United States Department of Labor
Office of Administrative Law Judges Law Library



State Act, Longshore Act or Jones Act
Which to Choose ?
A Coast to Coast Discussion

[Pages 1 to 38]
Continute to Pages 39 to 71 | Continue to Pages 72 to end

Hon. David W. Di Nardi 1

District Chief Judge

Boston District Office

U.S. Department Of Labor

Table Of Contents



A. An Overview of the Acts [Page 8]

B. Navigating the Murky Waters: Who is a Jones Act Plaintiff? [Page 12]

1. Seaman Status [Page 12]

a. ". . . contribute to the function of the vessel or to the accomplishment of its mission." [Page 14]

b. Substantial "Connection to a Vessel in Navigation" [Page 17]

2. Vessel (or Group of Vessels) in Navigation [Page 22]

a. Vessel in Navigation [Page 22]

i. Working Barges [Page 25]

ii. Floating Casinos [Page 28]

b. Fleet Doctrine [Page 33]

C. Unanswered Questions [Page 37]

1. Jurisdictional Estoppel [Page 37]

a. Introductory Issue: Statute of Limitations [Page 39]

b. Voluntary Payment of LHWCA Benefits by Employer [Page 41]

c. Preclusive Effect of a Formal Administrative Determination [Page 42]

i. Formal Adjudications [Page 42]

ii . Fifth Circuit -- Applying Jurisdictional Estoppel [Page 44]

iii. Ninth Circuit No Preclusion [Page 47]

iv. Conclusion [Page 50]

2. The Future Classification of Floating Casinos [Page 52]

3. Unpaid volunteers treated like seamen [Page 54]



A. The History and Development of Concurrent Jurisdiction [Page 62]

1. Injuries Upon Navigable Waters The Jensen Line [Page 62]

a. Maritime and Local [Page 64]

b. Emergence of Concurrent Jurisdiction [Page 66]

2. Injuries Landward of the Jensen Line [Page 67]

3. Statutory Credit [Page 72]

B. State Legislative Changes [Page 72]

C. Collateral Estoppel [Page 73]



   At the beginning of this decade the United States Supreme Court expressed its intention to apply maritime tort law uniformly throughout the country. 2 This goal echoed a sentiment voiced by the Court over the last century. 3 But, as the saying goes, "The best laid plans of mice and men oft go astray." 4 While striving for uniformity, the legislative history and jurisprudence in this area of law have been full of changes, questions and uncertainties. Rather than constant, steadfast rules, maritime law has ebbed and flowed like the tide, granting and pulling back coverage under the purview of exclusive and overlapping statutory schemes.

   The focus of this speech concerns the interrelationship and coverage of the Jones Act, the Longshore and Harbor Workers' Compensation Act (LHWCA) and various state workers' compensation laws; three closely-related areas of maritime law with much overlap, and uncertainty. In preparing this paper concerning statutory schemes, I am always mindful of the sage advice of Justice Antonin Scalia, that "if the language of a statute is clear, that language must be given effect--at least in the absence of a patent absurdity." 5 Between this rule of thumb and the rather simple language of the statutes, one would hope or assume that there would be little litigation over these

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legal matters. Yet, as I shall address, the plethora of cases on many significant issues exposes a great deal of uncertainty within these areas. The close nature of the Jones Act, LHWCA and state laws has led to ambiguous situations and a jurisprudence that involve issues often falling between a "shadowy area" and a "twilight zone." 6 In fact, Judge Harlington Wood of the Seventh Circuit, commenting upon the confusing case law distinguishing Jones Act claims from Longshore claims, once noted, "Diderot may very well have had [Supreme Court maritime case law] in mind when he wrote, We have made a labyrinth and got lost in it. We must find our way out.'" 7

   Part of the confusion stems from the many statutes covering maritime law, together with numerous potential claimants who are injured while performing a variety of duties, in an array of circumstances. One court has commented, "[t]he myriad circumstances in which men go upon the water confront the courts, not with discrete classes of maritime employees, but rather with a spectrum ranging from the blue-water seaman to the land-based longshoreman." 8 Such diverse circumstances and statutory choices appear daunting to the non-knowledgeable party to such actions.

   To some, employees injured on, over or adjacent to navigable waters appear to have a choice of a number of maritime remedies. As my co-panelist John R. Hillsman once commented, "[L]ike

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the kingdom of heaven, there are many doors to maritime recovery, and, very often, only a single guard before them." 9 After peeling away the layers of court decisions and navigating a variety of judicial tests, however, the recovery channels are more restricted than they may appear. An injured worker may either be a Jones Act seaman or a longshoreman entitled to state and federal remedies, or a longshoreman in the exclusive jurisdiction of the LHWCA. The result depends on the facts of each case and requires assiduous counsel to steer his or her client through the statutory and legal labyrinth. As B. James Finnegan wrote, in response to Attorney Hillsman's article, "Yes, . . . there are many doors to Heaven. However, I have yet to see a single individual who could walk through two opposing doors at the same time." 10

   The purpose of my speech today is to help litigants recognize the keys to the various doors of recovery and best determine which they are entitled to enter and which are locked. To accomplish this, I shall discuss the current law under the various compensation statutes. First, I will examine the interrelationship of the Jones Act and LHWCA, concentrating initially on the evolving definition of "seaman" under the Jones Act. I will then address some unsettled questions currently plaguing the federal and administrative courts, especially the question of the preclusive effect of an administrative law judge's decision on a subsequent Jones Act proceeding. Next, I will discuss the relationship between the Jones Act and state workers' compensation laws. Finally, I shall analyze

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the relationship between the LHWCA and state workers' compensation schemes, focusing on the effect of collateral estoppel in such proceedings. By the conclusion of this speech, it is my intent to have the muddy waters of maritime law appear more clear, and I will have provided steering principles for litigants to better address and clarify the issues faced when workers are injured on or near navigable waters, or, more precisely, inside the labyrinth.


   The first issue I would like to discuss this afternoon is the interrelationship between the Jones Act and the LHWCA. My examination of this subject will be divided into three subsection. First, I shall briefly discuss each act and their distinguishing characteristics. Second, I shall examine the crucial distinctions of these two mutually exclusive Acts by providing some guidance for parties concerning the fundamental issue of "seaman" status. Finally, I will address some unanswered questions plaguing today's litigants faced with borderline Jones Act/LHWCA claims.

   While I approach this subject with the best intentions, I must note that the distinction between the Jones Act and LHWCA has riddled the Supreme Court four times within the last seven years--a remarkable record for this area of the law. 11 Further, Justice O'Connor, speaking for the

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Court, has referred to Jones Act/LHWCA jurisprudence as having a "tortured history." 12 Therefore, with those words of warning, let us begin our journey.

    A. An Overview of the Acts

   I would like to begin by briefly discussing the history and characteristics of each Act. I shall avoid a detailed comparison of these statutes as I am assuming all present have some general, working knowledge of both Acts.

