upreme Court of tlje ®mteb State
i
•:'•
No. 13-1268
j ^£7" r:->:, f
upreme Court of tlje ®mteb State* JENNIFER EVANS DIZE, PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM SMITH DIZE, Petitioner, v.
ASSOCIATION OF MARYLAND PILOTS,
Respondent.
On Petition For A Writ Of Certiorari
To The Maryland State Court Qf Appeals
BRIEF AMICUS CURIAE OF THE INLAND
BOATMEN'S UNION, THE PILE DRIVERS, DTVERS, BRIDGE, WHARF & DOCK BUILDERS UNION, AND THE SAILORS'UNION OF THE PACD7IC IN SUPPORT OF PETITIONER
John R. Hillsman
McGUINN, HlLLSKIAN
& PALEFSKY
535 Pacific Avenue
San Francisco, CA 94133 (415) 421-9292
jrhillsman@mhp^f.com
Counsel for the Iriland Boatmen's Union, The Pile Drivers, Divers,
Bridge, Wharf & Dock Builders Union, and the Sailors' Union
of the Pacific COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
QUESTION PRESENTED When applying the Chandris 30 percent rule, may a court consider the time a maritime worker
spends in the service of a vessel in navi.gation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or must a court categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held?
11
TABLE OF CONTENTS Page
QUESTION PRESENTED INTEREST OF AMICI CURIAE.
1
1 4
SUMMARY OFARGUMENT
7
ARGUMENT
I. The Lower Courts "Made a Labyrinth" of II.
Seaman Status and "Got Lost in It" The McDermott/Chandris Line of Cases
Has Guided the Jurisprude nee Almost All
the Way Out of the Labyrinth
III.
The "Limits" Imposed on Seaman Status
by the McDermott/Chandris
es Reside Primarily in th^
Line of Cas"Substantial
Connection Requirement" rv.
As the Opinion Below Confirms, Lower Courts Have Found the Substantial Connection Requirement Difficult to Apply ....
v.
Jennifer Dize's Petition Affords this Court a Perfect Opportunity to CLariffy the Sub-
stantial Connection Requirement CONCLUSION.
11
13 17
Ill
TABLE OF AUTHORITIES
Page Federal Cases
Cabral v. Healy Tibbits Builders, Inc.,
128 F.3d .8
1289 (9th Cir. 1997)
Casser v. McAllister Towing & Transport Co., 2010 U.S. Dist. LEXIS 130462, 2010 WL 5065424 (S.D.N.Y. 2010)
14
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). ...passim Clark v. American Marine & Salvage, LLC, 494
RApp'x 32 (11th Cir. 2012)
12
In re Endeavor Marine, Inc., 234 F.3d 287 (5th 10,12
Cir. 2000)
Grimes v. Raymond Concrete Pile Co., 356
U.S. 14
252(1958)
Harbor Tug & Barge Co. v. Papai, 520 (1997)
U.S. 548
2,7,9,10
Harden v. Gordon, 11 F. Cas. 480 (N o. 6,047) (CCMe. 1823)
Johnson v. John F Beasley Construction Co. 742 F.2d 1054 (7th Cir. 1984) Keller Foundation/Case Foundation v. Tracy,
696 F.3d 835 (9th Cir. 2012), cert . denied, 133 S.Ct. 2825 (2013)
.12
McDerriiott International, Inc. v. Wilahder ,498 U.S. 337 (1991)
Naquin v. Elevating Boats, LLC, 744 (5th Cir. 2014)
passim F.3d 927 12
IV
TABLE OF AUTHORITIES
Continued
Page
Papai v. Harbor Tug &Barge Co
67 F.3d 203
(9th Cir., 1995), rev'd, 520 U.S. 5^8 (1997)
11
Saylor v. Taylor, 77 F. 476 (4th Cir. 1896). Scheuring v. Traylor Brothers, Inc., 476 F.3d 781(9th Cir. 2006)
Searcy v. E.T. Slider, Inc., 679 F 2d
.15
11,13
614 (6th .12
Cir. 1982)
Senko v. La Crosse Dredging Corp., 352 U.S. .14
370(1957)
Shade v. Great Lakes Dredge & Dock Co., 154 .12
F.3d 143 (3d Cir. 1998)
Southwest Marine, Inc. v. Gizoni,
502 U.S. 81
.7,8
(1991)
Stewart v. Dutra Construction Co., 543 U.S 481(2005).
.passim
Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir. 1984).
.11
State Cases
Dize v. Association of Md. Pilots, 435 Md. 150, 77 A.3d 1016 (2014)
.11,14
TABLE OF AUTHORITIES - Continued
Page Federal Statutes
33 U.S.C. §§ 901 et seq., Longshore and Harbor Workers Compensation Act ("'LHWCJA")
46 U.S.C. § 30101,Admiralty Extension Act
7 15
passim
46 U.S.C. § 30104, Jones Act Other Authorities
Allbritton & Robertson, "Seaman Status after Chandris," 8 U.S.F. Mar. L.J. 29 (1996)
11
9 Oeuvres Completes de Diderot (J. Assezat ed. 1875)
Hillsman, "Still Lost In The Labyrinth: The Continuing Puzzle of Seaman Status," 15 U.S.F. Mar. L.J. 49 (2003)
Kulkarni,
"The Seaman
12
Status
Situation:
Historical Perspectives and Modern Move ments in the U.S. Remedial Regime." 31 Tul.
Mar. L.J. 121 (2006)
J
11
Paine, The Sea & Civilization (Alfred JA. Knopf, New York, 2013)
,
Robertson, "The Supreme Court's Approach
.16 to
Determining Seaman Status: Disce rning the Law Amid Loose Language and Catchphrases," 34 J. Mar. L. & Com. 547 (2003)
12
INTEREST OF AMICI CURIAE
This brief is being filed, with the consent of the parties, on behalf of the Pile Drivers , Bridge, Wharf & Dock Builders Union, Local 34, ( Local 34"), the Inland Boatmen's Union ("the IBU), and the Sailors' Union of the Pacific.1 Local 34 was founded in 1883 and is one of the
United States. It is based in the Port of Oakland and is cu:.reentry affiliated with the United Brotherhood of Carpenters and oldest labor unions in the western
Joiners of America. Local 34 has more than 1200
active members, several hundred of
whom work in
the dredging and marine construction trades as "pile butts," carpenters, commercial diver;? and commercial
dive
tenders.
