Antonios Latsis v. Chandris, Inc., Chandris, S.A., Trans Oceanic Shipping Co., Ltd.

he has litigation, but the merits related vexatious technique of other pursued

also against complaints launching new

litigants of dismissing for their actions

judicial officers .¡employed complaints. Sassower prior Judges Chief against two former tactic Moreover, prior

of this Circuit. dismissal warnings repeatedly included have

orders frivolous misconduct filing' additional imposition of restric-

complaints risked

tions. hereby

Accordingly, it Ordered not file subse-

George shall Sassower in this complaints judicial' misconduct

quent such'judi- related to any document

Court or ob- complaints first without

cial misconduct file, Judge leave

taining from the Chief to Sas- directed to return the Clerk is

sower, unfiled, com- any judicial misconduct submitted related thereto

plaint or document accompanied that is not

by Sassower Judge seeking leave of the Chief

application com- granted, file is file. If leave to in the processed,

plaint shall be filed denied',, course; if leave to file.is

normal complain- returned to the

complaint shall be unfiled, shall event Clerk

ant receipt appropriate record

maintain an complaint.

and return of Plaintiff-Appellant, LATSIS,

Antonios INC., Chandris, S.A.,

CHANDRIS, Trans Ltd., Shipping Co.,

Oceanic

Defendants-Appellees. 735; Docket 93-7704.

No. Appeals, Court of

United States Circuit.