   Traditionally, courts denied seamen a remedy for harm caused by the negligent acts of fellow crew members under the "fellow servant" rule. 13 In 1920, Congress acted to remedy this situation by passing the Jones Act, 14 which provides a remedy to seamen injured in the course of their employment aboard a vessel due to the negligence of their employer. 15 The Act provides, in pertinent 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 case of the death of any seaman as a result of any such

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personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury. . . . Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. 16

An injured seaman has the option of suing directly under the federal admiralty jurisdiction, 17 or suing at law in either a state or federal court under the Jones Act. 18 If a claimant decides to pursue a Jones Act claim in a state forum, the defendant may not remove the case to a federal court. 19

   Today the Jones Act is perceived as a tempting choice for an injured worker. This is mainly due to the fact that Jones Act plaintiffs can recover one-hundred percent of their expenses, plus damages. 20 In total, a Jones Act plaintiff may recover for past wage loss, future wage loss, medical expenses, and general damages for pain and suffering. 21 Additionally, seaman status (which is required of a Jones Act plaintiff and will be thoroughly discussed in a few moments) triggers the

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availability of the general maritime law remedies of unseaworthiness and maintenance and cure. 22 Moreover, Jones Act seamen traditionally enjoy a "featherweight burden" of proving only slight negligence. 23 In Gautreaux v. Scurlock Marine, Inc. , 24 however, the Fifth Circuit reversed prior case law holding that seamen in Jones Act negligence cases are bound to a standard of ordinary care in the exercise of care for their own safety, not to a lesser duty of slight care, and that Jones Act employers are not held to a higher standard of care than that required under ordinary negligence. 25 This raises the question of whether, in light of this decision, fewer claimants will opt out of LHWCA coverage to pursue a Jones Act claim in the Fifth Circuit.

   Fundamental for Jones Act coverage is whether the injured worker is a "seaman," but unfortunately, the Jones Act does not define the term. 26 Needless to say, this word has been the subject of a great deal of litigation. Initially, the Supreme Court took an expansive view of the term "seaman" when applying the Jones Act. For example, in 1926, the United States Supreme Court

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issued its decision in International Stevedoring Co. v. Haverty , 27 which held that longshoremen were covered under the Jones Act because they were seamen. 28 Congress' reaction was swift and, within one year, the LHWCA was passed, 29 demonstrating Congress' unwillingness to provide uniform coverage for longshoremen and seamen. 30

   Essentially, the LHWCA was enacted to provide a form of workers' compensation, in lieu of tort damages, for land-based maritime workers. Under the LHWCA, a responsible employer will be liable for wage compensation and medical benefits to an injured claimant, regardless of fault, so long as the injury arises out of claimant's employment. In return for this no fault liability, the LHWCA sets a schedule for benefits, and the employer is granted immunity from tort liability for the injury. 31

   The LHWCA expressly excluded from coverage "a master or member of a crew of any vessel." 32 Just as the Jones Act did not define "seaman," the LHWCA fails to provide a definition for "member of a crew." The Supreme Court, however, has clarified that a "seaman" is a "master or member of a crew," therefore these two Acts are mutually

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exclusive and, in a sense, mutually dependent upon each other for interpretation. 33 Due to the fact that the Jones Act and LHWCA are mutually exclusive, a grey area has developed in determining whether a claimant is, or is not, a seaman. The Supreme Court has even noted that "[t]he distinction between the two mutually exclusive categories can be difficult to implement, and many cases turn on their specific facts." 34

    B. Navigating the Murky Waters: Who is a Jones Act Plaintiff?

   As I have just noted, the wording of both statutes make the two Acts somewhat interdependent upon each other for determining who is and is not qualified for an award under each statute. The fundamental inquiry into whether the Jones Act applies involves two requirements: (1) the Claimant must be a seaman, and (2) the vessel must be in navigation. I pause to note, that the Supreme Court has interpreted the Jones Act to provide protection based on status. 35 Therefore, once seaman status is established it will not affect the coverage if the seaman is injured on or off a boat. 36

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I will now address each of these requirements separately.

       1. Seaman Status

   As previously noted, the Jones Act does not define "seaman." Further, while the LHWCA excludes "masters or members of any crew," the statute contains no definitions of such individuals. Subsequent interpretation has not made the inquiry any easier. In fact, this confusion as to who is a "seaman" under the Jones Act has reached the United States Supreme Court four times in the past seven years, yet still the answer is unclear. 37 Rather than relay the tortured history of seaman status, I would prefer to begin with the current test utilized by courts. I will provide a bit of historical perspective while analyzing the various facets of the current test.

   Currently, courts utilize a two-part test to determine seaman status:

(1) "an employee's duties must contribute 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 group of such vessels) that is substantial in terms of both its duration and its nature." 38

   Prior to an explanation of each prong, I pause to note that whether an individual is a seaman

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is a mixed question of law and fact. 39 Summary judgment, however, is mandated where the facts and law will reasonably support only one conclusion regarding a claimant's status. 40

          a. ". . . contribute to the function of the vessel or to the accomplishment of its mission."

   The first prong of the seaman-status test simply requires that the employee perform the work of the ship. While this sounds simple, years of confusion and conflict preceded the Supreme Court's current clarification of this requirement in 1991. Prior to the inception of the Jones Act and LHWCA, courts were split over the proper work requirements of a "seaman." Some courts took the narrow view that a seaman must actually aid in the navigation of the ship. 41 Other courts, however, felt that a seaman need only serve the vessel's general purpose. This confusion continued after the passage of both Acts.

   In Johnson v. John F. Beasley Construction Co. , 42 the Seventh Circuit adopted the "aid in navigation" test requiring that "the person injured [have] made a significant contribution to the

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maintenance, operation or welfare of the transportation function of the vessel." 43 Thus, the Seventh Circuit emphasized that the employee's duties must relate to the actual transportation of the vessel in order to achieve seaman status. 44 Specifically, the Johnson court found that an ironworker who was building part of a bridge while aboard a construction barge was not a "seaman" because his duties had nothing to do with the transportation function of the vessel. 45

   On the other hand, the Fifth Circuit, in Offshore Co. v. Robinson , 46 held that a seaman's work should "contribut[e] to the function of the vessel or to the accomplishment of its mission." 47 The Robinson court found that a roughneck member of a drilling crew on a jack-up drilling rig, injured while the rig was jacked up on a drilling location, was a Jones Act seaman. 48 The court, in

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discussing the perimeter of the Act, stressed that "[t]he reach of the Jones Act is a peril of the sea." 49 The court concluded that:

[T]here is an evidentiary basis for a Jones Act case to go to a jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. 50

The Robinson decision was generally followed in other circuits, and has been referred to as the "guiding landmark" decision on seaman status and a "lighthouse" for maritime counsel. 51

   The Supreme Court resolved this Circuit split in McDermott International Inc. v. Wilander . 52 The Jones Act plaintiff in Wilander was a paint foremen, who worked on a "paint boat." 53 Plaintiff's job required him to travel on the "paint boat" to various oil drilling platforms that needed painting. The plaintiff, who was performing his duties, was struck in the head by a bolt that pressure forced out of a pipe. The Supreme Court upheld the plaintiff's status as a seaman, even though he played

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no role in the navigation of the vessel. The Court noted the debate among lower courts concerning whether a seaman must aid in the navigation of a vessel, and concluded: "We think the time has come to jettison the aid in navigation language." 54 The Court went on to hold, "It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work." 55 Therefore, a Jones Act plaintiff must contribute to the overall function of the particular vessel, rather than actually be involved in navigation. 56 The liberal use of this term is apparent when one considers that a fisherman, chambermaid, waiter, and bartender have all been held to be "seamen" because their services were in furtherance of the main objective of the enterprise in which the ship was engaged. 57

          b. Substantial "Connection to a Vessel in Navigation"

   In most cases, the injured employee will meet the first prong, and the question of "seaman" status will turn on the second prong, 58 which requires that plaintiffs "have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its

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duration and its nature." 59 The main focus of this prong is the type of employment the worker is engaged in, and the connection to a vessel or group of vessels. I will discuss the issues raised by the concept of vessel(s)' later in this speech. For now, however, my focus will be on the substantial connection requirement.