Those
members
are regularly
employed upon the navigable lakes, rivers, bays, and coastal waters of Northern California building, repairing, maintaining, or demolishing piers, wharves, bridges, breakwaters, offshore oil platforms, submarine pipelines, underwater transit tubes, and open 1 Pursuant to Rule 37(6), we certify that this brief was prepared on behalf of the Pile Drivers, Diverb Bridge, Wharf & Dockbuilders Union, Local 34, the Inland Boitmen's Union, and the Sailors Union of the Pacific, by its counsel. It was not authored, in whole or in part, by counsel for any party. No person or entity other than Local 34, the I3U, or its counsel,
made a monetary contribution to the preparkt:ion or submission of the brief. Consent to the filing of this brief was sought by the parties pursuant to Rule 37; at least ten day;s prior to the due date of this brief, we gave Counsel of Record for all parties notice of our intention to file it.
ocean outfalls. In order to perform this work, those men and women often serve for months at a time aboard crane ships, drilling ships, tug boats, dive
boats, derrick barges, dredges, jack-up^
rigs, work-
access to the "trilogy of heightened leg^;al
protections
over rigs, and other special-purpose vessels. Such service has traditionally given Local 34 members
(unavailable to other maritime workers} that seamen
receive because of their exposure to the 'perils of the sea.'" Chandris, Inc. v. Latsis, 515 U S. 347, 354 (1995). Like the dredge in Stewart v Dutra Construc-
Hon Co., 543 U.S. 481 (2005), howevei
the special-
purpose vessels Local 34 members serves often remain moored at their work sites for extended periods of time.
The IBU was founded in 1918, is affiliated with the International Longshoremen and Warehouse
Union, and has over 4,000 active members. T~ Papai, the respondent in Harbor Tug &
Papal, 520 U.S. 548 (1997), was an IBU member. Id. at 551. In order to qualify for membership inthe IBU, one must be documented as a "merchant mariner" by the United States Coast Guard. Members represented
by the IBU's San Francisco Regional Office serve as unlicensed mariners aboard tugs, ferries, oil barges,
bunker barges, crew boats, dredge tenders, oil spill
response vessels, and other harbor craft plying the navigable rivers, bays, and coastal waters of North ern California. This service has long invested
those
members with the "trilogy" of heightened legal pro
tections guaranteed seamen by the Jones Act and
federal maritime law. But like the pilot boats that
Petitioner Jennifer Dize's late husban^l crewed, many of the tugs, crew boats, oil spill response vessels and other craft IBU members serve lie djockside and on
call, for long periods of time, waiting to be dispatched. The Sailors' Union of the Pacific ("SUP") was
formed in 1891 by Andrew Furuseth the "Emancipator of Seamen" - from an amalg^mation of the Coast Seamen's Union (organized in 1885) and the
Steamship Sailors' Union (established
in 1886). It is
headquartered in San Francisco maintains branches in Wilmington, California; Seattle Washington; and Honolulu, Hawaii. The SUP represents unlicensed sailors serving in the deck, engine and steward's departments of U.S.-flag merchant vessels trading all over the world. SUP members are thus paradigmatically and " 'emphatically the wards of the admiralty'" because they "'are by the peculiarity of their lives liable to sudden sickness from chanige of climate, exposure to perils, and exhausting labour.'" Chandris, 515 U.S. at 354-55 (quo ing Harden v. Gordon, 11 F. Cas. 480, 483, 485 (No. 6,047) (CC Me. igned to the 1823)). Many SUP members are assi£ "Ready Reserve Force," a fleet of 46 tankers, cargo ships, and heavy-lift vessels that is owned by the Government, operated by the Maritime Administration, and berthed at strategically loca ed ports chosen by the Department of Defense to facilitate the rapid deployment of military, peace-keep>mg and humanitarian missions all over the world Ships from the
Ready Reserve Force made indispensable contributions
to Operation "Desert Shield" in 1990
Operation
"Desert Storm" in 1992, Operation "Restore Home" in Somalia during 1993, Operation "Uphold pemocracy" in Haiti during 1994, and Operations "Enduring Freedom" and "Iraqi Freedom" from 2002 through 2008. Ready Reserve ships were also niobilized to support relief efforts in the Caribbean and along the U.S. Gulf Coast following Hurricanes Hatrina and Rita in 2005, Hurricane Mitch in 1998, and the Haitian earthquake in 2010. Like the vessel petitioner Dize's husband served, however, those fehips spend
most of their time lying dockside, fully ready to sail, waiting for a call to action.
manned and
The opinion below - which categorically excludes, from the Chandris 30-percent calculation j, whatever time a plaintiff spends in the service of a vessel that is moored, dockside, or ashore - threaten^ the rights SUP, IBU, and Local 34 members have traditionally enjoyed under maritime law. This, in turn gives the amid an abiding and even urgent interest in the outcome of the petition at bar.
SUMMARY OF ARGUMENT
The Jones Act covers any "seaman in ured in the course of employment." Between 1991 and 2005, after the lower courts "made a labyrinth" of that coverage and "got lost in it[,]" this Court accepted Certiorari in five successive Jones Act cases to map "t'lie way out" ("the McDermott/Chandris line of cases"). The resulting
decisions stress that the "inquiry into seaman status
is of necessity fact specific[,]" "eschew the temptation to create detailed tests[,]" hold that seaman status turns "'on the nature of the vessel and the employee's
precise relation to it[,]'" and instruct that "'the total circumstances of an individual's employment must be
weighed to determine whether he ha.d a sufficient relation to the navigation of vessels and the perils attendant thereon'" (emphasis added). Under the ecumenical, "twofold" test that has emerged, 1) "an employee's duties must contribut[e] to the function of the vessel or to the accomplishment of its mission"
and 2) "a seaman must have a connection to a vessel in navigation (or to an identifiable
vessels) that is substantial in terms off both its dura tion and its nature." The SUP, the IBU, and Local
34 respectfully submit that granting
Jennifer
Dize's petition will enable this Court to perfect this ecumenical test by clarifying the second of those two requisites - the so-called "substantial connection requirement." Over the last quarter-century, tie McDermottl Chandris line of cases has guided the lower courts almost all the way out of the labyrinth Sweeping "broadly," this line of cases holds that any "artificial contrivance used, or capable of behjig used, as a means of transportation on water" qualifies as a
"vessel in navigation" and that all who
work "in the
service" of such a contrivance are "eligible for seaman status" (original emphasis). The primary "limits" on Jones Act coverage have therefore been staked out in
the substantial connection requirement Unfortunately, the lower courts have had difficulty applying those limits; the substantial connection r equirement has therefore been termed "Delphic, equivocal " and "not entirely clear." As the Maryland Cou^t of Appeals observed in the opinion below, there consequently
exists "a bewildering array of decisions
in which there
and no outcome precedent Jennifer
is a citation to support any outcome
that fits comfortably with every
Dize's petition gives this Court an
ideal
opportunity
to ameliorate this bewilderment.
The requirement that a seaman's yessel-nexus be substantial in both nature and duration
was fash-
ioned to help courts distinguish "sea-based maritime employees who are entitled to Jones Act protection from those land-based workers [ ] who^e employment does not regularly expose them to the perils of the sea." The unmistakable drift of
the
McDermottl
Chandris line of cases is that the nature and duration of a seaman's vessel-nexus are intertwined and that anyone who is regularly assigned by his or her employer to an operating vessel is exposed to the peculiar perils of a seaman's work
environment even when
that vessel is dockside or securely moored within sight or hailing distance of land. The opinion below
overlooks these important points
much needed opportunity to clarify them.
and
presents a
and underscore
ARGUMENT
I.