Second

Argued Dec. 1993. 24, 1994. March

Decided

Stratakis, counsel), for defendants-appel- lees. OAKES,

Before: KEARSE and CARDAMONE, Judges. OAKES, Judge: Senior Circuit This case causes us to re-examine the defi nition charged of seaman as in Jones Act light opinions cases of two recent Int’l, Court: McDermott Inc. v. 111 S.Ct. Marine, L.Ed.2d 866 and Southwest — Gizoni, U.S. -, Inc. v. (1991) 116 L.Ed.2d 405 (explicating Wilan der). Specifically, we must determine “employment whether related connection navigation” to vessel must be substantial either in plaintiffs terms of the “permanent assignment to the “performance vessel” or part a substantial of his work vessel.” subsidiary question A is whether the district properly court instructed the could period not consider the of time a vessel drydock inwas in determining whether plaintiff performed “a of his that, work on the vessel.” although We find Wilander overrules navigation” the “aid to Salgado element of Rudolph Corp., M.J. (2d Cir.1975), the “more or connection” ar Salgado ticulated in remains the law of this circuit. In ignoring this formulation and adopting formulation, an alternative the dis trict misapplied the law and committed plain error. This error resulted in substan prejudice tial Latsis because the effectively instructed to determine the sub- stantiality Latsis’s connection to the vessel solely on the basis of Latsis’s temporal rela tionship with the prejudice vessel. This compounded by the district court’s further instruction that the time the was in drydock could not be instruc considered —an improperly tion that served to limit the sub- stantiality of Latsis’s connection to the vessel Rosenberg, City Lewis New (Barry York temporal terms of Latsis’s relationship Levy, Shiff, Shapiro, I. Reilly, Rosenberg & with the vessel. We judgment vacate the Fox, counsel), for plaintiff-appellant. the United States District Court for the III, Brady, William J. City York York, New Southern District of New Loretta (Christ Stratakis, Poles, Tublin, Preska, Judge, Patestides & and remand for a new trial. allegations malpractice relate Background I. Gonzalez, unlicensed that Dr. fact Facts A. States, neglected to fol- in the United state action under brought this Antonios medical textbook low the advice of standard damages for compensatory Act for the Jones vessel which read he had on-board the by culmi- Latsis injuries sustained personal suspected a patient “... eye. right sight to his loss of nating in the should be retinal detachment established from injuries allegedly resulted These emergency by ophthal- an an basis on seen failed to ship’s doctor who negligence Bermu- mologist.” reached When vessel retina. detached- promptly Latsis’s treat da, diagnosed eye having a a his as doctor inju- these alleges that he sustained Latsis The doc- of the retina. massive detachment a aboard as a “seaman” employed ries while hospitalization. recommended immediate tor Galileo, the S.S. ship known as then cruise regular eye Latsis’s After a consultation with ships owned and cruise a fleet of one and another New York in New doctor York Inc., Chandris, Chan- appellees by operated sur- the doctors recommended eye specialist, Co., Shipping dris, Trans Oceanic and S.A. Although gical of the retina. reattachment “Chandris”). (hereinafter Ltd. surgery, the end underwent result Latsis from said to have resulted injuries are vision percent of his central that he lost on by ship’s doctor malpractice medical light his on the sides of can see and 14, 1989, Sunday which the Galileo a on May eye. right Baltimore, Maryland, at passengers took presented himself for time Latsis At the trip round cruise regularly-scheduled, for a Bermuda, given a Chan- he treatment noon Around days to Bermuda. of five by ship’s captain, chief signed form dris was still Sunday, while Gonzalez, requesting medical Dr. purser, and assigned to the Latsis, on board and port, for his “de- provided to Latsis attention engi- supervising capacity as a in his Galileo describing [sic, and detached] retina” tected Chandris, a cen- began experiencing for neer holding “posi- “crew member” Latsis as a origi- seemed disturbance which visual tral “supt. engineer.” tion” eye. As the portion of his bottom nate Latsis, in the case indicated Evidence vision to his the obstruction progressed day an- citizen of Greek naturalized American sig- a appreciate the did not Latsis expanded. lifelong involvement with cestry, a has had ap- problem until the time nificance with his en- afternoon, shipping beginning sea and when in the late proached to sail a cadet as try into the Merchant Marine on board guidance from an sought medical he high following graduation his from Germany ship’s him to see who advised nurse ship as school, sailing a merchant aboard pulled ship He did at once. so doctor comple- following successful mate a second of Baltimore. port in the from the dock examinations, and of his studies and Dr. tion hospital, consulted ship Once captain of a being appointed finally with his by Gonzalez, physician employed Chan- Thereafter, he vessel. at Mediterranean Dr. looked small Gonzalez for this vessel. dris He larger-vessel. chief mate and through ophthalmoscope became eye Latsis’s in 1967 to the United States a detached came to him to be appeared said States citizen. a United promptly became that Latsis recommended Gonzalez retina. Francisco with employed in San eye specialist He could see an until he relax continuing his surveyors ship while days in Bermu- firm they two later arrived when University of California care education no medical Latsis received further da. Bache- awarded a Bermuda, Berkeley. In 1973 he was ship arrived in after the until Engi- Mechanical Degree of Science and transport him lor’s attempt was made year later re- Berkeley neering from care means prompt for medical ashore Architec- Degree in Naval Dur- a Master’s vessel, ceived helicopter, otherwise. pilot Industry dur- ture, working in the-Maritime interval, of his vision impairment ing Associa- Marine ing this time for Pacific- vision intensify all central until continued to Oak- Francisco and ports of San in the eye was lost. in the graduation regular two-day land. After he went to New York originating cruise from Ship- returning Baltimore, to work for the having joined American Bureau ping, Shipping ship Friday, and later for Southern Star days there on March two Company superintendent engineer. as a before trip the scheduled to Bermuda supervised oper- eye injury He Southern Star’s vessels’ which his occurred as above stat- years and maintenance for 11 before ations ed. On the trip, Baltimore-Bermuda becoming employed, in 1989 responsible Chandris out was escorting ship- for various Miami, yard personnel of its Florida office. ship around the in connection upcoming with the conversion of the vessel. operated large fleet of mer- Chandris fact, busy people he was with these after vessels, chant five of which sailed from Atlan- problem he first noticed the with the vision ports tic in the United States to the Caribbe- right eye at about Sunday, May noon on an, Bermuda, Puerto Rico. and For the first 14, up sailing until the timé of when he months, employed Latsis was three as a con- finally ship’s went to see the nurse who sent sultant and thereafter became a salaried em- him to Dr. Gonzalez. ployee. any His duties were not confined to single vessel but ran to the According whole fleet. Lat- Kaparis, to Demetrius who was only overseeing Chandris, sis’s duties included not president a senior vice Inc. and and, hence, engineers ship vessels’ aboard