   The initial inquiry under the second prong is essentially whether the employee's duties take him or her to sea. 60 Such a focus, the Papai Court noted, "will give 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." 61 The Court continued, "The substantial connection test is important in distinguishing between sea- and land-based employment, for land-based employment is inconsistent with Jones Act coverage." 62 In Chandris, the Court enunciated the policy behind this "rule," stating: "The fundamental purpose of th[e] . . . substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection with a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea." 63

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   The Chandris Court went on to provide a rough measuring stick to determine whether or not a substantial connection' exists. The Court stated, "[A]n appropriate rule of thumb for the ordinary case . . . [is that] a worker who spends less than about [thirty] percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act," while "[a] maritime worker who spends only a fraction of his time working on board a vessel is fundamentally land-based and therefore not a member of the vessel's crew, regardless of what his duties are." 64

   This substantial connection prong can be further understood by discussing some ambiguous language in Chandris , that led to the Court's Papai decision reversing the Ninth Circuit's Papai decision. In Chandris the Court stated: "We see no reason to limit the seaman status inquiry . . . exclusively to an examination of the overall course of a worker's service with a particular employer." 65 The Ninth Circuit, in Papai , interpreted that phrase to mean that courts could examine an employee's work history with different employer's "during a relevant time period" to determine whether an employee mostly performed seaman duties. 66 The Supreme Court reversed, holding that the Chandris statement meant that courts should limit their examination to only the employee's current duties with his or her employer and not consider the employee's past duties with that same employer. 67

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   Following the Supreme Court's rulings in Papai and Chandris , the Ninth Circuit stated "when we determine whether the nature of [a plaintiff's] connection to [the vessel] is substantial, we should focus on whether [the plaintiff's] duties were primarily sea-based activities. In both cases, the Supreme Court emphasized that the purpose of the substantial connection test is to separate land-based workers who do not face the perils of the sea from sea-based workers whose duties necessarily require them to face those risks." 68 Thus, the current inquiry concerns whether an employee's current duties are sea-based.

   The first post- Papai decision by the Ninth Circuit, Cabral v. Healy Tibbits Builders, Inc. , 69 involved an employee who worked on a variety of land-based and sea-based projects for his employer. The plaintiff was working as the operator for a construction project at the Ford Island Ferry in Pearl Harbor at the time of his injury. The project involved removing and replacing mooring dolphins at a ferry. A mooring dolphin is a timber pile driven into the bottom of the harbor that cushions the ferry during landing. The plaintiff was assigned to operate the crane aboard a barge, and between August 15, 1994 and the date of the accident, he spent approximately ninety percent of his time working aboard the barge operating the vessel's crane. While the barge was not

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self-propelled, it could be moved up to 500 feet by manipulating its anchor lines. The plaintiff slipped and fell as he reported to work one morning and injured his lower back. The plaintiff subsequently filed a Jones Act claim.

   The Ninth Circuit noted that it was not in dispute that the plaintiff met the first requirement of the Chandris test. The court, however, concluded that the plaintiff was a land-based worker with only a "transitory or sporadic connection" to the barge. The court noted that plaintiff was hired as a crane operator, not as a crew member, and that plaintiff was never aboard the barge when it was anywhere but the Ford Island ferry project. Additionally, plaintiff was not going to be working on the ferry after the project was completed. The Ninth Circuit concluded, "All of the evidence points to one conclusion: that [the plaintiff] was a land-based crane operator who happened to be assigned to a project which required him to work aboard [the barge]." 70

   Prior to ending this discussion, I would like to note that while this prong focuses upon the claimants employment status, the title of the employee's job does not control. In Southwest Marine, Inc. v. Gizoni , 71 the Supreme Court held that a maritime worker may not be denied seaman status under the Jones Act simply because his occupation is one of those enumerated in the mutually exclusive LHWCA. 72 This decision rejected the Fifth Circuit's reasoning in Pizzitolo v. Electro-

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Coal Transfer Corp ., 73 which held that a worker whose occupation was clearly covered by the LHWCA could not, as a matter of law, be considered a member of the crew of a vessel.

   In summary, the "substantial connection" requirement requires a duration of approximately thirty (30) percent of the time on working aboard a vessel. This is not, however, a hard and fast rule. 74 Additionally, one must analyze the nature of an employee's work, taking into consideration whether it is land based or includes exposure to the perils of the sea. By focusing on an employee's current employment, the Papai Court has helped clarify the muddied distinction between potential Jones Act plaintiffs and longshoremen. The next step is to determine whether the substantial employment related connection is to a vessel or group of vessels.

       2. Vessel (or Group of Vessels) in Navigation

   A key inquiry in determining whether an employee is entitled to compensation under the Jones Act, rather than the LHWCA, is whether he or she has a substantial connection to a vessel (or group of vessels) in navigation. I shall divide this very important issue into two main subsections: (1) a discussion of what constitutes a vessel in navigation and (2) the so-called fleet doctrine.' Within each subheading I shall discuss the current law and problem areas facing the maritime bar

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and bench.

          a. Vessel in Navigation

   As previously noted, a seaman has a substantial connection to a vessel (or group of vessels) in navigation. The Fifth Circuit has described this requirements, as follows: "The existence of a vessel is a fundamental prerequisite to Jones Act jurisdiction' and is at the core of the test for seaman status." 75

   The term "vessel" itself has many meanings. In fact, in DiGiovanni v. Traylor Brothers, Inc., 76 dissenting Judge Torruella commented that there are at least twenty-four "federal maritime or maritime related laws which define vessel." 77 The LHWCA defines "vessel" as:

any vessel upon which or in connection with which any person entitled to benefits under this Act suffers injury or death arising out of or in the course of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member. 78

The Jones Act does not define the term vessel' beyond stating it "shall be understood to

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comprehend every description of vessel navigating on any sea or channel, lake or river" 79 and courts have repeatedly held that "the term is incapable of precise definition." 80 In Ellender v. Kiva Construction & Engineering, Inc ., 81 the Fifth Circuit noted this confusion, but instructed:

[W]e may rely on the purpose for which the craft was built and the business in which it was engaged to guide our inquiry. Other factors, like the structure's size, its ability to float, its permanent fixation to the shore or the bottom, and its movement or its ability to move across navigable waters are inconclusive. Further, a structure whose primary function is non-navigational or non-transportational may still qualify as a vessel if the structure was involved in navigation at the time of injury. 82