The Lower Courts "Made a Labyrinth" of
Seaman Status and "Got Lo4t in It" injured in the course of employment" to sue his or her employer jcause Congress for negligence. 46 U.S.C. § 30104 did not define the term "seaman," the courts have had to develop their own exegesis. Siewart v. Dutra ). In the proConstr. Co., 543 U.S. 481, 487-88 cess, however, the lower courts fanfiously "'made a
The Jones Act permits any
seaman
labyrinth and got lost in it.'" McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 353 (1991) (quoting Johnson v. John F Beasley Construction Co 742 F.2d 1054, 1060 (7th Cir. 1984), paraphrasing 9 Oeuvres Com-
pletes de Diderot, 203 (J. Assezat ed. JL875)). II.
The McDermott/Chandris
ine
Has Guided the Jurispruddn ce the Way Out of the Labyrinth
of Cases
Almost All
This Court accepted certiorari in five successive Jones Act cases between 1991 and 2005,2 "a remarkable 2 McDermott Int'l, 498 U.S. at 356-57 [1991) (holding that one need not aid in the navigation of a ve ssel in order to qualify as a seaman under the Jones Act); Souihxpest Marine, Inc. v. Gizoni, 502 U.S. 81, 92 (1991) (holding that a ship repairman employed at a shipyard is not limited to remedy under the LHWCA as a matter of law if genuine 1SSU3S of fact exist as to whether the worker was also a seaman uider the Jones Act); Chandris, 515 U.S. at 368 (1995) (setting forth a two-prong test for seaman status designed to separate sea-based maritime workers from land-based employees); Harbor Tug, 520 U.S. 548, (Continued on following pa ge)
8
record for any area of the law." Cabrql v. Healy (9th Cir.
Tibbits Builders, Inc., 128 F.3d 1289,
1997). The resulting McDermott/Chandris
line
cases "jettison[s]" the traditional requirement
of
that a
seaman be aboard "primarily to aid in Navigation," Wilander, 498 U.S. at 353, instructs
that it is the
plaintiff's connection to a vessel and
not his or her
particular job that is determinative, Gizoni U.S. at 88, rejects a "snapshot" approach,
I, 502
to seaman
status in favor of a scrolling analysis which
assesses
the "total circumstances" of the plainti: if's
"overall
employment," Chandris, 515 U.S. at 363 "eschew[s] the temptation to create detailed tests[,] id. at 369, holds that "the term 'vessel' 'includes every description of water-craft or other artificial contrivance used,
or capable of being used, as a means of trEfnsportat:ion on water[,]"' Stewart, 543 U.S. at 489 (quoting 1 U.S.C. § 3), and confirms that "a vessel does not cease to be a vessel when she is not voyagin
anchor, berthed, or at dockside." Chandris
but is at
515 U.S.
at 374 (internal quotation marks omi|tted) importantly, the McDermott/Chandris
Most
line of cases
establishes that:
555 (1997) (applying the Chandris test and folding that a showing of common ownership or control is equired when evaluating the plaintiff's employment-related connection to a vessel in navigation); Stewart, 543 U.S. at 495 (held:ing that any watercraft that is practically capable of being used as a means of transportation over water qualifies as a "vessel- in-navigation" under the Jones Act).
"[T]he essential requirements
for sea-
an employman status are twofold. First function of the ee's duties must contribute to the vessel or to the accoimplidhment of its mission. . . .
Second, and most important for our pur-
poses here, a seaman must have a to a vessel in navigation (or to
an
connection identifiable
group of such vessels) that is Substantial in terms of both its duration and
its nature."
Harbor Tug, 520 U.S. at 554 (quoting Chandris, 515 U.S. at 368).
These holdings and clarifications have guided the lower courts almost all the way out of the labyrinth
and have discouraged a precipitous trend towards summary adjudication by repeatedly emphasizing that "'the inquiry into seaman stat
fact specific[.]"' Chandris, 515 U.^. at 371 (quoting Wilander, 498 U.S. at 356). III. The "Limits" Imposed on Seaman Status
by the McDermott/Chandris
Line of Cases
Reside Primarily in the " Substantial Connection Requirement" Since the vessel definition embraced by the McDermott/Chandris line of casesi "sweeps broadly,"
Stewart, 543 U.S. at 495, and since anyone who contributes to the mission or function
of a vessel is
"eligible for seaman status," Chandris, 515 U.S. at
368 (emphasis original), the primary "limits" imposed
10
on Jones Act coverage reside in the reqjoirement that a putative seaman must prove "his connection to the vessel was substantial in nature and duration."
Stewart, 543 U.S. at 495. This is the
£10-
called "sub-
stantial connection requirement." Chan\dris, 515 U.S. at 368.
"The fundamental purpose of
thls substantial
connection requirement is to give ful effect to the remedial scheme created by Congress abd to separate the sea-based maritime employees who
are entitled to
Jones Act protectionfrom those land-baJsed workers [ ] whose employment does not regularly eixpose them to the perils of the sea." Id. at 368. For the substantial connection re quirement
to serve its purpose, the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the ems will give ployee's duties take him to sea substance to the inquiry both as to the duration and nature of the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees.
Harbor Tug & Barge Co. v. Papai, 520 U.S. (1997).3 The elements of the substan ial
or
548, 555
connection
3 When used in this fashion, phrases like "take him to sea" literally"; they are perils of the sea" should not be read "'
simply judicial "short hand" for the signatore dangers of a seaman's work environment - "the risks attending the movement of vessels on navigable water." In re Endeavor Marine,
Inc., 234 F.3d 287, 292 &n. 3 (5th Cir. 2000).
11
requirement are thus inextricably
intertwined and
dictate that "'the total circumstances
of an individu-
al's employment must be weighed
to
determine
whether he had a sufficient relation to the navigation
of vessels and the perils attendant
thereon.'" Id. at
372 (quoting Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 (5th Cir. 1984) (emphasis added)); see also Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 787 (9th Cir. 2006) ("we examine the
vessel.'s movements
in light of the plaintiff's duties im order to assess whether the plaintiff has presented evidence that would allow a jury to find a substantial connection to the vessel both in terms of duration and nature").
IV. As the Opinion Below Confirms, Lower Courts Have Found the Substantial Con-
nection Requirement
Diffitult to Apply
As the Maryland Court of Appeals put it in the opinion below, despite the guidanLee given by the McDermott/Chandris line of cases, subsequent lower court decisions have resulted in a tempest ofvarying, and often conflicting, interpretation.ls." Dize v. Ass'n of Md. Pilots, 435 Md. 150, 153, 77 A.3d 1016, 1025
(2014); App. 2a. Courts and
commentators have found
the substantial connection r equirement "Delphic," Papai v. Harbor Tug & Barge Co. 67 F.3d 203, 208
(9th Cir., 1995) (Poole, J. dissentir}]g), rev'd, 520 U.S. 548 (1997), "equivocal," and
not
entirely clear."