head of department its technical and techni- voyages, plan- operations involved a number of but also cal before it was taken over ning directing Cruises, Inc., and Celebrity maintenance at sea Latsis was hired on a necessarily from the shore. While he regular famil- basis as a superintendenVengineer power iarized himself with all of the specific vessels’ with the of supervising work functions, plants engineering and he attended systems electronic ships of their and also repairs in supervising upgrading several hands-on ca- computerized systems and the pacity problems ships computerized and monitored that the communication between the develop. had particularly ships or could He was in and the Chandris Miami office. The charge equipment, of the electronic company both ret- had five superintendenVengineers, existing equipment. rofit and Greece, two in Miami and three in and all of engineering department ships of the and required Latsis’s work him to travel with masters of ships reported Kaparis to for ships various in the fleet from time to time. vessels, technical matters. The Chandris de- conflicting The evidence here was as to how size, pending upon carried between 12 and 14 actually much time he ship, on board engineers board, licensed Kaparis and testifying voy- Latsis himself that he was on supervised vessels, six passenger cruising all ages percent of his time and his immedi- ships customarily calling York, in at New testifying ate boss it was per- more like 10 Boston, Philadelphia, Baltimore, Charleston, family cent. Latsis maintained his and resi- Wilmington, Miami, Usually, and San Juan. York, Rye, although dence in New the com- a vessel port would be in every home about pany provided housing him with and the use days. seven Occasionally, depending on her in a rental car Miami because his office itinerary, ship would return port to home regularly work was there. The vessel on day after two or five cruise. Vessels were sailing which he was and with which he had usually in port home between 9 and hours. more connection than other in vessel ship Each had a superintendenVengineer, 27-year-old Galileo, fleet was the S.S. as it completely responsible, reported who to Ka- known, was then aboard which he had sailed paris directly. No vessels were to from specialists Miami to with Mexico from Latsis taking “because he was care of the Germany plan to for a up- conversion and systems ships,” electronics of the in other grading place Germany scheduled to take in words, reported the whole fleet. Latsis in following year. helped He speci- draw Kaparis. fications keep ship the older in repair sailing while on its cruise Following routes to Mexico surgery recupera- Latsis’s fact, tion, and Nassau in the Bahamas. lasting weeks, he had approximately during six been on board the Galileo at the conclusion of which pay, he received full he resumed his of the to the function “contributed Miami, Sep- performed July, duties accomplishment of the vessels’ or the Bremer- vessel the Galileo to 30 sailed tember operation or or to the maintenance mission placed vessel was haven, Germany, where the or while movements their the vessels vessel drydoek. The conversion trips.” The future anchor for the vessels’ course of which during the job million a $65 in- second element instructed court were plates propeller bottom the vessel’s status had been proving seaman in volved being completed removed, conversion plaintiff met, considering whether and that being renamed March, vessel and the status, “you proved otherwise Latsis, with the has had been who Meridian. in this instance that a vessel drydoek in should 'know it was the entire time single ship ships or a number of abe the United Bremerhaven, back sailed operated by employer.” owned and continued the Meridian aboard States November, until for Chandris work object to these instructions did not with Chandris employment time his however, object, entirety. Latsis did their in- October, 1991. filed Suit terminated. charge “explicitly portion to that juris- subject had matter district peri- jury’s consideration from the takes § under 28 U.S.C. diction drydoek in Galileo was in of time od (1988). § U.S.C.App. in jury a verdict Germany.” The returned Lat- solely the of issue of Chandris favor Proceedings Below B. the pursuant to as a “seaman” sis’s status 1993, 17, the clerk charge to Act. On June days. In the Jones lasted four Trial 15, 1993, July judgment. On a final jury that the entered the told jury, judge the the appeal. This timely notice of filed a of Latsis preponderance prove, a must plaintiff pursuant to 28 U.S.C. jurisdiction elements, has namely, that evidence, four § acting 1291 crew of vessel of a member was is, that employment, of course his jury instructions hold that We now second, that the defen- seaman; he was a the law. application of were an erroneous third, employer; were dants for retrial case therefore remand We agent officer, employee, or or an defendants with this jury in accordance instructions fourth, and, negligent; them was one opinion. bring- played negligence that such plaintiff. As to injury to the ing about the of Review II. Standard element, jury was told the first Normally, will consider we not if plaintiff was a find that the could party to charge if a failed challenge ato found, preponderance by a (“No 51 Fed.R.Civ.P. object at trial. See evidence, things: two or the giving may assign as error party permanently First, plaintiff was either par unless give instruction to failure a sub- performed assigned to to jury retires objects before ty thereto the vessel. work on part of his stantial distinctly the verdict, stating its consider performed determining Mr. Latsis whether grounds of the objected to and matter the ves- part of his work on substantial objec timely Thus, “no objection”). where period sel, may consider you not to the the instruction made was to drydoek in Ger- inwas the Galileo time ... we district court interrogatories she period during that time many, because if dis ‘the ground reverse however, may, You navigation. out was its plain error court committed trict ” from sailing spent consider the time interrogatories.’ Abou-Khadra charge and Also, on this Germany for conversion. Cir.1993) (2d 1071, Mahshie, 1078 4 F.3d v. seaman, do being seamen element first omitted) (footnote (quoting Schaafsma workers, (emphasis land-based include (2d 629, 636 F.2d Corp., Vermont Morin added). Cir.1986)). it results plain “if An error an obvious if it is miscarriage justice, or to, stipulated second element Abou-Khadra, law.” misapplied and duties instance capacity plaintiff’s 1078; Chaleur, 4 F.3d at Air Et operations S.A. v. gravel level off pumped up (2d 489, Cir.1985). Janeway, 757 F.2d 493-94 from river bottom pumped barges onto Although plain even a error will not warrant Act), held to be seamen under the Jones cert. if harmless, reversal it is we will reverse denied, 817, 98 L.Ed. plainly where a misap erroneous instruction (1953); Rackus v. Moore-McCormack plies the law as to a core issue in the case Lines, Inc., (E.D.Pa. F.Supp. resulting prejudice 1949); Robertson, see also David W. A New party challenging the appeal. instruction on Approach Status, to Determining Seaman Schaafsma, 637; 802 F.2d at see Fed. (1985) (the Tex.L.Rev. “Robertson ar Although R.Civ.P. 61. objected to the ticle”). drydock portion instruction, he failed B. The Demise of Navigation” the “Aid to object to the instruction as a whole. We Element —Wilander therefore review Latsis’s claim under the plain error standard. Early on, Circuit, the Fifth in Off Robison, shore Co. v. 779-80

