Appeal from the United States District Court for the Central District of Illinois. No. 83-1154 -- Robert D. Morgan, Judge.
Before WOOD and CUDAHY, Circuit Judges, and NICHOLS, Senior Circuit Judge.*fn*
WOOD, Circuit Judge. On July 13, 1981, appellant Hubert Johnson sustained injuries while working on a construction barge owned by appellee Beasley Construction Company ("Beasley"). Appellant sued Beasley under the Jones Act, 46 U.S.C. § 688, and Beasley moved for summary judgment on the ground that appellant was not a "seaman" as required under the Act. The district court granted Beasley's motion and entered judgment in its favor. We affirm.
The facts are not in dispute. Beasley is a structural steel contractor. It was hired to remove the swing span portion of a railroad bridge over the Illinois River at Pearl, Illinois, and to replace the span with a lift section to facilitate navigation in the river channel (the existing swing span rested on a pier-supported turntable that created an obstruction in the middle of the navigation channel). The lift section was to be raised by machinery situated in a control house set on concrete pedestals on the south side of the bridge. Because the navigation channel had to remain unobstructed during the time Beasley was constructing the lift section, the lift section had to be assembled on the west bank of the river on falsework downstream from the bridge crossing (the falsework consisted of towers made of steel braces set upon pilings that had been driven into the river bottom). Following construction of the lift section, it was to be floated into the gap left by the removal of the swing span and then hoisted into place for incorporation into the existing bridgework.
Appellant was a foreman in charge of a crew whose responsibilities were to construct the lift section and the control house. Because the work was to be performed over water, Beasley employed several barges and a tugboat. One of the barges, called the JFB-15, was a steel-decked floating work platform on which had been installed a large lifting crane. The JFB-15 measured 135 feet by 40 feet by 8 feet, and had a displacement of 405 tons. It had no motive power of its own and no steering capability, and was not equipped with cabins, galley, fresh water storage, permanent toilets, or fixed navigational lights. The workers on the JFB-15 were transported to and from the barge daily.
The primary role of the JFB-15 was to provide a site for the assembly of the control house and to assist in the construction of the lift section on top of the falsework. The JFB-15 was also used to transport iron to the work site. On these occasions, a tugboat would push the barge downstream to points where the supply trucks could get close enough to be reached with the crane. Appellant and his crew would assist with loading and preparing lines to shore. Thereafter, the tugboat would push the barge back upstream.
On July 13, 1981, the day of appellant's injury, the specific project then ongoing was the construction of the control house. The JFB-15 was moored 80 to 100 feet from the shore at the edge of the river channel. Appellant was supervising the construction of the control house when Beasley's tugboat collided with a 2,000 pound beam protruding over the edge of the JFB-15. The beam pivoted after being struck and caught appellant's left leg, causing severe injury that eventually resulted in amputation of the leg. Appellant has received Illinois worker's compensation for his injury, but brought this suit because the Jones Act would allow him to recover traditional tort damages.
Claims brought under the Jones Act have not been litigated frequently in this circuit. We take this opportunity, therefore, to review briefly the development of the law in this area and what we believe to be the relevant and controlling principles. The Jones Act, 46 U.S.C. § 688, provides in relevant part:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury and in such action all statutes of the United States modifying or extending the common law of right or remedy in cases of personal injury to railroad employees shall apply. . . .
Under this Act, the prior maritime law of the United States was modified to give seamen the rights given to railway employees under the statutes comprising the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60, which provide a right of action by a railway worker for damages arising from the negligence of the owner of a railway on which the worker was employed at the time of the accident. See Lindgren v. United States, 281 U.S. 38, 40, 74 L. Ed. 686, 50 S. Ct. 207 (1930). Applying the principles of the railway statutes, the Supreme Court early on extended coverage under the Jones Act "to the liability of the owners of vessels for injuries to seamen extending territorially as far as Congress an make it go," id. at 47, consistent with admiralty jurisdiction.*fn1
Because the term "seaman" is not defined by the Jones Act, it has been left to the courts to define the compass of this term. Unfortunately, however, the case law interpreting the Jones Act has never been applied in a consistent manner. Not long after passage of the Act, the Supreme Court held that the term "seaman" was broad enough to include even longshoremen who were employed in maritime work on navigable waters, as their work was "a maritime service formerly rendered by the ship's crew." International Stevedoring Co. v. Haverty, 272 U.S. 50, 52, 71 L. Ed. 157, 47 S. Ct. 19 (1926). This decision "could have led, with the greatest of ease, to the conclusion that all maritime workers injured in the course of their employment were Jones Act seamen." G. Gilmore & C. Black, The Law of Admiralty § 6-21, at 330 (2d ed. 1975). The next year, however, Congress enacted the Longshoremen's and Harborworkers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 et seq., which provides for the payment of compensation to all maritime workers injured upon navigable waters, regardless of the negligence of their employers, except to an employee who is "a master or member of a crew of any vessel." Through judicial interpretation, the phrase "member of crew of any vessel" eventually became equated with the term "seaman," see Swanson v. Marra Brothers, Inc., 328 U.S. 1, 7, 90 L. Ed. 1045, 66 S. Ct. 869 (1946); Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 371, 1 L. Ed. 2d 404, 77 S. Ct. 415 (1957), thus making coverage under the acts mutually exclusive. The route by which the terms became equated is important because it sheds light on the ambit of Jones Act coverage.
In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 84 L. Ed. 732, 60 S. Ct. 544 (1940), the Supreme Court was faced with the question whether an employee who worked on a vessel used for fueling steamboats and whose chief task was to facilitate the flow of coal from his vessel to the boat being fueled was a member of a crew of the vessel and thus excluded from coverage under the LHWCA. The employer argued that the question whether the employee was a member of a "crew" was a question of law. The Court, however, concluded that "the word "crew" does not have an absolutely unvarying legal significance." Id. at 258. Accordingly, the determination whether a person is a "member of the crew," a word that has a "wide range of variation," id., is a question of fact to be left to the trier of fact. The Court did observe, however, that as used in the statute, "crew" appeared to mean "employees on the vessel who are naturally and primarily on board to aid in her navigation." Id. at 260. It concluded that because the employee's duties "did not pertain to navigation, aside from the incidental task of throwing the ship's rope or making the boat fast," id., and because he had no duties while the boat was in motion, his position was that of a longshoreman or other casual worker on water and thus covered by the LHWCA.
Bassett was relied on in another LHWCA case, Norton v. Warner Co., 321 U.S. 565, 64 S. Ct. 747, 88 L. Ed. 931 (1944). In Norton, the employee worked on a barge as a boatman; his duties consisted of taking general care of the barge. In determining whether he should be excluded from coverage under the LHWCA, the Court concluded:
If a barge without motive power of its own can have a "crew" within the meaning of the Act and if "crew" may consist of one man, we do not see why [the boatman] does not meet these requirements. . . . We said in the Bassett case that the term "crew" embraced those "who are naturally and primarily on board" the vessel "to aid in her navigation." [309 U.S. at] 260. But navigation is not limited to "putting over the helm." It also embraces duties essential for other purposes of the vessel. Certainly, members of the crew are not confined to those who can "hand, reef and steer." Judge Hough pointed out in The Buena Ventura, 243 F. 797, 799, that "every one is entitled to the privilege of a seaman who, like seamen, at all times contributes to the labors about the operation and welfare ...