Status after Chandris," 8 U.S.F. Mae. L.J. 29, 65 67 (1996); see also Kulkarni, "The Seaman Status Situation: Historical
Allbritton
&
Robertson,
"Seaman
12
Perspectives and Modern Movements in Remedial Regime," 31 TUL. Mae. L.J
the
121
Robertson, "The Supreme Court's Approac^,
U.S.
(2006);
to Deter-
mining Seaman Status: Discerning the Law Amid Loose Language and Catchphrases," 34 J. Mae. L. & Com. 547 (2003); Hillsman, "Still Lost In The Labyrinth: The Continuing Puzzle of Seaman $tatus," 15 U.S.F. MAE. L.J. 49 (2003). To quote the opinion below once again:
When one attempts to apply the
case
from the various federal circuits anc|
law state
courts under the Jones Act, one encounters a
bewildering array of decisions in which there is a citation to support any outcome knd no
outcome that fits comfortably with
every
precedent.
435 Md. at 166, 77 A.3d at 1025; App
18a. This
bewildering array has produced a conflict (discussed at length on pages 15 through 20 of the petition)
between the Eleventh Circuit on the on<j;
hand, see LLC, 494 Clark v. American Marine & Salvage,
FApp'x 32 (11th Cir. 2012), and the Third, Fifth, Sixth, and Ninth Circuits on the other See, e.g.,
Shade v. Great Lakes Dredge &Dock C^
154 F.3d
Slider, Inc., 1982) (pe r curiam); 744 F.3d 927, 933-35
143, 150-51 (3d Cir. 1998); Searcy v. E.T. 679 F.2d 614, 616-17 (6th Cir.
Naquin v. Elevating Boats, LLC,
(5th Cir. 2014); In re Endeavor Marine,
Inc.
234 F.3d
287, 291 (5th Cir. 2000) (per curiam); Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835, 842-44
13
(9th Cir. 2012) cert, denied, 133 S. Ct.
2825 (2013);
Scheuring, 476 F.3d at 787. Jennifer Dize's Petition Affords this
Court
a Perfect Opportunity to Clarify the Sub-
stantial Connection Requirement The opinion below exemplifies the
confusion that
still bedevils the lower courts' amplication of the McDermott/Chandris line of cases As the petition
explains, the Chandris 30-percent rule addresses the "temporal element" of the substantial connection
requirement and stems from the
thumb" that: "A worker who spendjs
flexible "rule of less than about
30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Chandris, 515 U.S. at £71. To quote the of course serves Chandris Court however: "This figure fi as no more than a guideline established by years of experience, and departure from it will certainly be
justified in appropriate cases." Id. The categorical conclusion that a court applying this flexible guideline may never consider the time a
maritime worker spends in the service of a vessel that is moored, dockside, or ashore, refuses to consider "the total circumstances" of the plaintiff's employment, id. at 370, takes an improper "snapshot" of seaman status, see id. at 363, and .dopts a "detailed" test that functions as an end in and of itself. Id. at 371. Most importantly, it mistakdnly assumes that working aboard vessels that are dockside or moored
14
inshore does not expose workers to "'the perils of the sea.'" Dize, 435 Md. at 172, 77 A.3d at 1028 , App. 25a
(quoting Casser v. McAllister Towing & Transp. Co., 2010 U.S. Dist. LEXIS 130462, 2010 W
; 5065424 at
*3 (S.D.N.Y. 2010)).
Far from confining seaman status to those who
serve on peripatetic vessels, this Courj, has persistently held Jones Act coverage open
to maritime
workers employed aboard dredges, bargfes,
and other
floating contrivances that move relatively infrequent
ly and only for short distances. See Stewart, 543 U.S at 484-85 (2005) (holding that a dredge hand was
eligible for seaman status even though the dredge aboard which he worked remained anchored through
out his assignment, could move only "short distances
by manipulating its anchors and cables" and "typical ly moved in this way once every couple of hours, covering a distance of 30-to-50 feet each time"); Senko v. La Crosse Dredging Corp. 352 U.S. 370 (1957) (affirming seaman status for a "laborer" assigned to "a craft which, though afloat, served as a stationary earth-removing machine" on the Mississippi River near "Madison County, Illinois"); Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 253 (1958) (vacating directed verdict and upholding Jones Act award for
pile driver injured while serving on a "Texas Tower" under construction on Georges Bank, 110 miles east of Cape Cod). Nor has this Court condoned the notion that
vessels lying dockside or inshore do noi; expose their crews to the characteristic perils of a sbaman's work
15
environment. To quote an oft cited passage from the Stewart case:
"It seems a stretch of the iirtai.gination to class the deck hands of a mud (jlredge in the
quiet waters of a Potomac
creek with the bold and skillful mariners who breast the angry waves of the Atlantic; bu such and so far-reaching are the principles which under-
lie the jurisdiction of the courts of admiralty that they adapt themselves to all the new kinds of property and new sets of operatives and new conditions which are brought into existence in the progress of the World."
Stewart, 543 U.S. at 497 (quoting Skylor v. Taylor, 77
F. 476, 479 (4th Cir. 1896) (internal
brackets omit-
ted)).
As the provisions of the Admiralty
Extension Act
the far-reaching admiralty jurisdict:ion recognize
demonstrate, 46 U.S.C. §30101,
principles underlying
that the peculiar perils of a shipboard work environment do not evaporate while the vessel is
dockside. To
take a notorious historical example the Great Lakes excursion steamer S.S. Eastland capsized and sank at her berth on the Chicago River in 1915. Although
the Eastland "was only half submer ged and less than 4 According to those provisions, adniiralty and maritime
jurisdiction [] shall extend to include al cases of damage or injury, to person or property, caused by ; vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C. § 30101
16
twenty feet from shore with three bow lines still fast to the pier," more than 840 passengers and crew died aboard the vessel - almost as many as had perished three years earlier aboard RMS Titanic, 400 :miles out iii the Atlantic. Paine, The Sea & Civilization, 538 (Alfred A. Knopf, New York, 2013).5 The logic of the opinion below, and of the lower
court authorities on which that opinion reliejs, cannot
be reconciled with maritime history or maritime law.
More particularly, that opinion and those authorities are misreading the substantial connection require ment and steering the test for seaman status back Into the labyrinth. The petition at bar presents this Court with a perfect opportunity to avert that result.
5 Paine reports that 841 people died. Id. Other accounts list chi cagotribune. between 844 and 848 fatalities. See http://www.^ com/news/chi-0723-eastland-anniversary-story,0, 2013664.story;
•eastland-disasterhttp^/galleries.apps.chicagotribune.com/chi-0720''"
pictures-pg/.
17
CONCLUSION
WHEREFORE the Pile Drivers' Union Local 34,
the Inland Boatmen's Union, and trie Sailors' Union of the Pacific respectfully urge the Court to grant Jennifer Evans Dize's Petition for
Writ of Certiorari.
