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Dungey v. U.s. Steel Corp.

OPINION FILED SEPTEMBER 30, 1986.

JOHN DUNGEY, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

UNITED STATES STEEL CORPORATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of St. Clair County; the Hon. James K. Donovan, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 7, 1986.

Plaintiff, John Dungey, brought suit against defendant, United States Steel Corporation, under the Merchant Marine Act of 1920 (46 U.S.C. § 688 (1982)) commonly known as the Jones Act, and under the general maritime law of the United States, in the circuit court of St. Clair County to recover damages for personal injuries received in the course of his employment. After a trial before the court sitting without a jury, judgment was entered in favor of plaintiff. Both parties appeal.

Plaintiff was a member of Operating Engineers Local No. 520; he was employed by defendant as an oiler on a crane, mounted on two barges, welded together, which served as a floating work platform situated in the Mississippi River at the site of the construction of the Jefferson Barracks Bridge across the river in south St. Clair County, Illinois, connecting the States of Missouri and Illinois. Plaintiff's only duties were in connection with the oiling and greasing of the crane which was used to set structural steel in the construction of the bridge.

The crane was designed to move in a 360-degree circle and was referred to as a ringer crane. It was mounted on girders and beams welded to the deck of the barges. The platform on which the crane rested had no motive power, and when moved for any considerable distance, the use of a tugboat was required. Limited movement of the barge was possible by the use of winches which secured the anchor lines which positioned the barge in the river, and the movement of spuds that ran through the corners of the barge and were imbedded in the river bottom. Structural steel and supplies were transported to the platform by tugboat. Plaintiff had no duties associated with movement of the barge and was transported as a passenger morning and evening to and from the crane platform by tugboat. At noontime, the crew, consisting of the crane operator, some ironworkers, a mechanic and plaintiff remained on the platform and took their meals there. Plaintiff sometimes cooked for the men on facilities available in the heated work shed located on the deck.

On December 5, 1982, prior to plaintiff's accident, the platform broke loose from its moorings, struck the bridge, damaging the crane, and was propelled by the river current several miles downstream. The crane boom was severely damaged, and the barge was moved to shore by tugboat so that the crane could be repaired and rebuilt. Plaintiff was then assigned, along with members of other crafts, to a "bull gang" to repair the crane ashore.

After the crane was repaired, the barge platform was repositioned in the river and the boom was transported to the barge by tugboat. On December 30, 1982, the ironworker foreman assigned plaintiff the task of cleaning out the holes in the boom through which steel pins are inserted to connect the sections of the boom together and to the crane. Plaintiff used sandpaper, a brush and a grease gun to perform this task. While moving from one side of the boom to the other, plaintiff testified that he slipped on frost, fell from the girders which supported the ringer crane on the barge and onto the deck of the barge. A witness testified that grease and oil had accumulated on the girders and beams.

After a trial before the court, the court having denied defendant's jury demand because of late payment of the $50 jury fee required to be paid under section 27.1(5) of the act relating to clerks of courts (Ill. Rev. Stat. 1983, ch. 25, par. 27.1(5)), which was tendered after the cause was placed on the non-jury calendar, the court entered judgment for plaintiff for $650,000 and denied plaintiff's request for prejudgment interest, a ruling from which plaintiff has cross-appealed.

While numerous errors are relied upon by defendant for outright reversal or the award of a new trial, we conclude that the determination of plaintiff's status as a seaman is dispositive of this appeal; accordingly, we need not address the other errors relied on for reversal or the issue raised in plaintiff's cross-appeal.

• 1 In determining plaintiff's status as a seaman, we are, of course, governed by the Federal law developed in the cases decided under the Jones Act and the general maritime law. (Alton & Southern Ry. Co. v. Alton Transportation Co. (1980), 79 Ill. App.3d 591, 399 N.E.2d 173.) The establishment of plaintiff's status as a seaman governs his right to sue both under the Jones Act and under the general maritime law for unseaworthiness.

The determination of seaman status has been the subject of extensive litigation and is further complicated by the divergence of opinion as to the proper test to be employed in answering this question, developed in the case law in the courts of the United States Courts of Appeal, where most maritime litigation occurs. Furthermore, the Supreme Court of the United States has last spoken to this subject in two per curiam opinions in 1958 (Butler v. Whiteman (1958), 356 U.S. 271, 2 L.Ed.2d 754, 78 S.Ct. 734; Grimes v. Raymond Concrete Pile Co. (1958), 356 U.S. 252, 2 L.Ed.2d 737, 78 S.Ct. 687), and the prior decisions of the Supreme Court, many per curiam, are not particularly helpful in resolving this question. These decisions are reviewed at length in Offshore Co. v. Robison (5th Cir. 1959), 266 F.2d 769, considered the seminal case in answering what has been referred to as the "riddle" of who is a Jones Act "seaman."

