facts at bar.

In Baker v. Pacific Far East Lines, Inc., the plaintiff served as a replacement member of a shoregang, which was assigned to cleaning, maintenance, painting and other duties on the defendant's vessels. Although approximately 90% of the plaintiff's employment time was spent upon barges and other vessels, he "rarely spent more than several consecutive hours aboard any given vessel" (451 F. Supp. 84, 88), and could not identify which ships he cleaned or maintained on any given day, or even the ships upon which he was injured. The district court held that the plaintiff's connection with any group of vessels was insufficiently permanent to justify a finding that he was a seaman, at least in part because the defendant's fleet consisted of between 500 and 1,000 barges. See also Buna v. Pacific Far East Line, Inc., in which the plaintiff, also employed by the same defendant as a shoregang worker, attested that his shoreside tasks included, inter alia, moving furniture in the defendant's office building, painting stripes in the defendant's parking lots and performing maintenance in the defendant's storerooms and office.

The plaintiffs or plaintiffs' decedents in Bertrand v. International Mooring & Marine, Inc. (W.D. La. 1981), 517 F. Supp. 342, worked as members of an anchor-handling and mooring crew, thereby performing classical mariner's work. They were injured in an auto accident in the course of their employment. As members of the anchor-handling and mooring crew, they spent between 90 and 100% of their work hours aboard vessels, readying them for their employer to use them to work on offshore drilling vessels. These men lived aboard the vessels for the duration of their assignments, but those assignments would range from several hours to about seven days, the average assignment lasting between four and five days. The court found that none of these workers had any sort of permanent connection with a specific group of vessels, and directed verdicts in their employer's favor. Yet, it was also noted in the opinion that the employer did not own any vessels, and even if an independent division of the defendant-employer did own five vessels, the evidence revealed that one of the men had worked on one of these vessels twice, while another had worked on one of them only once.

Baker and Bertrand are examples of two categories of decisions which are of little relevance to the facts at bar. The first of these consists of those cases in which the plaintiff was truly a "casual worker upon the water" (South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 260, 84 L.Ed. 732, 738, 60 S.Ct. 544, 549), by virtue of the amount of time the plaintiff spent on land in the course of his employment, or the nature of his duties while ashore. (Baker; Buna; White v. Louisiana Menhaden Co. (plaintiff, normally employed on fishing vessel, was assigned to perform maintenance work at defendant's harbor facilities during four-month off season); Fazio v. Lykes Brothers Steamship Co. (5th Cir. 1978), 567 F.2d 301 (plaintiff, as member of shoregang, could work on no vessel at all on any particular day); Rotolo v. Halliburton Co. (5th Cir. 1963), 317 F.2d 9, cert. denied (1963), 375 U.S. 852, 11 L.Ed.2d 79, 84 S.Ct. 111 (plaintiff and similar employees spent 80-90% of work time as welders at base shop on land); Thibodeaux v. J. Ray McDermott & Co. (5th Cir. 1960), 276 F.2d 42 (plaintiff, as welder in defendant's fabricating division, customarily worked on vessels under construction, conversion or outfitting).) The second category of cases includes those in which the plaintiff had only a temporary connection with the vessel upon which he was injured, and in addition, could not identify a specific group of vessels to which he could claim permanent attachment. (Bertrand; Guidry v. Continental Oil Co. (5th Cir. 1981), 640 F.2d 523, cert. denied (1981), 454 U.S. 818, 70 L.Ed.2d 87, 102 S.Ct. 96; Richardson v. Norfolk Shipbuilding & Drydock Corp. (E.D. Va. 1979), 479 F. Supp. 259, aff'd (4th Cir. 1980), 621 F.2d 633; Lotzman v. ...


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