Respectfully submitted, John R. Hillsm^n Counsel ofRecord MCGUINN, HlLLSlVIAN & Palefsky 535 Pacific Avenue
San Francisco, CA 94133 (415) 421-9292
•:'•
No. 13-1268
j ^£7" r:->:, f
upreme Court of tlje ®mteb State* JENNIFER EVANS DIZE, PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM SMITH DIZE, Petitioner, v.
ASSOCIATION OF MARYLAND PILOTS,
Respondent.
On Petition For A Writ Of Certiorari
To The Maryland State Court Qf Appeals
BRIEF AMICUS CURIAE OF THE INLAND
BOATMEN'S UNION, THE PILE DRIVERS, DTVERS, BRIDGE, WHARF & DOCK BUILDERS UNION, AND THE SAILORS'UNION OF THE PACD7IC IN SUPPORT OF PETITIONER
John R. Hillsman
McGUINN, HlLLSKIAN
& PALEFSKY
535 Pacific Avenue
San Francisco, CA 94133 (415) 421-9292
jrhillsman@mhp^f.com
Counsel for the Iriland Boatmen's Union, The Pile Drivers, Divers,
Bridge, Wharf & Dock Builders Union, and the Sailors' Union
of the Pacific COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
QUESTION PRESENTED When applying the Chandris 30 percent rule, may a court consider the time a maritime worker
spends in the service of a vessel in navi.gation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or must a court categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held?
11
TABLE OF CONTENTS Page
QUESTION PRESENTED INTEREST OF AMICI CURIAE.
1
1 4
SUMMARY OFARGUMENT
7
ARGUMENT
I. The Lower Courts "Made a Labyrinth" of II.
Seaman Status and "Got Lost in It" The McDermott/Chandris Line of Cases
Has Guided the Jurisprude nee Almost All
the Way Out of the Labyrinth
III.
The "Limits" Imposed on Seaman Status
by the McDermott/Chandris
es Reside Primarily in th^
Line of Cas"Substantial
Connection Requirement" rv.
As the Opinion Below Confirms, Lower Courts Have Found the Substantial Connection Requirement Difficult to Apply ....
v.
Jennifer Dize's Petition Affords this Court a Perfect Opportunity to CLariffy the Sub-
stantial Connection Requirement CONCLUSION.
11
13 17
Ill
TABLE OF AUTHORITIES
Page Federal Cases
Cabral v. Healy Tibbits Builders, Inc.,
128 F.3d .8
1289 (9th Cir. 1997)
Casser v. McAllister Towing & Transport Co., 2010 U.S. Dist. LEXIS 130462, 2010 WL 5065424 (S.D.N.Y. 2010)
14
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). ...passim Clark v. American Marine & Salvage, LLC, 494
RApp'x 32 (11th Cir. 2012)
12
In re Endeavor Marine, Inc., 234 F.3d 287 (5th 10,12
Cir. 2000)
Grimes v. Raymond Concrete Pile Co., 356
U.S. 14
252(1958)
Harbor Tug & Barge Co. v. Papai, 520 (1997)
U.S. 548
2,7,9,10
Harden v. Gordon, 11 F. Cas. 480 (N o. 6,047) (CCMe. 1823)
Johnson v. John F Beasley Construction Co. 742 F.2d 1054 (7th Cir. 1984) Keller Foundation/Case Foundation v. Tracy,
696 F.3d 835 (9th Cir. 2012), cert . denied, 133 S.Ct. 2825 (2013)
.12
McDerriiott International, Inc. v. Wilahder ,498 U.S. 337 (1991)
Naquin v. Elevating Boats, LLC, 744 (5th Cir. 2014)
passim F.3d 927 12
IV
TABLE OF AUTHORITIES
Continued
Page
Papai v. Harbor Tug &Barge Co
67 F.3d 203
(9th Cir., 1995), rev'd, 520 U.S. 5^8 (1997)
11
Saylor v. Taylor, 77 F. 476 (4th Cir. 1896). Scheuring v. Traylor Brothers, Inc., 476 F.3d 781(9th Cir. 2006)
Searcy v. E.T. Slider, Inc., 679 F 2d
.15
11,13
614 (6th .12
Cir. 1982)
Senko v. La Crosse Dredging Corp., 352 U.S. .14
370(1957)
Shade v. Great Lakes Dredge & Dock Co., 154 .12
F.3d 143 (3d Cir. 1998)
Southwest Marine, Inc. v. Gizoni,
502 U.S. 81
.7,8
(1991)
Stewart v. Dutra Construction Co., 543 U.S 481(2005).
.passim
Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir. 1984).
.11
State Cases
Dize v. Association of Md. Pilots, 435 Md. 150, 77 A.3d 1016 (2014)
.11,14
TABLE OF AUTHORITIES - Continued
Page Federal Statutes
33 U.S.C. §§ 901 et seq., Longshore and Harbor Workers Compensation Act ("'LHWCJA")
46 U.S.C. § 30101,Admiralty Extension Act
7 15
passim
46 U.S.C. § 30104, Jones Act Other Authorities
Allbritton & Robertson, "Seaman Status after Chandris," 8 U.S.F. Mar. L.J. 29 (1996)
11
9 Oeuvres Completes de Diderot (J. Assezat ed. 1875)
Hillsman, "Still Lost In The Labyrinth: The Continuing Puzzle of Seaman Status," 15 U.S.F. Mar. L.J. 49 (2003)
Kulkarni,
"The Seaman
12
Status
Situation:
Historical Perspectives and Modern Move ments in the U.S. Remedial Regime." 31 Tul.
Mar. L.J. 121 (2006)
J
11
Paine, The Sea & Civilization (Alfred JA. Knopf, New York, 2013)
,
Robertson, "The Supreme Court's Approach
.16 to
Determining Seaman Status: Disce rning the Law Amid Loose Language and Catchphrases," 34 J. Mar. L. & Com. 547 (2003)
12
INTEREST OF AMICI CURIAE
This brief is being filed, with the consent of the parties, on behalf of the Pile Drivers , Bridge, Wharf & Dock Builders Union, Local 34, ( Local 34"), the Inland Boatmen's Union ("the IBU), and the Sailors' Union of the Pacific.1 Local 34 was founded in 1883 and is one of the
United States. It is based in the Port of Oakland and is cu:.reentry affiliated with the United Brotherhood of Carpenters and oldest labor unions in the western
Joiners of America. Local 34 has more than 1200
active members, several hundred of
whom work in
the dredging and marine construction trades as "pile butts," carpenters, commercial diver;? and commercial
dive
tenders.
