Charleston and Savannah Jones Act Attorneys

The Jones Act and LHWCA covers those injured on a vessel.

In 2005, a U.S. Supreme Court case, Stewart v. Dutra, granted new maritime law personal injury rights to brown water mariners.  It held that a dredge is a vessel and, more broadly, it rejected a restrictive “in motion at the moment of injury” test that the insurance companies had pushed for.

The affected workers could be:

• Dredge workers
• Bridge construction workers
• Any other brown water mariner whose job connects him or her to a “special purpose vessel”

Justice Clarence Thomas—born in nearby Pinpoint, Georgia—stated, “The question is whether a dredge is a ‘vessel’ under the Longshore and Harborworkers’ Compensation Act (LHWCA) . . . we hold that it is.”  Among the several high-impact passages in the opinion are the following:

• Concerning a Jones Act “seaman” and a LHWCA “maritime worker”: “Thus the Jones Act and the LHWCA are complementary regimes that work in tandem: The Jones Act provides tort remedies to sea-based maritime workers, while the LHWCA provides workers’ compensation to land-based maritime employees.”
• On if it is necessary for a “special purpose” vessel, such as a dredge, to actually be “in navigation” (in motion) at the time of injury: "Simply put, a watercraft is not ‘capable of being used’ for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement."
• Reiterating its own previous rejection of a “snapshot” test for the Jones Act seaman status requirement and rejecting for the first time a “snapshot test for Jones Act and LHWCA “vessel” definition purposes: “Looking at whether a watercraft is motionless or moving is the sort of ‘snapshot’ test that we rejected in Chandris.  Just as a worker does not ‘oscillate’ back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured…neither does a watercraft pass in and out of Jones Act coverage depending on whether it was moving at the time of the accident.”

FEDERAL TRIAL COURT HOLDS THAT A SPUDDED-DOWN “DOCK BARGE” IS A VESSEL UNDER LHWCA AND U.S. SUPREME COURT TEST IN STEWART v. DUTRA

A recent case from a federal trial court in the Western District of Pennsylvania holds that a “dock barge” spudded down – with 35,000 pounds of concrete -- into a riverbed between 2003 and 2007 is not “permanently moored” and is therefore a “vessel” for purposes of vessel negligence under 33 U.S.C. Sec. 905(b). Martin v. Matt Canestrale Contracting, Inc., 2009 U.S. Dist. Lexis 84426 (W.D. Pa., filed Sept. 16, 2009).

In Martin, the defendant sank the barge’s spud ten feet into the river bottom and filled it with 35,000 pounds of concrete. Defendant’s expert, describing the barge as a leaking “hulk” full of river water, stated that, “to remove the barge from its present location. . .a towboat, a work flat, a mud barge, a 150-tone crane equipped with a 150-pound load block and clamshell bucket and at least two small spuds and at least five pumps will be needed. [Defendant’s expert] estimates that the removal of the barge from its present location would take at least three full days and would cost approximately $35,000.” Martin, 2009 U.S. Dist. Lexis 84426 at *11-12.

The Martin Court further stated: “Here, the Barge ACBL was stationary and was not being used as a means of transportation on the water. The issue, therefore, is whether Barge ACBL was capable of being used as a means of transportation on water. In order to make this determination, it must be determined whether it was a practical possibility or merely a theoretical possibility that the watercraft could be used as a means of transportation. . .Viewing the evidence in favor of the non-moving party in this situation, Barge ACBL could practically be used as a means of maritime transportation. . .Kroll [Martin’s expert] stated that the spud could be raised in a matter of minutes, and at a relatively modest cost.” Martin, 2009 U.S. Dist. Lexis 84426 at *41-42.

The Court explained its decision further:

“The Supreme Court provided a framework for determining the vessel status of a watercraft in Stewart v. Dutra Construction Co., 543 U.S. 481, 125 S. Ct. 1118, 160 L. Ed. 2d 932 (2005). . . The permanency of the mooring, therefore, may be evidence whether the watercraft's use as a means of transportation is practical, but permanency is not the sole inquiry and is not the only factor.”

. . .