III. Discussion (5th Cir.1959), criticized naviga the “aid to language tion” of the three-pronged A. The test:- Definition of “Seaman” in the Sec- ond Circuit before Wilander Our review of the cases this [aid shows navigation] test has been watered down Prior opin- Court’s recent until the words have lost their natural Gizoni, ions Wilander and this circuit’s meaning.... With due deference to the definition of a “seaman” under the Jones Act Supreme Court, importance we attach less three-pronged: catchphrases to either of these than we do “the vessel must in navigation, be there piled to the cases on cases in which recov- must a more or connec- ery is allowed when stretch the tion with the ship, and the worker must be imagination can be said that the claimant naturally primarily aboard and as an aid to anything had to do with navigation and is a navigation.” member of ship’s the company only in the Salgado, 514 F.2d at 755 (quoting Klarman sense that his duties have a connection Santini, (2d 29, v. 503 F.2d Cir.1974), 33 cert. with the mission or the function of the denied, 1110, 419 785, U.S. 95 S.Ct. 42 floatable structure injured. where he was L.Ed.2d 807 Harney and v. William Id. at question 780 (jury Bldg. M. raised whether Corp., 649, (2d Moore 359 F.2d 654 roughneck as Cir.1966)) drilling member of crew (emphasis was a to distinguish added the working seaman on main prongs). deck of a convenience, For mobile we denominate drilling platform (1) barge resting prongs these on the the in navigation,” “vessel Mexico). (2) bottom of the Gulf of After connection,” (3) the review “substantial and the Supreme of the Court and navigation” “aid to other relevant elements.1 The Second law, case the Robison court very closely test reformulated the followed the test criteria for seaman status: adopted first the First Circuit in Carumbo Cape Co., v. (1st 991, Cod S.S. 123 F.2d 995 there is an evidentiary basis for a Jones Cir.1941) (citations sundry from circuit (1) go Act case to jury: if there is omitted). courts Cases in several cir other injured evidence that the workman was adopted cuits had also essentially the same permanently to a ... vessel See, e.g., test. v. McKie Diamond Marine performed a part of his work Co., 132, 136 (5th Cir.1953) 204 F.2d (defining (2) vessel; the if capacity the “member of a crew” in accordance the with employed which he was or the duties which three-pronged test); Mississippi v. Wilkes performed contributed to the function Co., River Sand & Gravel 388 the vessel or to the accomplishment of (6th Cir.) (laborers employed in dredging mission; its operation or to the or welfare matter, 1. As a minor we note that emphasize Wilander refers To the difference between this ele- to this navigation." element as “aid in element, Other ment and navigation” the "vessel we phrase courts have used the navigation." "aid to phrase navigation.” the use "aid transpor- nance, or welfare operation, maintenance of its in terms the vessel Id. at 1063. of the vessel.” anchorage function tation movement or during its trips. future for its ad Supreme Court Wilander The omitted).2 (footnote Robison, F.2d at 779 the Fifth Cir between dressed conflict “aid to Thus, abandoned Circuit’s Fifth-Circuit and the Seventh test cuit’s Robison law defi- common Wilander, test, at navigation” 498 U.S. element Johnson language in favor 809-10, difference only nition of seaman to one but at S.Ct. extend courts to tendency of the navigation reflected aid to tests —the the two between who do what employees jettisoned status Court The requirement. “the eventually call element, would Supreme Court and an navigation” “aid to at 498 U.S. ship’s work.” See define rule is to “the better nounced at 817. crew” under or member ‘master Compensa Harbor [Longshore the three- Workers from differs test The Robison Act], re- therefore ‘seaman’ under significant other in two pronged test employee’s Act, First, solely test in terms of the Robison Jones however. spects, is, test, návigation.” Wilan to a vessel prong of first dropped the Second, 353, 354, der, at 816-17. S.Ct. navigation” element. at the “vessel observed, more or less rule best “[t]his replaced test Court the Robison The of the test with is consistent prong law explains our case permanent connection interpretation of requirement: Act ‘seaman’ following pre-Jones distinc Congress’ been] have land-based/sea-based injured [must workman 354, 111 at 816-17. ... or at S.Ct. a vessel Id. tion.” assigned permanently write, is not em “It a- substantial continued performed have] Court [must determinative, job that is particular ployee’s on the vessel. his work vessel,” to a employee’s connection but omitted). (footnote Robison, F.2d at key to seaman id., that “[t]he and concluded became test the Robison Eventually, to a employment-related status is See, e.g., Circuit. accepted of the Fifth test 355, 111 navigation.” Id. -in Co., 762 & Chem. Mayronne Mud Balfer 817. Cir.1985). court, (5th This F.2d adopted so doing, the Court In so test. three-pronged however, retained required that as test 755; of the Robison much Bubcella See, F.2d at Salgado, 514 e.g., “ to the function ‘contribute] 967, duties York, seaman’s F.Supp. 971 New 808 City to v. of its accomplishment of to the the vessel or F. of (E.D.N.Y.1992). v. John In Johnson 355, 111 at 498 U.S. 1054, Co., mission.’”' 1062-63 742 F.2d Beasley Constr. Robison, at (quoting 817 denied, at (7th Cir.1984), S.Ct. cert. adopt 779). the Robison did not The Court the 328 L.Ed.2d 84 cited, Indeed, Court entirety. the in its the test highlight attempted to Seventh arti- Robertson approval, the apparent tests, focussing with two the between difference of the Robison for revision which called three- cle prong the navigation” the “aid to on in the at sea test, who work stating “[a]ll contribution significant and the pronged test perils particular ship face those Reasoning that service Robison test. aspect of the law, stat- maritime protection which the Ro- aspect the contribution significant the decisional, Id. is directed.” as utory as well broad,” Cir the “too test Seventh bison was below, Court the fully more we discuss As for seaman yet test adopted another cuit departure from Robison’s not follow per did “more or less combining the status —one Salgado. navigation” element “vessel in navi the “vessel connection” and manent language, “[t]he contrary, the Court’s three-pronged test On gation” elements employment-related is status key to seaman injured person “the and a id. navigation,” a vessel in mainte- connection significant contribution made a test. in this jury again instructions 2. We note upon Robison substantially based are case added),