   Generally, a vessel is in navigation if the ship is engaged as an instrument of commerce and transportation on navigable waters. 83 Further, regardless of whether or not it is a commercial vessel, the key question is whether the vessel has been placed in navigation for its intended purpose. 84 When applying the vessel in navigation' test, courts must focus on the current purpose of the structure, rather than its design or original purpose. 85 Further, the Fifth Circuit has held that "A ship

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is considered in navigation' when there is an intention to put out to sea and [the ship] is being repaired for the voyage." 86

   As is somewhat apparent, a vessel in navigation often will be obvious and not an issue in dispute. The increased use of non-traditional structures, however, has led to new questions and debates. In Gremillion v. Gulf Coast Catering Co., 87 the Fifth Circuit recognized this trend by noting that while the existence of a vessel is fundamental to a Jones Act inquiry, "[u]nfortunately, the term vessel' has escaped precise definition, which helps to explain why special-use structures . . . may qualify at times as Jones Act vessels, despite traditional notions in maritime jurisprudence to the contrary." 88 New issues in this area are best exemplified with the increased presence of working barges and floating casinos. 89 In fact, the Fifth Circuit's latest decision in this area discussed non-traditional structures, and distinguished special purpose vessels, such as jack-up rigs, from work platforms. 90

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             i. Working Barges

   In Tonnesen v. Yonkers Contracting Co. , 91 the Second Circuit asked the question: "[W]hen is a barge that is used as a work platform not a vessel in navigation' as a matter of law?" 92 Tonnesen involved a crane barge that had "no means of self propulsion, no rudder and no navigational lights, and its was moved around the job site by a work boat." 93 At the time of plaintiff's injury, the barge was upon navigable waters, but was secured by steel spuds. While the District Court granted the defendant's motions for summary judgment on grounds that the barge was not a vessel in navigation for purposes of the Jones Act, the Second Circuit reversed stating that the issue was best left to the jury. In its opinion, the Second Circuit enumerated a three-factor test to determine when a floating structure is a vessel in navigation:

(1) whether the structure was being used primarily as a work platform during a reasonable period of time immediately preceding the accident; (2) whether the structure was moored or otherwise secured at the time of the accident; and (3) whether, despite being capable of movement, any transportation function performed by the structure was merely incidental to its primary purpose of

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serving as a work platform. 94

    Tonnesen expressly rejected the First Circuit's decision in DiGiovanni v. Traylor Bros., Inc. 95 DiGiovanni involved a crane barge that had no means of self-propulsion and was moved around the job site by a tug boat. 96 Like in Tonnesen , the barge was fastened by steel spuds when the plaintiff

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was injured. The First Circuit, however, concluded that, as a matter of law, the barge was not a vessel in navigation. 97 Rather, the court held that the barge was a work platform. 98 The court concluded that if a barge or any other float's purpose or primary business is not transportation of passengers or cargo, the workers assigned to it are to be considered seamen only when it is in actual navigation or transit. 99 The First Circuit relied upon Fifth Circuit law, although a question exists as to whether or not the court applied it correctly. 100 This decision of the First Circuit has been followed by the Sixth Circuit. 101

   Despite this split amongst the Circuits, I believe that the Fifth Circuit's multiple factor test should be relied upon by litigants and judges outside the First and Sixth Circuit when analyzing jurisdiction over Jones Act claims. Such a test is more closely aligned with the Supreme Court's policy and interpretation of this issue. The factors laid out by the Tonnesen court provide a solid

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analytical test to discover the true function of a particular floating work platform. This split, however, will remain unresolved until clarified by the Supreme Court.

             ii. Floating Casinos

   One of the hottest topics for maritime lawyers, insurers and gamblers alike is the rise and proliferation of floating casinos. More and more states and cities are looking towards these casinos to stimulate job growth and raise tax revenues. One such casino, the Casino Queen , has been described by the mayor of East St. Louis as "the catalyst for the future of East St. Louis." 102 The Casino Queen 's Web site proudly proclaims: "When the majestic Casino Queen first docked on the East St. Louis Riverfront in June 1993, it marked the beginning of the rebirth of this struggling community and the creation of one of the most popular entertainment attractions in the idwest." 103

   Floating casinos raise a number of new issues for insurance companies, courts and lawyers. 104 The first round of legal battles in the area of the Jones Act and LHWCA have involved

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the determination of whether or not floating casinos are vessels under the Jones Act and other maritime recovery statutes.

   The current state of the law on this issue has been laid out in the Fifth Circuit's well-reasoned and most significant decision in Pavone v. Mississippi Riverboat Amusement Corporation . 105 Pavone involved the consolidation of two cases brought by employees of Biloxi Belle, a "floating dockside casino moored in Biloxi, Mississippi." 106 The first claim was brought by a bartender who claimed that he suffered an injury when he stepped on a screw which penetrated his shoe and punctured his foot the day before the Biloxi Belle's grand opening. 107 The second plaintiff was a cocktail waitress who claimed to have injured her knee when she tripped over a garbage can lid and fell while working. 108

   The Biloxi Belle itself is a barge which houses a casino. The Biloxi Belle was "moored to shore by lines tied to sunken steel pylons that were filled with concrete." 109 Additionally, the casino

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was connected to the pier by steel rams and cable lines for electricity and other utilities. 110 The Biloxi Belle was licensed by the ississippi Game Commission pursuant to an Act which licensed only operators of vessels or cruise vessels. 111 Further, a tow company was under contract to tow the Biloxi Belle when necessary, as was the case in August of 1992 when Hurricane Andrew threatened. 112 Irrespective of the towing contract, the Biloxi Belle had "no engine, no captain, no navigational aids, no crewquarters, and no lifesaving equipment . . . [the] faux pilot house contains no steering mechanism, but is decorated with an antique wheel for purely aesthetic purposes. Decorative ring buoys are located on the Biloxi Belle but they too are purely visual effects and are not intended for lifesaving use." 113 Additionally, the court noted that while the Biloxi Belle had a motorized paddle wheel, it "rests permanently above the water level and serves no propulsion function." 114

   In analyzing whether or not the Biloxi Belle was a vessel, the court limited its discussion to "vessels withdrawn from navigation or being used as work platforms," and not all floating casinos. 115

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The court then performed a review of three relevant non-vessel cases 116 and distilled the three common attributes of non-vessels:

(1) The structure was constructed to be used primarily as a work platform; (2) the structure is moored or otherwise secured at the time of the accident; and (3) although the platform is capable of movement, and is sometimes moved across navigable waters in this course of normal operations, any transportation function is merely incidental to the platform's primary purpose. 117

The court, analyzing the Biloxi Belle according to that standard, concluded that "there can be little doubt that indefinitely moored, shore-side, floating casinos" are not vessels. 118

   The Pavone holding is consistent with a long line of cases in which permanently moored ships were held not to be vessels. 119 Additionally, subsequent to Pavone , cases involving

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permanently moored casinos have all found such ships to be non-vessels for federal maritime law purposes. 120 Questions remain, however, for non-moored floating casinos. In fact, Pavone acknowledged this, by expressing the court's "nagging concern" that the district court decisions may be too broad and could "haunt" future cases:

For example, whether floating casinos, bars, restaurants, etc. would be Jones Act vessels for purposes of accidents occurring while they were being towed to a new location or to a shipyard or dry dock for work or repairs or to shelter waters in avoidance of hurricanes. 121

Therefore, this potential for Jones Act recovery could exist on floating casinos, like the Casino Queen , that actually cruise upon the water. This could lead to insurance questions and increased

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litigation. 122

          b. Fleet Doctrine

   In order to qualify as a Jones Act seaman, the general test is that an individual must have a substantial employment connection to a vessel or group of vessels in navigation. I have just discussed the definition of vessel' and in navigation,' now I shall turn to the concept of a group' of vessels. This phrase has inevitably led to questions as to what exactly comprises a "group" of vessels: Does a plaintiff need to work for the same employer, or is it sufficient that the worker is continually and consistently employed on a variety of independently owned vessels?