Those
members
are regularly
employed upon the navigable lakes, rivers, bays, and coastal waters of Northern California building, repairing, maintaining, or demolishing piers, wharves, bridges, breakwaters, offshore oil platforms, submarine pipelines, underwater transit tubes, and open 1 Pursuant to Rule 37(6), we certify that this brief was prepared on behalf of the Pile Drivers, Diverb Bridge, Wharf & Dockbuilders Union, Local 34, the Inland Boitmen's Union, and the Sailors Union of the Pacific, by its counsel. It was not authored, in whole or in part, by counsel for any party. No person or entity other than Local 34, the I3U, or its counsel,
made a monetary contribution to the preparkt:ion or submission of the brief. Consent to the filing of this brief was sought by the parties pursuant to Rule 37; at least ten day;s prior to the due date of this brief, we gave Counsel of Record for all parties notice of our intention to file it.
ocean outfalls. In order to perform this work, those men and women often serve for months at a time aboard crane ships, drilling ships, tug boats, dive
boats, derrick barges, dredges, jack-up^
rigs, work-
access to the "trilogy of heightened leg^;al
protections
over rigs, and other special-purpose vessels. Such service has traditionally given Local 34 members
(unavailable to other maritime workers} that seamen
receive because of their exposure to the 'perils of the sea.'" Chandris, Inc. v. Latsis, 515 U S. 347, 354 (1995). Like the dredge in Stewart v Dutra Construc-
Hon Co., 543 U.S. 481 (2005), howevei
the special-
purpose vessels Local 34 members serves often remain moored at their work sites for extended periods of time.
The IBU was founded in 1918, is affiliated with the International Longshoremen and Warehouse
Union, and has over 4,000 active members. T~ Papai, the respondent in Harbor Tug &
Papal, 520 U.S. 548 (1997), was an IBU member. Id. at 551. In order to qualify for membership inthe IBU, one must be documented as a "merchant mariner" by the United States Coast Guard. Members represented
by the IBU's San Francisco Regional Office serve as unlicensed mariners aboard tugs, ferries, oil barges,
bunker barges, crew boats, dredge tenders, oil spill
response vessels, and other harbor craft plying the navigable rivers, bays, and coastal waters of North ern California. This service has long invested
those
members with the "trilogy" of heightened legal pro
tections guaranteed seamen by the Jones Act and
federal maritime law. But like the pilot boats that
Petitioner Jennifer Dize's late husban^l crewed, many of the tugs, crew boats, oil spill response vessels and other craft IBU members serve lie djockside and on
call, for long periods of time, waiting to be dispatched. The Sailors' Union of the Pacific ("SUP") was
formed in 1891 by Andrew Furuseth the "Emancipator of Seamen" - from an amalg^mation of the Coast Seamen's Union (organized in 1885) and the
Steamship Sailors' Union (established
in 1886). It is
headquartered in San Francisco maintains branches in Wilmington, California; Seattle Washington; and Honolulu, Hawaii. The SUP represents unlicensed sailors serving in the deck, engine and steward's departments of U.S.-flag merchant vessels trading all over the world. SUP members are thus paradigmatically and " 'emphatically the wards of the admiralty'" because they "'are by the peculiarity of their lives liable to sudden sickness from chanige of climate, exposure to perils, and exhausting labour.'" Chandris, 515 U.S. at 354-55 (quo ing Harden v. Gordon, 11 F. Cas. 480, 483, 485 (No. 6,047) (CC Me. igned to the 1823)). Many SUP members are assi£ "Ready Reserve Force," a fleet of 46 tankers, cargo ships, and heavy-lift vessels that is owned by the Government, operated by the Maritime Administration, and berthed at strategically loca ed ports chosen by the Department of Defense to facilitate the rapid deployment of military, peace-keep>mg and humanitarian missions all over the world Ships from the
Ready Reserve Force made indispensable contributions
to Operation "Desert Shield" in 1990
Operation
"Desert Storm" in 1992, Operation "Restore Home" in Somalia during 1993, Operation "Uphold pemocracy" in Haiti during 1994, and Operations "Enduring Freedom" and "Iraqi Freedom" from 2002 through 2008. Ready Reserve ships were also niobilized to support relief efforts in the Caribbean and along the U.S. Gulf Coast following Hurricanes Hatrina and Rita in 2005, Hurricane Mitch in 1998, and the Haitian earthquake in 2010. Like the vessel petitioner Dize's husband served, however, those fehips spend
most of their time lying dockside, fully ready to sail, waiting for a call to action.
manned and
The opinion below - which categorically excludes, from the Chandris 30-percent calculation j, whatever time a plaintiff spends in the service of a vessel that is moored, dockside, or ashore - threaten^ the rights SUP, IBU, and Local 34 members have traditionally enjoyed under maritime law. This, in turn gives the amid an abiding and even urgent interest in the outcome of the petition at bar.
SUMMARY OF ARGUMENT
The Jones Act covers any "seaman in ured in the course of employment." Between 1991 and 2005, after the lower courts "made a labyrinth" of that coverage and "got lost in it[,]" this Court accepted Certiorari in five successive Jones Act cases to map "t'lie way out" ("the McDermott/Chandris line of cases"). The resulting
decisions stress that the "inquiry into seaman status
is of necessity fact specific[,]" "eschew the temptation to create detailed tests[,]" hold that seaman status turns "'on the nature of the vessel and the employee's
precise relation to it[,]'" and instruct that "'the total circumstances of an individual's employment must be
weighed to determine whether he ha.d a sufficient relation to the navigation of vessels and the perils attendant thereon'" (emphasis added). Under the ecumenical, "twofold" test that has emerged, 1) "an employee's duties must contribut[e] to the function of the vessel or to the accomplishment of its mission"
and 2) "a seaman must have a connection to a vessel in navigation (or to an identifiable
vessels) that is substantial in terms off both its dura tion and its nature." The SUP, the IBU, and Local
34 respectfully submit that granting
Jennifer
Dize's petition will enable this Court to perfect this ecumenical test by clarifying the second of those two requisites - the so-called "substantial connection requirement." Over the last quarter-century, tie McDermottl Chandris line of cases has guided the lower courts almost all the way out of the labyrinth Sweeping "broadly," this line of cases holds that any "artificial contrivance used, or capable of behjig used, as a means of transportation on water" qualifies as a
"vessel in navigation" and that all who
work "in the
service" of such a contrivance are "eligible for seaman status" (original emphasis). The primary "limits" on Jones Act coverage have therefore been staked out in
the substantial connection requirement Unfortunately, the lower courts have had difficulty applying those limits; the substantial connection r equirement has therefore been termed "Delphic, equivocal " and "not entirely clear." As the Maryland Cou^t of Appeals observed in the opinion below, there consequently
exists "a bewildering array of decisions
in which there
and no outcome precedent Jennifer
is a citation to support any outcome
that fits comfortably with every
Dize's petition gives this Court an
ideal
opportunity
to ameliorate this bewilderment.
The requirement that a seaman's yessel-nexus be substantial in both nature and duration
was fash-
ioned to help courts distinguish "sea-based maritime employees who are entitled to Jones Act protection from those land-based workers [ ] who^e employment does not regularly expose them to the perils of the sea." The unmistakable drift of
the
McDermottl
Chandris line of cases is that the nature and duration of a seaman's vessel-nexus are intertwined and that anyone who is regularly assigned by his or her employer to an operating vessel is exposed to the peculiar perils of a seaman's work
environment even when
that vessel is dockside or securely moored within sight or hailing distance of land. The opinion below
overlooks these important points
much needed opportunity to clarify them.
and
presents a
and underscore
ARGUMENT
I.