(emphasis confirms that this element LHWCA be nevertheless a seaman important part remains an of the definition within meaning Act, of the Jones at least Also, a seaman. the Court expressly where the noted harbor worker is also a “member that, are upon vessel,” “[w]e called of a not here to crew of define explained — this Further, connection in all details.” Wilander. -, Id. at U.S. Gizoni the Court in Wilander did S.Ct. at 491. not state that The quoted Gizoni Court Wil “ employment-related ander in saying that key connection to ‘[t]he a vessel to seaman was a complete status is employment-related definition of seaman. See id. connection to a navigation.... U.S. at It is not (stating necessary 817-18 “we hold seaman necessary navigation that a aid element of the contribute to the transportation vessel, connection is that a perform seaman but ” vessel”) work seaman must added). doing of a (emphasis ship’s work.’ Id. — U.S. -, Court (quoting Wilander, at 492 offered no indication as to whether the 817). U.S. substantiality S.Ct. at No connection mention is must still be made in or, either so, Wilander if or Gizoni of established whether it would be “permanent language connection” pursuant determined to the “more Ro- or less case. bison permanent connection” element of the “John- (as son test” well as the three-pronged Sal- ease,.there In this is question test) gado pursuant to the language of the that Latsis at the time injury, of his was two-part Robison test. connected to a vessel in navigation, that his .employment-related, and that C. The “Substantial Connection” Element at least at the time of injury he was after Wilander “doing ship’s work,” namely, acting aas above, supervising As engineer discussed board the vessel. In Court fact, Wilander it is precisely did not part determine under this jury what cir- charge an employment cumstances to which stipulated. related Chandris connec- tion with a Whether vessel in this navigation substantial, would be however, sufficiently dispute. qualify In charging a plaintiff for clear, question, seaman status. however, It is the district ap pears the Court express adopted did not to have preference language for from the two-part test, criteria contained in instructing Robison Robison test. unclear, Left therefore, that to find just they what sort of must find connection will amount that: to a substantial con- Indeed,