   Generally, courts have held that an employee can qualify as a seaman by showing the requisite work connection with a single vessel or "an identifiable fleet of vessels." 123 The so-called "fleet doctrine" was articulated in the seminal case of Braniff v. Jackson Ave.-Gretna Ferry , 124 which held that a Jones Act seaman need not have a permanent connection to one specific ship. 125

[Page 35]

Specifically, the Braniff court reversed a grant of summary judgment denying seaman status to a worker who was principally employed in maintenance work on several ferries owned and operated by his employer. His work was done while the ferries were operating on the ississippi River, thus he faced the traditional seaman perils of the sea. The court noted that while seaman status could be established by a connection to a group of vessels, the Fifth Circuit stressed that the connection between the employee and the fleet must be substantial in regard to time and work. 126 Thus, sporadic activity on a series of vessels is insufficient.

   The "fleet doctrine" was generally held to involve only vessels that were part of a commonly owned or commonly-controlled identifiable fleet. 127 Subsequently, in Bertrand v. International Mooring & Marine , 128 the Fifth Circuit seemed to erase the need for common ownership or control of a fleet. The Bertrand court held that an anchor-handling crew who worked on twenty-five different vessels, and who spent 90% of their work time aboard such vessels, could be Jones Act seamen, even though the vessel had no common ownership or control. Two commentators have noted that " Bertrand was decried as having expanded the fleet' definition to the point of

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meaninglessness." 129 The Fifth Circuit, without expressly over-ruling Bertrand , subsequently returned to the more standard definition, stating: "By fleet we mean an identifiable group of vessels acting together or under one control." 130

   In Chandris the Supreme Court seemed to imply its acceptance of the "fleet doctrine." The Chandris Court described the rule as "allow[ing] seaman status for those workers who had the requisite connection with an identifiable fleet' of vessels, a finite group of vessels under common ownership or control." 131 Two years later, the Supreme Court returned to further clarify the issue. In Papai , the Court held that in order for an individual to qualify as a seaman under the "fleet doctrine," there must be some degree of common ownership or control over the fleet of vessels, to which the individual is "substantially connected." 132 Papai involved a plaintiff who suffered a permanently disabling knee injury during a one-day maintenance project. The plaintiff was hired through the Inland Boatman's Union's hiring hall, and obtained deckhand jobs on various vessels operated by various owners through the hall, for a couple of years. In fact, the plaintiff had performed a dozen jobs for Harbor Tug over the months preceding the knee injury. The majority of vessels, however, were independently owned and operated.

   The Court held that the plaintiff had failed to establish his substantial connection to a fleet,

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and, therefore that was insufficient evidence for a jury to reasonably conclude that he was a seaman for the purposes of the Jones Act. The Court stated:

There was no showing that the group of vessels the court sought to identify were subject to unitary ownership or control in any aspect of their business or operation. So far as the record shows, each employer was free to hire, assign, and direct workers for whatever tasks and time period they each determined, limited, at most, by the IBU Deckhands Agreement. In deciding whether there is an identifiable group of vessels of relevance for a Jones Act seaman status determination, the question is whether the vessels are subject to common ownership or control. The requisite link is not established by the mere use of the same hiring hall which draws from the same pool of employees.

Considering prior employments with independent employers in making the seaman status inquiry would undermine "the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act (and perhaps more importantly for purposes of the employers' workers' compensation obligations, who will be covered by the LHWCA) before a particular work day begins." 133

   This holding could present complications in the future if opportunistic employers attempt to circumvent Jones Act liability by relying more on union hall hiring rather than actual employees. I shall address this issue, together with other questions for the future, in just a few moments. For now, however, parties must use care to analyze whether or not the injured worker's substantial employment-related connection was to a group of commonly owned or controlled vessels. If not, the employees will not qualify as Jones Act seamen under the fleet doctrine.

    C. Unanswered Questions

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   I would like to conclude this section by discussing some unsettled questions and possible "hot topics" for future litigation in borderline Jones Act/LHWCA cases. Specifically, I would like to discuss: (1) jurisdictional estoppel; (2) the future of floating casinos; and (3) the issue of unpaid volunteers qualifying as seamen.

       1. Jurisdictional Estoppel

   The first issue certified to the Supreme Court in Papai , but unaddressed, was "whether an administrative ruling in favor of the employee on his claim of coverage under the LHWCA bars his claim of seaman status in the Jones Act suit he wishes to pursue in district court." 134 This unresolved issue has caused a split of authority among the Circuits as to the effect of an administrative determination regarding "seaman" status on subsequent Jones Act litigation. This question is extremely important because maritime law permits an injured worker to pursue both LHWCA and Jones Act actions for the same injury "based on inconsistent claims as to [his/her] status at the time of the injury." Therefore, an estoppel effect should play into both a claimant's choice of forum and an employer's defense strategies. 135

   Essentially, judicial estoppel precludes a party from gaining an advantage by taking one

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1 The views expressed herein are solely those of the author and should not be interpreted as those of anyone else in the Office of Administrative Law Judges or the Department of Labor. I would like to thank Attorney Patrick T. Egan, my law clerk, for his assistance in the research and preparation of this paper.

2 Miles v. Apex Marine Corp ., 498 U.S. 19, 27 (1990).

3 See Southern Pacific Co. v. Jensen , 244 U.S. 205 (1927).

4 The origins of this saying are from Robert Burn's poem "To A Mouse" which stated:

the best laid schemes o' mice an' men Gang, aft agley."

5 I.N.S. v. Cardoza-Fonseca , 480 U.S. 421, 452 (1987) (Scalia, J. concurring).

6 See Davis v. Department of Labor , 317 U.S. 239, 253, 256 (1942) (utilizing both terms).

7 Johnson v. John F. Beasley Const. Co. , 742 F.2d 1054, 1060 (7th Cir. 1984), cert. denied , 469 U.S. 1211 (1985).

8 Chandris, Inc. v. Latsis , 515 U.S. 347, 356 (1995) (quoting Brown v. ITT Rayonier, Inc. , 497 F.2d 234, 236 (5th Cir. 1974)).

9 John R. Hillsman, The Jones and Longshore Acts: There Are Many Doors to the Kingdom of Heaven , 2 Longshore Newsletter 18, 18 (1984).