“Gross v. Tonomo Marine, Inc., No. 02-1317, 2005 U.S. Dist. LEXIS 24323, at *3 (W.D. Pa. July 25, 2005) (report and recommendation adopted by Gross v. Tonomo Marine, Inc., No. 02-1317, 2005 U.S. Dist. LEXIS 17668 (W.D. Pa. Aug. 23, 2005)), involved a flat-bottomed platform crane that was sitting on a barge; the barge was floating and was anchored into the river bed by a spud. The barge had no means of self-propulsion, but was capable of being towed to various locations. Id at *3. While the plaintiff was unloading bundles of iron ingots from a barge onto a flatbed truck, the plaintiff was injured when struck by the beam of the crane. The crane was owned by his employer. Id. The plaintiff sued his employer alleging negligence in violation of general maritime obligations. The plaintiff moved for summary judgment on the issue whether the "crane barge" was a vessel. Id. at **4-5. The court granted the plaintiff's motion, holding that the employer's "crane barge was . . .a 'vessel' for purposes of admiralty law." Id. at **16-17.

. . .

“Here, Barge ACBL 2870 was stationary and was not being used as a means of transportation on water. The issue, therefore, is whether Barge ACBL 2870 was capable of being used as a means of transportation on water. In order to make this determination, it must be determined whether it was a practical possibility or merely a theoretical possibility that the watercraft could be used as a means of transportation. Stewart, 543 U.S. at 496. In pure theory, virtually any dock barge can be converted into a floating object and used for nautical transportation. Based upon Supreme Court precedent, the issue is whether such a conversion is practical. Defendant's purpose with respect to the future use of Barge ACBL 2870, although a relevant factor, is not controlling; the court must determine whether the watercraft is capable of being used for transportation. See Stewart, 543 U.S. at 495 (even though the dredge's primary purpose was not transportation, it was still a vessel since 1 U.S.C. § 3 does not require that the primary purpose be transportation; "the [dredge] was not only 'capable of being used' to transport equipment and workers over water -- it was used to transport those things").”

. . .

“Fastening a barge to the river bottom and using the barge as a work platform does not necessarily preclude the barge from qualifying as a vessel. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 535, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995). Again, the court notes that the key is whether the removal of the spud that affixes the barge to the river bed is practical. There is evidence in the record from which a reasonable jury could conclude that the removal is practical.”

. . .

The Martin Court refused to equate the spud barge with casino barges:

“This case is distinguishable. All the above decisions relied upon by defendant involved casinos that were for gaming and entertainment purposes, whereas Barge ACBL 2870 was used as a dock barge. Based upon the evidence adduced by plaintiff, the spud is not necessarily permanent. The evidence establishes that many barges are capable of navigation even with spuds and spudwells. Barge ACBL 2870 is not attached to the shore with any kind of utility line, implicating that utility lines are not necessary for the barge's key functions. There is no evidence of record that the Coast Guard considered Barge ACBL 2870 permanently moored. By contrast, there is evidence that the barge was listed with the Coast Guard as still being in service.”

The Martin Court also refused to equate the spud barge with a tension leg platform:

“Defendant also cites Jordan v. Shell Oil Co., No. G-06-265, 2007 U.S. Dist. LEXIS 56337, 2007 WL 2220986, at *1 (S.D. Tex. Aug. 2, 2007), in which the plaintiff was injured while working on a tension leg platform owned by the defendant. At trial, an engineer testified that a portion of the platform was towed to the location where the accident occurred; the structure was assembled there. The structure included sixteen tendons, which connected to "sixteen pilings that are 96 inches in diameter and penetrate the soil 396 feet into the subsoil." 2007 U.S. Dist. LEXIS 56337, [WL] at *2.

Martin, 2009 U.S. Dist. Lexis 84426 at *34-52 (footnotes omitted, emphasis supplied).

Is the structure you were injured on a “vessel”?

We can help you find the answer.

Raley & Raley, PC is located in Savannah, Georgia.  Our attorneys assist workers in maritime personal injury cases throughout the coastal area of Georgia and South Carolina.  Contact our office today to speak to an attorney about your potential claim.