nection. the Supreme First, . Court plaintiff did was either permanently recognize, even much less resolve the conflict to a vessel or performed a sub- between the criteria used determine sub- stantial of his work on the vessel. stantial connection under the Robison test Robison, (“the 266 F.2d at injured and those used under the Johnson and Sal- [must workman have been] perma- gado Again tests. above, as noted Court nently to a vessel ... or [must per- have] limited its holding to navigation” the “aid to formed a part substantial of his work on the element of test, the three-prong concluding vessel.”) (footnote omitted). disap- Absent key “[t]he to employ- seaman status is proval by Court, Supreme the “more or ment-related connection to a naviga- vessel in permanent connection” formulation of tion,” but declined “to define this connection the substantial connection requirement re- in all 355, details.” 498 U.S. at 111 mains the law Therefore, of this circuit. it 817. plain error for the district ig- court to nore this and adopt Nor formulation does the the formula- opinion Court’s tion the Fifth' Gizoni Circuit in much guidance offer Robison. way what constitutes a substantial connection. In The formulation of substantial connection decided after the Court by Gizoni followed Salgado this circuit in quite is held that a maritime occupa- worker whose different from that followed the Fifth tion' is one of those enumerated in the Circuit in Robison. The perma- or less more

53 observed, two earlier deci Salgado, quoting Salgado test element connection nent only required sions, Harney, and Klarman concept. Under temporal merely a not is permanent or less a “more plaintiff have element connection the substantial Salgado, Salgado, 514 F.2d ship.” with the connection or less a there is “more where is satisfied added). court Klar See, (emphasis The 755 ship.” with connection permanent connec permanent (internal that the had noted quota- man 755 F.2d at Salgado, 514 e.g., strictly not been read requirement has omitted). expanded cases Later tion marks must be more that the connection in- but meant to element connection” the “substantial Klarman, transitory.” “temporary or than particular just to one not clude connections v. (quoting Bullis Twentieth at 33 503 F.2d- group of vessels.3 identifiable to an ship, but 392, Corp., 474 F.2d 394 Pace, Century-Fox Film F.2d 378 Towing v.Co. Magnolia Cir.1973) (9th curiam) (“Significantly, connection Cir.1967) con- (5th (pilot (per 12, 13 permanent, but may less than be tugboats cannot.be of defendant’s several nected with Harney, transitory”)). or temporary Ave. seaman); v. Jackson held Braniff decide, noted, (5th not but did 523, Inc., 528 F.2d Ferry, 280 -Gretna in requirement Cir.1960) mechanic a master (holding that who, though employees “shore-based clude all mainte performed who an assistant aboard, spend less than coming regularly several nance, work on and overhaul repair Harney, F.2d at 654. 359 full shift-there.” ferries, ferries often while of defendant’s seamen); see also could be - operating, were case, men not An earlier Second Co., 640 F.2d Oil Guidry v. Continental Glasser, sup even more by Judge tioned Cir.) (5th (“relationship between n. in Buccellato portive of his conclusions or an identifiable vessel the individual un not does law this Circuit “the case point must substantial group vessels to be Act seaman require a equivocally Jones added), (emphasis time, spasmodic”) not group or to a vessel substantially connected denied, 454 U.S. cert. being to to connected opposed as of vessels Co., (1981); Rotolo Halliburton L.Ed.2d 87 steady basis.” group of vessels on vessel Cir.) (5th (injured person 9, 12-13 Buccellato, 972. That is F.Supp. at performed a assigned to or been must have New v. Cent. R.R. of Weiss case Co. of particular on “a of his work Cir.1956). There, (2d Jersey, 235 F.2d vessels.”) (citing specified or several 19-day in the course plaintiff who denied, 852, 84 S.Ct. Braniff), cert. ferry days on worked seven employment (1963).4 L.Ed.2d 79 six on or wheelsman as a boats deckhand as a door employed shore days Judge in Buccel- other pointed out Glasser As jobs connected bridgeman, man lato, the substantial ferries, was held departure docking by the courts this interpreted has not been noted The court Act seaman. Buccel Jones temporal sense. narrow circuit in a were the factors claim against his weighing Judge Glasser lato, F.Supp. As at 972. also that note "assignment” to a vessel. We as “The to rule article refers 3. Robertson test, Test,” question, referred charge 64 Tex. like the Robison Robison 'Fleet Amendment' "connection,” and suggest fleet "assignment” goes rather than 96. It L.Rev. at problem" particularly doctrinal con present might an "obvious cases have been this sense vessel, "[¡Involvement single with a "as jury' because fusing because vessels, the most was one of opposed multiple temporarily except signed” to S.S. Galileo sea- the between traditional obvious distinctions responsible Rather, he was time. time to from longshoreman.” Id. the traditional man and long has been it as to which a fleet of vessels for propo-. support of the 98. We these cases cite See, e.g., Gui may person be a seaman. a held although person be a "seaman” a can sition that the instruc It is that dry, at 529. true 640 F.2d vessel, particular but assigned a he was could be say "vessel” go did on to that tion here a or with vessels with several rather connected ships owned single ship a number of or a permanency to the do not adhere fleet. We requirement employer, to that extent by so operated the these cases. But into account. Amendment” took "Fleet charge not make the caveat did this we last test that both 4. We underscore confusing. Supreme Court’s Salgado explicated in rather than speak "connection” test Wilander (citations omitted). employed ship that he was only aboard a for Through subsequent ap- time, period during short period plications test, however, of this the Fifth slept ashore, he and ate most of his meals clearly expressed its view that sub- paid hourly wage that he was an and worked stantial connection temporal is a concept to for part eight-hour day, the most an that he be determined puta- of the duration employed part jobs for of the time on tive seaman’s connection to the vessel. Bar- ashore, working that he was Chevron, on an U.S.A., Inc., extra-man rett v. 781 F.2d regular basis,' (5th rather on a Cir.1986) (en than and that he banc); 1074-75 Longmire papers. had no seaman’s 235 F.2d at 311. Drilling Corp., v. Sea 610 F.2d 1347 & Further, (5th Weiss Bailey City Cir.1980).6. Court cited v. n. 6 York, New F.Supp. (S.D.N.Y.1944), By adopting the Robison test for a sub- (2d affirmed, Cir.1946), 153 F.2d 427 connection, stantial district limited ferry engineer held that a boat who worked a jury’s consideration temporal to Latsis’s regular eight-hour day slept at home relation to the vessel. substantially This seaman, a as was a similar dredge land-based prejudiced Latsis. jury Had the not been employee York, in Pariser City New instructed to determine whether Latsis’s con- (2d Cir.1945). Weiss, F.2d 431 235 F.2d tribution to the vessel was substantial at 3132.5 temporal “permanent terms of a assignment” Salgado Unlike the formulation of the sub- having performed a part substantial of his stantial requirement, the lan- vessel, work aboard the jury could well guage of the Robison test frames the sub- have found Latsis to be jury a seaman. A stantial connection primarily, issue if not could find that he did have substantial solely, temporal Specifically, terms. connection with the though may vessels he provides Robison test that: not have been on ship great board percent- evidentiary there an basis for a Jones age of his time because specific did go Act case to jury to the ... if there is work supervising systems electronics injured evidence workman was ships, of the upgrading computerized their assigned permanently ato ... or systems, dealing with computerized performed a substantial of his work ships communication between the and office. on the vessel. Thus, could have found Robison, (footnote omitted). 266 F.2d at 779 though even Latsis’s work did not Early applying cases recognized test “permanent involve assignment” to a vessel ‘permanent’ “the word has never been or to a fleet take, of vessels and if even we assigned interpretation a literal under might taken, have Kaparis’s testimo- Jones Act and should given not be ny a “wooden that Latsis was ships on board only 10 application,’ rather, but is to be used percent as an of the time at face value. We there- analytical starting point instead of a self- fore hold that the district court’s instruction executing Guidry, formula.” 640 F.2d at erroneously applied the law of this circuit dissent, Judge Nygaard, 5. has plaintiff's] member, made a non, [a similar status as a crew vel observation in the Third Circuit. should be sitory considering Evans v. determined United the tran- Co., Shipping (3d Arab assignment, duration fixed term 207 at 220-21 it, Cir.1993) during nature his duties (Nygaard, ("under dissenting) Third relationship of those duties to the mission of Circuit law the connection factor is Thus, the vessel. might a fact finder find that temporal relationship not a any particular assigned anchor handler who is to work on ship, employment-related but is and focuses in- specific period days vessel for is a crew stead on the nature of the they worker's duties as member assignment. A worker ship relate ship's and the mission at the may also be to work as a crew mem- injury"). time ber for voyages a series of of limited dura- assignment tion. ... An to work as a crew dissenting opinion. Rubin, 6. Judge In a joined by member, vessel, voyage like the of a judges, five majority's other took issue with the brief, and the applicable Robison test is interpretation narrow of the substantial connec- deciding during any the worker's status such purely temporal concept. as employment. Judge Barrett, Rubin wrote: (Rubin, J., 781 at 1077 dissenting). F.2d