The Jones Act gives to seamen the right to sue their employers for injuries occasioned by negligence. The Act does not define who is a seaman. A seaman has been identified as one who is a "master or member of the crew of a vessel" as those terms are used in the Longshoremen's and Harbor Workers' Compensation Act (hereinafter LHWCA; 33 U.S.C. § 901 et seq. (1927)), as that Act only provides coverage to longshoremen and harbor workers and not to masters or members of the crew of a vessel. (Swanson v. Marra Brothers Inc. (1946), 328 U.S. 1, 90 L.Ed. 1045, 66 S.Ct. 869; Senko v. LaCrosse Dredging Corp. (1957), 352 U.S. 370, 1 L.Ed.2d 404, 77 S.Ct. 415.) In other words, the LHWCA narrows the original scope of the Jones Act (see International Stevedoring Co. v. Haverty (1926), 272 U.S. 50, 71 L.Ed. 157, 47 S.Ct. 19) so that a seaman is one who is a member of the crew of a vessel, the terms being synonymous, and we may look to cases decided under the LHWCA to determine who is a seaman. (Ardoin v. J. Ray McDermott & Co. (5th Cir. 1981), 641 F.2d 277.) As noted in Ardoin, the phrase "member of the crew" is only slightly more illuminating than the word seaman.

In the early case South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 84 L.Ed. 732, 60 S.Ct. 544, the Supreme Court addressed the question whether plaintiff, a laborer who drowned, was a "member of the crew" and, therefore, not covered under the LHWCA. Decedent worked as a deckhand aboard a lighter, directing the flow of coal from the lighter to the vessel being fueled. He threw lines but performed no navigational duties; he occasionally did some cleaning of the boat; he held no maritime articles and slept and boarded off the boat. The court decided that decedent's status as a "member of the crew" was a factual question to be determined in the first instance by the administrative procedure provided under the LHWCA. The finding of the deputy commissioner, if there was evidence to support, was conclusive and final. Quoting from an early case, the court said, "`[w]hen the "crew" of a vessel is referred to, those persons are naturally and primarily meant who are on board her aiding in her navigation, without reference to the nature of arrangement under which they are on board.'" (Emphasis added.) (309 U.S. 251, 259, 84 L.Ed. 732, 737, 60 S.Ct. 544, 548, quoting The Bound Brook (D.C. Mass. 1906), 146 F. 160, 164.) The court reasoned that while decedent might be classified as a "seaman," he was distinct from a member of a "crew" and was, therefore, excluded from coverage under the Jones Act. The court concluded that there was evidence to support the administrative finding awarding compensation under the LHWCA.

• 2 Following the decision of the Supreme Court in South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 84 L.Ed. 732, 60 S.Ct. 544), the First Circuit decided Carumbo v. Cape Code S.S. Co. (1st Cir. 1941), 123 F.2d 991. Based on South Chicago Coal & Dock Co., the court held that the test to be applied in determining seaman status under the Jones Act involved three factors: (1) that the vessel be in navigation; (2) that plaintiff have a more or less permanent connection with the vessel; and (3) that plaintiff be aboard primarily to aid in navigation. We are here concerned only with the third factor.

This test was employed by other circuits, although the application of the test to the navigational duties performed by the injured plaintiff were not always clear. (See, e.g., Wilkes v. Mississippi River Sand & Gravel Co. (6th Cir. 1953), 202 F.2d 383; McKie v. Diamond Marine Co. (5th Cir. 1953), 204 F.2d 132.) The same test has been adopted by this court in Berry v. American Commercial Barge Lines (1983), 114 Ill. App.3d 354, 450 N.E.2d 436, where we reviewed a number of cases dealing with the status of the injured plaintiff as a seaman.

The cases emphasize that only where the evidence is clear and admits of but one conclusion can the question of seaman status be decided as a matter of law as the Act is to be given a liberal construction. "Except in cases where the underlying facts are undisputed, and the record reveals no evidence from which reasonable persons might draw conflicting inferences about these facts, the riddle of ...


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