10 B. James Finnegan, The Jones and Longshore Acts: It's a Rainy Day in Heaven , 2 Longshore Newsletter 35, 41 (1984).

11 Harbor Tug & Barge Co. v. Papai , 117 S. Ct. 1535 (1997); Chandris, Inc. v. Latsis , 515 U.S. 347 (1995); Southwest Marine, Inc. v. Gizoni , 502 U.S. 81 (1991); McDermott Int'l, Inc. v. Wilander , 498 U.S. 337 (1991).

12 Chandris, Inc. v. Latsis , 515 U.S. 347, 358 (1995).

13 The Osceola , 189 U.S. 158 (1903).

14 Jones Act, ch. 250, § 33, 41 Stat. 988, 1007 (1920) (current version at 46 U.S.C. § 688); see also generally Hon. Peter Beer, Keeping Up With the Jones Act , 61 Tul. L. Rev. 379 (1986) (providing a detailed history of the Jones Act).

15 46 U.S.C. § 688 (1994 & Supp. 1997).

16 Id.

17 Cook v. American S.S. Co. , 53 F.3d 733 (6th Cir. 1995); Trentacosta v. Frontier Pac. Aircraft Indus. Inc. , 813 F.2d 1553 (9th Cir. 1987); Rachal v. Ingram Corp. , 795 F.2d 1210 (5th Cir. 1986).

18 O'Donnell v. Great Lakes Dredge & Dock Co. , 318 U.S. 36, 43 (1943); Panama R. Co. v. Vasquez , 271 U.S. 557, 561 (1926).

19 Engel v. Davenport , 271 U.S. 33, 37-38 (1926) (noting that non-removal results from the Jones Act's incorporation by reference of the provisions in the Federal Employer's Liability Act limiting removal).

20 See, e.g., Allen v. Seacoast Products, Inc. , 623 F.2d 355 (5th Cir. 1980).

21 1 Schoenbaum, Admiralty and Maritime Law (2d ed. 1994), § 6-18, p. 297-303.

22 Jack L. Allbritton, Seaman Status In Wilander 's Wake , 68 Tul. L. Rev. 373, 374 (1994).

23 Id.

24 107 F.3d 331 (5th Cir. 1997) (en banc).

25 Id. at 339; see also generally Eric Hanson, Comment, Gautreaux v. Scurlock Marine, Inc.: The Fifth Circuit Corrects Its "Slight" Mistake and Holds Seamen to a Duty of Ordinary Prudence for Their Own Safety in Jones Act Negligence Cases , 72 Tul. L. Rev. 1023 (1997).

26 In Wilander , the Supreme Court indicated that Congress used the term "seaman" as a "maritime term of art" having the meaning ascribed to it by the pre-Jones Act jurisprudence. McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 342 (1991).

27 272 U.S. 50 (1926).

28 Id. at 52.

29 33 U.S.C. § 901, et seq.

30 McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 346-47 (1991).

31 33 U.S.C. § 905(a).

32 33 U.S.C. § 902 (3)(G).

33 See, e.g. , Harbor Tug & Barge Co. v. Papai , 117 S. Ct 1535, 1539 (1997); Chandris, Inc. v. Latsis , 515 U.S. 347, 355 (1995); McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 353 (1991). Two commentators have noted that "[i]ronically, it was through the LHWCA that Congress defined the term seaman, excluding from its coverage a master or member of the crew of any vessel.' As a result of this exclusion in the LHWCA, many of the early cases attempting to define a Jones Act seaman were in fact LHWCA cases." Jack L. Allbritton & David W. Robertson, Seaman Status after Chandris, Inc. v. Latsis, 8 U.S.F. Mar. L.J. 29, 33 (1995) (citation omitted).

34 See Harbor Tug & Barge Co. v. Papai , 117 S. Ct. 1535, 1538 (1997).

35 Chandris, Inc. v. Latsis , 515 U.S. 347, 367-72 (1995); McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 355 (1991).

36 Chandris, Inc. v. Latsis , 515 U.S. 347, 367-72 (1995); McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 355 (1991).

37 See supra note 11.

38 Chandris, Inc. v. Latsis , 515 U.S. 347, 368 (1995).

39 Cabral v. Healy Tibbits Builders , 118 F.3d 1363, 1364 (9th Cir.), amended and superceded on denial of reh'g by , 128 F.3d 1289 (9th Cir. 1997).

40 McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 356 (1991).

41 This has been described as follows: "[T]he persons engaged on board . . . must have been possessed of some skill in navigation. They must have been able to hand, reef and steer,' the ordinary test of seamanship." The Canton , 5 F. Cas. 29, 30 (No. 2,388) (D. Mass. 1858).

42 742 F.2d 1054, 1063 (7th Cir. 1984), cert. denied , 469 U.S. 1211 (1985).

43 Id. (emphasis added).

44 The Johnson court stated:

[W]e hold that in these equivocal situations there is an evidentiary basis for submitting to the jury the question whether the person was a member of the crew of a vessel at the time of injury: (1) the person injured had a more or less permanent connection with a vessel in navigation, and (2) the person injured made a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel.

Id. 1062-63.

45 Id. at 1063.

46 266 F.2d 769 (5th Cir. 1959).

47 Id. at 779.

48 Id. at 771-72.

49 Id. at 771.

50 Id. at 779.

51 Allbritton & Robinson, supra note 33, at 39 (quoting Barrett v. Chevron, U.S.A. Inc. , 781 F.2d 1067, 1073 (5th Cir. 1986) (en banc)).

52 498 U.S. 337 (1991).

53 Id. at 339.

54 Id. at 353.

55 Id. at 355.

56 See, e.g. , Boy Scouts of America v. Graham , 86 F.3d 86, 8641 (9th Cir. 1996); Fisher v. Nichols , 81 F.3d 319 (2d Cir. 1996); Johnson v. Continental Grain Co. , 58 F.3d 1232 (8th Cir. 1995).

57 See McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 345-46 (1991) (discussing historical development of the case law).

58 Harbor Tug & Barge Co. v. Papai , 117 S. Ct. 1535, 1540 (1997).

59 See Fisher v. Nichols , 81 F.3d 319 (2d Cir. 1996); Coats v. Penrod Drilling Corp. , 61 F.3d 1113 (5th Cir. 1995) (en banc).

60 Harbor Tug & Barge Co. v. Papai , 117 S. Ct. 1535, 1540 (1997).

61 Id.

62 Id. at 1542-43.

63 Chandris, Inc. v. Latsis , 515 U.S. 347, 368 (1995).

64 Id. at 371.

65 Id. at 371-72.

66 Harbor Tug & Barge, Co. v. Papai , 67 F.3d 203 (9th Cir. 1995), rev'd , 117 S. Ct. 1535 (1997).

67 Id. at 1541. In a related matter, the Ninth Circuit has recently held, in an unpublished opinion, that an employee who had only spent one week working for the employer could qualify as a seaman, noting that the plaintiff "spent all of his time during that week at sea, participating in maritime activities for approximately fourteen hours per day." Perez v. Keystone Shipping Co. 131 F.3d 147 (Table), No. 96-55994, 1997 WL 753412 (9th Cir. Nov. 28, 1997) (unpublished disposition).