55 fact, his the sea—in perils of him to the claim— of Latsis’s element a core regarding in the peril of such injury was the result Latsis. prejudice of the substantial to very is a seaman while on board sense (cid:127) “Drydock Instruction” D. The in the care upon and reliant much unquali- physician is If ship’s physician. court’s district to the now turnWe malpractice, it is in medical engages fied or above, the noted As instruction.” “drydock' mariner on board peril to the just as much jury: the instructed court district hurricane, wave, gale or the as the killer per- determining whether Mr. In every calling. Not dangers of the other work on part of his a substantial formed exposed to a vessel is with worker connected period the vessel, may not consider you the sea, the con- however. On perils of the the in drydock in Ger- was time the Galileo of in to a “vessel only trary, workers connected period she time during that many, because ” if the ex- exposed are so navigation —even navigation. of out inju- an nothing more than in posure results to court seems instructing, the district In so See driving to the vessel. while ry sustained prong of old third injected the have element, navigation” in The “vessel id. into the navigation,” in Salgado test —“vessel substantiality of therefore, not limit does find requirement. We connection a vessel. with employee’s connection an emphasized further instruction this element Rather, navigation” in the “vessel temporal putative seaman’s to those status designed to limit seaman confusing the risk vessel at regularly exposes them employment whose the Jones underlying policy of frustrating the sea. hazards Act. of the Jones the enactment before Even upon case which nóte that We Hand, extending 1920, Learned Act relied, instructing evidently district on board bartender status seaman considering the substantial jury that in principle “in vessel, there is remarked discount should element an artificial why there should no reason Meridian, formerly the during which the time engaged to those rights Germany, limitation Galileo, drydock in inwas S.S. ship, to exclusion navigation of the inwas the vessel while an accident involved purposes further the equally who others hence, navigation. See and, not in drydock Warden, 175 F. voyage.” The J.S. Inc., her 980 Seafoods, McKinley v. All Alaskan words (S.D.N.Y.1910). Judge Hand’s Cir.1992). (9th McKinley 567, 569-70 F.2d Act, com- the Jones spirit of capture the ship holding as may properly be read injured in the course work those pensate conversion, the ves- complete as undergoing in n the sea: This perils exposing them to case, out of a vessel takes sel navigation” in the “vessel captured States, spirit is v. United navigation. See West Moreover, this element 189, 192, element. 4 L.Ed.2d U.S. has survived seaman for three-pronged test curiam) (non-Jones case (1959) Act (per at U.S. Wilander. while warranty of seaworthiness finding (“the key to seaman 817-18 re- major undergoing structural vessel was connection to employment-related is necessarily status mean does not But this pairs). added). (emphasis navigation”) under- a vessel time that the count towards cannot going conversion “perils of the sea” interpreted have Courts con- employment-related substantiality of recover un- only may seamen broadly. Not During course with the vessel. traditionally nection injuries Act for the Jones der Chandris —omit- employment with boom, a of Latsis’s swinging the sea —a associated approximate- consulting time —from ting may recover for ship seamen sinking —but his termination ly until March by land- commonly experienced more injuries months November, 1990, spent some six Pace, See, e.g., employees. based week, on board days a working seven injured in for (recovery allowed project vessel). vessel, supervising the en route while automobile accident drydocking, architect, including the' naval did case, employment expose Latsis’s removal, cleaning bottom and removal of previously pilot] “concluded that [the was not propellers, overhauling engines, the main re- a seaman because he was permanently not boilers, building the reconstructing particular to any vessel or fleet of spaces public accommodation rooms. Co., Inc., vessels.” Bach v. Trident S.S. Why (5th this time should not count in terms of F.2d Cir.1991), cert. de — determining substantiality nied, of his -, connec- U.S. vessels, tion to the (1992). Chandris we do not know. L.Ed.2d 592 Judge again Brown dis express opinion While we no sented, as to whether stating “although Wilander Latsis would have been covered had he been out turns guide,” to be the decisive what injured while the vessel was in drydoek in say it does affords support” “undeniable Bremerhaven, suggest we do that in terms of the views he had set forth in his initial meeting any requirement of Bach, connection to the dissent. (Brown, J., 947 F.2d at 1291 vessels, vessel or this time can dissenting). addition, count. quoted the Wil-

