Carpenter injured on barge may be seaman for Jone Act purposes

Law Reporter, Sep 1999

Delange v. Dutra Constr. Co., No. 96-17270, 1999 WL 498574 (9th Cir. June 11,1999).

The Ninth Circuit Court of Appeals held that a carpenter not permanently or regularly assigned to a vessel but injured while performing deckhand's duties may be defined as a seaman under the Jones Act.

Here, Delange, a carpenter, was injured while trying to release an anchoring device on a barge. He sued his employer under the Jones Act, 46 U.S.C. 688, among other claims. The trial court granted defendant summary judgment and the Ninth Circuit affirmed, holding that plaintiff was a seaman only if he had a substantial connection to a "vessel in navigation." The court reasoned that the barge was not a vessel in navigation because it was stationary except for movement incidental to its use as a work platform. 153 F.3d 1055 (9th Cir. 1998), 41 ATLA L. Rep. 324 (Nov. 1998).

On rehearing, however, the court found that defendant had not raised the issue of the barge's status and the trial court had not addressed it. Consequently, the court said it did not have discretion to address the issue. Turning to whether plaintiff had a substantial connection to the barge, the court found that plaintiff worked directly in the service of the barge. He had served in various deckhand capacities during his employment with defendant. A large part of his job had been to serve as a lookout, cargo stower, line handler, and occasional pilot when the barge was being moved, all of which, according to the court, are seaman's duties.

Although he had been hired out of a carpenter's union, he only spent 10 percent of his time on carpentry work.

Moreover, plaintiff claimed that he had spent more than 80 percent of his time on board the barge, where most of the work involved crewman and deckhand duties.

The court concluded plaintiff had raised issues of material fact that precluded summary judgment. A jury could reasonably conclude that he had contributed to the barge's mission and that his connection to the barge was substantial in terms of both its duration and its nature.

Accordingly, the court remanded the Jones Act claim for further proceedings.

Plaintiffs Counsel:

*Jay Lawrence Friedheim, Honolulu, Haw. [ Comment: For a discussion of seaman status under the Jones Act, see Foulk v. Donjon Marine Co., U.S. Dist. Ct., D.N.J., No. 95-CV-323, Nov. 24, 1998, 42 ATLA L. Rep. 124 (May 1999), and Wisner v. Professional Divers, 731 So. 2d 200 (La. 1999), 42 ATLA L. Rep 212 (Aug. 1999).

Plaintiffs' counsel in Foulk was *David B. Winkler, Philadelphia, Pa. Plaintiff in Wisner was represented by *Conrad S.P. Williams III, Houma, La., and Joseph W. Walker, Houston, Tex. *John W. deGravelles, Baton Rouge, La., was amicus curiae counsel.]

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