68 Cabral v. Healy Tibbits Builders, Inc. , 128 F.3d 1289, 1293 (9th Cir. 1997) (citing Harbor Tug & Barge Co. v. Papai , 117 S. Ct. 1535, 1540 (1997); Chandris, Inc. v. Latsis , 515 U.S. 347, 368 (1995)).

69 128 F.3d 1289 (9th Cir. 1997).

70 Id. at 1293.

71 502 U.S. 81 (1991).

72 Id. at 88-89.

73 812 F.2d 977 (5th Cir. 1987), cert. denied , 484 U.S. 1059 (1988).

74 See Viator v. Gordon's Trucking Co. , 875 F. Supp. 369, 373 (D.C. La. 1995) (holding that a barge pilot who spent one-fifth to one-quarter of his time piloting a barge was eligible for Jones Act "seaman" status based upon a fact-specific examination).

75 Gremillion v. Gulf Coast Catering Co. , 904 F.2d 290, 292 (5th Cir. 1990).

76 959 F.2d 1119 (1st Cir.), cert. denied , 506 U.S. 827 (1992).

77 Id. at 1124 n.9 (Torruella, J., dissenting).

78 33 U.S.C. § 902(21). I pause to note that courts in the Fifth Circuit have consistently held that the term "charter" as used is a misprint of "charterer." See Lewis v. Keyes 303 Inc. , 834 F. Supp. 191 (S.D. Tex. 1993).

79 46 U.S.C. § 713 (1915).

80 Ellender v. Kiva Constr. & Engineering, Inc. , 909 F.2d 803, 806 (5th Cir. 1990).

81 909 F.2d 803 (5th Cir. 1990).

82 Id. at 806 (citations omitted).

83 Garret v. Dean Shank Drilling Co. , 799 F.2d 1007, 1009 (5th Cir. 1986); see also Williams v. Avondale Shipyards, Inc. , 452 F.2d 955, 958 (5th Cir. 1971).

84 Garrett v. Dean Shank Drilling Co. , 799 F.2d 1007, 1009 (5th Cir. 1986); Williams v. Avondale Shipyards, Inc. , 452 F.2d 955, 958 (5th Cir. 1971).

85 Tonnesen v. Yonkers Contracting, Co. , 82 F.3d 30, 36 (2d Cir. 1996).

86 First Bank & Trust v. Knachel , 999 F.2d 107, 108 (5th Cir. 1993).

87 904 F.2d 290 (5th Cir. 1990).

88 Id. at 292 (citations omitted).

89 See Tonnesen v. Yonkers Contracting Co. , 82 F.3d 30 (2d Cir. 1996); Digiovanni v. Traylor Bros., Inc. , 959 F.2d 1119 (1st Cir.), cert. denied , 506 U.S. 827 (1992).

90 Manuel v. P.A.W. Drilling & Well Serv., Inc. , -- F.3d --, No. 97-30008, 1998 WL 58992 (5th Cir. Mar. 2, 1998). The court stated:

In evaluating whether a structure is a vessel, we begin by examining "the purpose for which the craft is constructed and the business in which it is engaged." . . . In applying this test, two divergent lines of cases have emerged. In one line of cases, we have concluded that special purpose structures such as jack-up rigs, mobile, submersible drilling barges, derrick barges, spud barges, and others are vessels as a matter of law, even though they also served, in part, as work platforms. Conversely, in the second line of cases, we have held that a variety of structures utilized predominately as work platforms are not vessels.

Id. at *3 (internal citations and footnotes omitted).

91 82 F.3d 30 (2d Cir. 1996).

92 Id. at 31.

93 Id. at 31-32.

94 Id. at 36. A somewhat similar test was articulated in Bernard v. Binnings Const. Co., Inc. , 741 F.2d 824 (5th Cir. 1984) where the court developed a list of objective features which would suggest that a structure's intended purpose is transportation across navigable waters. "These features include: (1) navigational aids; (2) raked bow; (3) lifeboats and other lifesaving equipment; (4) bilge pumps; (5) crew quarters; and (6) registration as a vessel with the Coast Guard." Bernard v. Binnings Const. Co., Inc. , 741 F.2d 824, 832 n. 25 (5th Cir. 1984).

   The Longshore Bench Book provides similar guidance:

Floating work platforms which were determined not to be vessels had at least some of the following criteria in common:

(1) The structures were constructed/re-constructed for use primarily as work platforms;
(2) The structures were moored/secured when the injury occurred;
(3) Although "capable" of movement and sometimes moved, the transportation function was incidental to the primary purpose of serving as a work platform;
(4) The structure generally had no navigational lights and/or navigational equipment;
(5) The structures had no means of self-propulsion;
(6) The structures were not registered with the Coast Guard;
(7) The structures did not have crew quarters/a galley.

Longshore Bench Book, 1-12 to 1-13 (emphasis in original) (citing Bernard v. Binnings Constr. Co. , 741 F.2d 824 (5th Cir. 1984); Sharp v. Wausau Ins. Cos. , 917 F.2d 885 (5th Cir. 1990), amended sub. nom. Sharp v. Johnson Bros. Corp. , 923 F.2d 46 (5th Cir. 1991); Ellender v. Kiva Constr. & Eng'g , 909 F.2d 803 (5th Cir. 1990); Menard v. Brownie Drilling Co. , 1991 U.S. Dist. LEXIS 13531 (E.D. La. 1991)).

95 959 F.2d 1119 (1st Cir.), cert. denied , 506 U.S. 827 (1992).

96 Id. at 1120-21.

97 Id. at 1123-24.

98 Id.

99 Id. at 1123.

100 In reaching this decision, the First Circuit claimed to rely upon Fifth Circuit precedent. The following Fifth Circuit cases held as a matter of law that a work barge was not a vessel in navigation at the time of the injury. See, e.g., Burchett v. Cargill, Inc. , 48 F.3d 173 (5th Cir. 1995); Ellender v. Kiva Constr. & Eng'g, Inc. , 909 F.2d 803 (5th Cir. 1990) ; Gremillion v. Gulf Coast Catering Co. , 904 F.2d 290 (5th Cir. 1990). The dissenting Judge in DiGiovanni expressly questioned whether the majority was applying the Fifth Circuit precedent correctly. See DiGiovanni v. Taylor Bros., Inc ., 959 F.2d 1119, 1124 n.9 (1st Cir. 1992) (J. Torruella, dissenting) (commenting that the majority misread Fifth Circuit precedent), cert. denied , 506 U.S. 827 (1992).

101 Hatch v. Durocher Dock & Dredge, Inc. , 820 F. Supp. 314, 316 (E.D. Mich 1993), aff'd , 33 F.3d 545 (6th Cir. 1994).

102 The Queen (visited January 13, 1998) (https://www.casinoqueen.com/queen.htm).

103 Id.

104 In Pavone v. ississippi Riverboat Amusement Corp. , 52 F.3d 560 (5th Cir. 1995), a seminal case dealing with floating casino status, the Fifth Circuit postulated:

With the recent and presumably continuing proliferation of such gaming' establishments in Louisiana and Mississippi, and the question of legalized casino gambling still being openly discussed and debated in Texas, we speculate that the cases we consider today are merely the vanguard of a host of future legal efforts to advance as maritime causes of action all sorts of personal injury and property damage claims arising from occurrences on or near moored floating casinos and similar establishments.