The Lower Courts "Made a Labyrinth" of
Seaman Status and "Got Lo4t in It" injured in the course of employment" to sue his or her employer jcause Congress for negligence. 46 U.S.C. § 30104 did not define the term "seaman," the courts have had to develop their own exegesis. Siewart v. Dutra ). In the proConstr. Co., 543 U.S. 481, 487-88 cess, however, the lower courts fanfiously "'made a
The Jones Act permits any
seaman
labyrinth and got lost in it.'" McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 353 (1991) (quoting Johnson v. John F Beasley Construction Co 742 F.2d 1054, 1060 (7th Cir. 1984), paraphrasing 9 Oeuvres Com-
pletes de Diderot, 203 (J. Assezat ed. JL875)). II.
The McDermott/Chandris
ine
Has Guided the Jurispruddn ce the Way Out of the Labyrinth
of Cases
Almost All
This Court accepted certiorari in five successive Jones Act cases between 1991 and 2005,2 "a remarkable 2 McDermott Int'l, 498 U.S. at 356-57 [1991) (holding that one need not aid in the navigation of a ve ssel in order to qualify as a seaman under the Jones Act); Souihxpest Marine, Inc. v. Gizoni, 502 U.S. 81, 92 (1991) (holding that a ship repairman employed at a shipyard is not limited to remedy under the LHWCA as a matter of law if genuine 1SSU3S of fact exist as to whether the worker was also a seaman uider the Jones Act); Chandris, 515 U.S. at 368 (1995) (setting forth a two-prong test for seaman status designed to separate sea-based maritime workers from land-based employees); Harbor Tug, 520 U.S. 548, (Continued on following pa ge)
8
record for any area of the law." Cabrql v. Healy (9th Cir.
Tibbits Builders, Inc., 128 F.3d 1289,
1997). The resulting McDermott/Chandris
line
cases "jettison[s]" the traditional requirement
of
that a
seaman be aboard "primarily to aid in Navigation," Wilander, 498 U.S. at 353, instructs
that it is the
plaintiff's connection to a vessel and
not his or her
particular job that is determinative, Gizoni U.S. at 88, rejects a "snapshot" approach,
I, 502
to seaman
status in favor of a scrolling analysis which
assesses
the "total circumstances" of the plainti: if's
"overall
employment," Chandris, 515 U.S. at 363 "eschew[s] the temptation to create detailed tests[,] id. at 369, holds that "the term 'vessel' 'includes every description of water-craft or other artificial contrivance used,
or capable of being used, as a means of trEfnsportat:ion on water[,]"' Stewart, 543 U.S. at 489 (quoting 1 U.S.C. § 3), and confirms that "a vessel does not cease to be a vessel when she is not voyagin
anchor, berthed, or at dockside." Chandris
but is at
515 U.S.
at 374 (internal quotation marks omi|tted) importantly, the McDermott/Chandris
Most
line of cases
establishes that:
555 (1997) (applying the Chandris test and folding that a showing of common ownership or control is equired when evaluating the plaintiff's employment-related connection to a vessel in navigation); Stewart, 543 U.S. at 495 (held:ing that any watercraft that is practically capable of being used as a means of transportation over water qualifies as a "vessel- in-navigation" under the Jones Act).
"[T]he essential requirements
for sea-
an employman status are twofold. First function of the ee's duties must contribute to the vessel or to the accoimplidhment of its mission. . . .
Second, and most important for our pur-
poses here, a seaman must have a to a vessel in navigation (or to
an
connection identifiable
group of such vessels) that is Substantial in terms of both its duration and
its nature."
Harbor Tug, 520 U.S. at 554 (quoting Chandris, 515 U.S. at 368).
These holdings and clarifications have guided the lower courts almost all the way out of the labyrinth
and have discouraged a precipitous trend towards summary adjudication by repeatedly emphasizing that "'the inquiry into seaman stat
fact specific[.]"' Chandris, 515 U.^. at 371 (quoting Wilander, 498 U.S. at 356). III. The "Limits" Imposed on Seaman Status
by the McDermott/Chandris
Line of Cases
Reside Primarily in the " Substantial Connection Requirement" Since the vessel definition embraced by the McDermott/Chandris line of casesi "sweeps broadly,"
Stewart, 543 U.S. at 495, and since anyone who contributes to the mission or function
of a vessel is
"eligible for seaman status," Chandris, 515 U.S. at
368 (emphasis original), the primary "limits" imposed
10
on Jones Act coverage reside in the reqjoirement that a putative seaman must prove "his connection to the vessel was substantial in nature and duration."
Stewart, 543 U.S. at 495. This is the
£10-
called "sub-
stantial connection requirement." Chan\dris, 515 U.S. at 368.
"The fundamental purpose of
thls substantial
connection requirement is to give ful effect to the remedial scheme created by Congress abd to separate the sea-based maritime employees who
are entitled to
Jones Act protectionfrom those land-baJsed workers [ ] whose employment does not regularly eixpose them to the perils of the sea." Id. at 368. For the substantial connection re quirement
to serve its purpose, the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the ems will give ployee's duties take him to sea substance to the inquiry both as to the duration and nature of the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees.
Harbor Tug & Barge Co. v. Papai, 520 U.S. (1997).3 The elements of the substan ial
or
548, 555
connection
3 When used in this fashion, phrases like "take him to sea" literally"; they are perils of the sea" should not be read "'
simply judicial "short hand" for the signatore dangers of a seaman's work environment - "the risks attending the movement of vessels on navigable water." In re Endeavor Marine,
Inc., 234 F.3d 287, 292 &n. 3 (5th Cir. 2000).
11
requirement are thus inextricably
intertwined and
dictate that "'the total circumstances
of an individu-
al's employment must be weighed
to
determine
whether he had a sufficient relation to the navigation
of vessels and the perils attendant
thereon.'" Id. at
372 (quoting Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 (5th Cir. 1984) (emphasis added)); see also Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 787 (9th Cir. 2006) ("we examine the
vessel.'s movements
in light of the plaintiff's duties im order to assess whether the plaintiff has presented evidence that would allow a jury to find a substantial connection to the vessel both in terms of duration and nature").
IV. As the Opinion Below Confirms, Lower Courts Have Found the Substantial Con-
nection Requirement
Diffitult to Apply
As the Maryland Court of Appeals put it in the opinion below, despite the guidanLee given by the McDermott/Chandris line of cases, subsequent lower court decisions have resulted in a tempest ofvarying, and often conflicting, interpretation.ls." Dize v. Ass'n of Md. Pilots, 435 Md. 150, 153, 77 A.3d 1016, 1025
(2014); App. 2a. Courts and
commentators have found
the substantial connection r equirement "Delphic," Papai v. Harbor Tug & Barge Co. 67 F.3d 203, 208
(9th Cir., 1995) (Poole, J. dissentir}]g), rev'd, 520 U.S. 548 (1997), "equivocal," and
not
entirely clear."