Id. at 568 n.22.

105 52 F.3d 560 (5th Cir. 1995).

106 Id. at 562.

107 Id. at 562-63.

108 Id. at 563.

109 Id. at 564.

110 Id.

111 Id. I pause to note that United States Coast Guard documentation and filings are not conclusive as to the issue of what constitutes a "vessel." Daniel v. Ergon, Inc. , 892 F.2d 403, 407 n.9 (5th Cir. 1990).

112 Pavone v. ississippi Riverboat Amusement Corp. , 52 F.3d 560, 564 (5th Cir. 1995).

113 Id.

114 Id.

115 Id. at 568 n.24.

116 Gremillion v. Gulf Coast Catering Co. , 904 F.2d 290, 293-94 (5th Cir. 1990) (announcing three-prong definition of non-vessel); Ducrepont v. Baton Rougue Enter., Inc. , 877 F.2d 393 (5th Cir. 1989) (holding that a structure could meet the work-platform definition under Bernard even if it had not originally been constructed for that purpose); Bernard v. Binnings Constr. Co. , 741 F.2d 824 (5th Cir. 1984) (holding that dry docks and analogous structures with the primary purpose of providing a work platform are not Jones Act vessels, even if the structures are afloat).

117 Pavone v. ississippi Riverboat Amusement Corp. , 52 F.3d 560, 570 (5th Cir. 1995) (citing Gremillion v. Gulf Coast Catering Co. , 904 F.2d 290. 293-94 (5th Cir. 1990)).

118 Id. at 570.

119 See Hayford v. Doussony , 32 F.2d 605 (5th Cir. 1929) (holding a gunboat converted and refitted as an amusement and dance barge is not a vessel, despite the fact that it could be moved and would be moored when the Mississippi River was high). The Hayford court commented that the ship "was not used, or intended to be used, to carry freight or passengers from one place to another, was not an instrument of navigation or commerce, and performed no function that might not have been performed as well by a floating stage or platform permanently attached to land." Id. at 605. See also Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co. , 271 U.S. 19, 22 (1926) (holding wharf boat built primarily as an office, warehouse and wharf, which could be moved, not a vessel); Katheriner v. UNISEA, Inc. , 975 F.2d 657 (9th Cir. 1992) (holding ship converted into permanently moored floating fish processing plant not a vessel); Ducrepont v. Baton Rougue Marine Ent., Inc. , 877 F.2d 393 (5th Cir. 1989) (holding barge converted into a stationary work platform moored firmly to shore but adjusted to respond to tides held not to be a vessel); The Hendrick Hudson , 11 Fed. Cases 1085 (S.D.N.Y. 1869) (holding dismantled steamboat refitted as saloon and hotel not a vessel).

120 See McAdow v. Promus Cos., 926 F. Supp. 93, 96 (W.D. La. 1996) (noting "[t]here can be no principled basis to distinguish between a solidly moored barge casino and a solidly moored paddle wheel casino"); Chase v. Louisiana Riverboat Gaming Partnership , No. 30368-CW, 1998 WL 70925 (L.A. App. 2 Cir. Feb. 25, 1998) (holding the Lady of the Isle Casino is not a Jones Act vessel); King v. Grand Casinos of Miss., Inc. , 697 So.2d 439 (1997) (holding shore-side casino does not constitute a vessel, despite the fact that it was constructed partially out of navigable barges); Matter of Treasure Bay Corp. , 205 B.R. 490, 495-96 (S.D. Miss. 1997) (applying three-prong non-vessel status test). The Pavone decision was also consistent with the preceding case of In re Biloxi Casino Belle Inc. , 176 B.R. 427 (S.D. Miss. 1995) (holding that a permanently moored floating casino did not constituted a vessel for the purposes of federal admiralty and maritime matters and the Ship Mortgage Act).

121 Pavone v. ississippi Riverboat Amusement Corp. , 52 F.2d 560, 568 (5th Cir. 1995).

122 Gary Taylor, Murky Liability Status Sets Waterfront Gambling Adrift , Nat'l L. J., Nov. 21, 1994 at B1 (noting actual floating casinos raise new insurance and litigation issues).

123 Chandris, Inc. v. Latsis , 515 U.S. 347, 368-72 (1995) (approving of "fleet doctrine" in passing); Johnson v. Continental Grain Co. , 58 F.3d 1232, 1236 (8th Cir. 1995); Gizoni v. Southwest Marine , 56 F.3d 1138, 1149 (9th Cir.), cert. denied , 116 S. Ct. 381 (1995); Reeves v. Mobile Dredge & Pumping Co. , 26 F.3d 1247, 1256 (3d Cir. 1994); Braniff v. Jackson Ave.-Gretna Ferry, Inc. , 280 F.2d 523, 528 (5th Cir. 1960), reh'g denied , 289 F.2d 939 (5th Cir. 1961); Vowell v. G & H Towing Co. , 870 F. Supp. 162, 164-65 (S.D. Tex. 1994).

124 280 F.2d 523, 528 (5th Cir. 1960), reh'g denied , 289 F.2d 939 (5th Cir. 1961).

125 Id. at 528.

126 Id.

127 Langston v. Schlumberger Offshore Servs. , 809 F.2d 1192 (5th Cir. 1987) (holding that employee who worked on fifteen different vessels owned by ten different owners did not constitute working on a fleet); Jones v. Mississippi River Grain Elevator , 703 F.2d 108, 109 (5th Cir.) (stating fleet doctrine inapplicable where claimant "was assigned on a random basis to perform uploading-preparation duties on a considerable number of variously owned vessels of others than his employer"), cert. denied , 464 U.S. 856 (1983); Guidry v. Continental Oil Co. , 640 F.2d 523, 529 (5th Cir.), cert. denied , 454 U.S. 818 (1981).

128 700 F.2d 240 (5th Cir. 1983), cert. denied , 464 U.S. 1069 (1984).

129 Allbritton & Robertson, supra note 33, at 49.

130 Barrett v. Chervon, U.S.A. , 781 F.2d 1067, 1074 (5th Cir. 1986) (en banc).

131 Chandris, Inc. v. Latsis , 515 U.S. 347, 366 (1995).

132 Harbor Tug and Barge Co. v. Papai , 117 S. Ct. 1535, 1542-43 (1997).

133 Id. at 1541 (quoting Chandris, Inc. v. Latsis , 515 U.S. 347, 363 (1995)).

134 Harbor Tug & Barge Co. v. Papai , 117 S. Ct. 1535, 1538 (1997).

135 Ryan v. McKie , 1 BRBS 221, 225 (1974); see also Stubblefield v. Dutra Constr. Co. , 26 BRBS 774, 776 (ALJ) (1993) (noting that the Office of Administrative Law Judges retains subject matter jurisdiction over an injured worker's longshore claim not withstanding a concurrent Jones Act claim based on the same injury).