Status after Chandris," 8 U.S.F. Mae. L.J. 29, 65 67 (1996); see also Kulkarni, "The Seaman Status Situation: Historical
Allbritton
&
Robertson,
"Seaman
12
Perspectives and Modern Movements in Remedial Regime," 31 TUL. Mae. L.J
the
121
Robertson, "The Supreme Court's Approac^,
U.S.
(2006);
to Deter-
mining Seaman Status: Discerning the Law Amid Loose Language and Catchphrases," 34 J. Mae. L. & Com. 547 (2003); Hillsman, "Still Lost In The Labyrinth: The Continuing Puzzle of Seaman $tatus," 15 U.S.F. MAE. L.J. 49 (2003). To quote the opinion below once again:
When one attempts to apply the
case
from the various federal circuits anc|
law state
courts under the Jones Act, one encounters a
bewildering array of decisions in which there is a citation to support any outcome knd no
outcome that fits comfortably with
every
precedent.
435 Md. at 166, 77 A.3d at 1025; App
18a. This
bewildering array has produced a conflict (discussed at length on pages 15 through 20 of the petition)
between the Eleventh Circuit on the on<j;
hand, see LLC, 494 Clark v. American Marine & Salvage,
FApp'x 32 (11th Cir. 2012), and the Third, Fifth, Sixth, and Ninth Circuits on the other See, e.g.,
Shade v. Great Lakes Dredge &Dock C^
154 F.3d
Slider, Inc., 1982) (pe r curiam); 744 F.3d 927, 933-35
143, 150-51 (3d Cir. 1998); Searcy v. E.T. 679 F.2d 614, 616-17 (6th Cir.
Naquin v. Elevating Boats, LLC,
(5th Cir. 2014); In re Endeavor Marine,
Inc.
234 F.3d
287, 291 (5th Cir. 2000) (per curiam); Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835, 842-44
13
(9th Cir. 2012) cert, denied, 133 S. Ct.
2825 (2013);
Scheuring, 476 F.3d at 787. Jennifer Dize's Petition Affords this
Court
a Perfect Opportunity to Clarify the Sub-
stantial Connection Requirement The opinion below exemplifies the
confusion that
still bedevils the lower courts' amplication of the McDermott/Chandris line of cases As the petition
explains, the Chandris 30-percent rule addresses the "temporal element" of the substantial connection
requirement and stems from the
thumb" that: "A worker who spendjs
flexible "rule of less than about
30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Chandris, 515 U.S. at £71. To quote the of course serves Chandris Court however: "This figure fi as no more than a guideline established by years of experience, and departure from it will certainly be
justified in appropriate cases." Id. The categorical conclusion that a court applying this flexible guideline may never consider the time a
maritime worker spends in the service of a vessel that is moored, dockside, or ashore, refuses to consider "the total circumstances" of the plaintiff's employment, id. at 370, takes an improper "snapshot" of seaman status, see id. at 363, and .dopts a "detailed" test that functions as an end in and of itself. Id. at 371. Most importantly, it mistakdnly assumes that working aboard vessels that are dockside or moored
14
inshore does not expose workers to "'the perils of the sea.'" Dize, 435 Md. at 172, 77 A.3d at 1028 , App. 25a
(quoting Casser v. McAllister Towing & Transp. Co., 2010 U.S. Dist. LEXIS 130462, 2010 W
; 5065424 at
*3 (S.D.N.Y. 2010)).
Far from confining seaman status to those who
serve on peripatetic vessels, this Courj, has persistently held Jones Act coverage open
to maritime
workers employed aboard dredges, bargfes,
and other
floating contrivances that move relatively infrequent
ly and only for short distances. See Stewart, 543 U.S at 484-85 (2005) (holding that a dredge hand was
eligible for seaman status even though the dredge aboard which he worked remained anchored through
out his assignment, could move only "short distances
by manipulating its anchors and cables" and "typical ly moved in this way once every couple of hours, covering a distance of 30-to-50 feet each time"); Senko v. La Crosse Dredging Corp. 352 U.S. 370 (1957) (affirming seaman status for a "laborer" assigned to "a craft which, though afloat, served as a stationary earth-removing machine" on the Mississippi River near "Madison County, Illinois"); Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 253 (1958) (vacating directed verdict and upholding Jones Act award for
pile driver injured while serving on a "Texas Tower" under construction on Georges Bank, 110 miles east of Cape Cod). Nor has this Court condoned the notion that
vessels lying dockside or inshore do noi; expose their crews to the characteristic perils of a sbaman's work
15
environment. To quote an oft cited passage from the Stewart case:
"It seems a stretch of the iirtai.gination to class the deck hands of a mud (jlredge in the
quiet waters of a Potomac
creek with the bold and skillful mariners who breast the angry waves of the Atlantic; bu such and so far-reaching are the principles which under-
lie the jurisdiction of the courts of admiralty that they adapt themselves to all the new kinds of property and new sets of operatives and new conditions which are brought into existence in the progress of the World."
Stewart, 543 U.S. at 497 (quoting Skylor v. Taylor, 77
F. 476, 479 (4th Cir. 1896) (internal
brackets omit-
ted)).
As the provisions of the Admiralty
Extension Act
the far-reaching admiralty jurisdict:ion recognize
demonstrate, 46 U.S.C. §30101,
principles underlying
that the peculiar perils of a shipboard work environment do not evaporate while the vessel is
dockside. To
take a notorious historical example the Great Lakes excursion steamer S.S. Eastland capsized and sank at her berth on the Chicago River in 1915. Although
the Eastland "was only half submer ged and less than 4 According to those provisions, adniiralty and maritime
jurisdiction [] shall extend to include al cases of damage or injury, to person or property, caused by ; vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C. § 30101
16
twenty feet from shore with three bow lines still fast to the pier," more than 840 passengers and crew died aboard the vessel - almost as many as had perished three years earlier aboard RMS Titanic, 400 :miles out iii the Atlantic. Paine, The Sea & Civilization, 538 (Alfred A. Knopf, New York, 2013).5 The logic of the opinion below, and of the lower
court authorities on which that opinion reliejs, cannot
be reconciled with maritime history or maritime law.
More particularly, that opinion and those authorities are misreading the substantial connection require ment and steering the test for seaman status back Into the labyrinth. The petition at bar presents this Court with a perfect opportunity to avert that result.
5 Paine reports that 841 people died. Id. Other accounts list chi cagotribune. between 844 and 848 fatalities. See http://www.^ com/news/chi-0723-eastland-anniversary-story,0, 2013664.story;
•eastland-disasterhttp^/galleries.apps.chicagotribune.com/chi-0720''"
pictures-pg/.
17
CONCLUSION
WHEREFORE the Pile Drivers' Union Local 34,
the Inland Boatmen's Union, and trie Sailors' Union of the Pacific respectfully urge the Court to grant Jennifer Evans Dize's Petition for
Writ of Certiorari.
Respectfully submitted, John R. Hillsm^n Counsel ofRecord MCGUINN, HlLLSlVIAN & Palefsky 535 Pacific Avenue
San Francisco, CA 94133 (415) 421-9292