ander case extensively may and we read him IV. saying CONCLUSION at least in the pilot case of a unique and his status as a seagoing function Although Salgado’s formulation of the sub- ary, requirement “permanency” set stantial connection element remains the law forth various cases as the test of this Gizoni, circuit after Wilander and we simply is longer effect, of force and clarify think it useful to this formulation in least in temporal sense. light of Wilander and Gizoni. Such clarifica- tion is all pressing by made the more The the fact requirement connection although Wilander and has purposes. First, Gizoni left two Sal- requiring a gado’s formulation of the substantial “more or permanent connec- less awith ” intact, Supreme vessels, Court with a fleet of it excludes jettison in those cases did aspect— another from Jones Act seaman status workers navigation the aid to element —of that test. whose work bring them into contact many vessels but who are not connected important Clarification is considering also with any particular vessel or identifiable that the Fifth Circuit has continued to ad group of vessels. Through exclusion, here to interpretation narrow its of the sub substantial connection element leaves work- stantial requirement. In Bach v. with no ers connection to a particular vessel Inc., Trident Steamship Company, or group of coverage vessels to under the (5th Cir.), vacated, Longshore and Harbor Compensa- Workers’ 2253, 114 L.Ed.2d 706 two mem (LHWCA) tion Act which “seaman” —from panel bers of the held compulsory that a pilot or, precisely, more “a master or member of a was not a seaman because he was not con crew vessel” are themselves excluded. nected to a vessel or an identifiable fleet of (1988). § 33 U.S.C. seq. Second, 901 et vessels, and refused to find an exception in requiring a “more or permanent connec- favor of a maritime worker spends who virtu tion with a vessels, vessel” or fleet of ally all of his time performing traditional excludes from coverage those whose contri- seaman’s closely duties —work related bution, limited, although single to a vessel or movement of does his vessels —but work on vessels, fleet of nevertheless a tem- short voyages large aboard a number of ves porary or transitory connection with the ves- sels. Judge dissented, Brown stating that Klarman, sel. See 503 F.2d at (putative- Congress not mean did to exclude from the seaman’s connection must be more than protection of the Jones compulsory Act pilots “temporary or transitory”). while in directing aboard navigation of a Bach, vessel. 920 F.2d at 327-33 It seems much of the confusion sur- (Brown, J., dissenting). rounding Court or less “more connec- vacated opinion and remanded for recon tion with a language vessel” is attributable to light sideration in of Wilander. 500 U.S. fact language designed 949, 111 S.Ct. at panel 2253. The majority perform two i.e., exclude two dif- functions — decision, reinstated its holding it had types ferent of workers from seaman status. (b) Indeed, Buccellato, F.Supp. considering at 972. and nature. In whether the putative narrowly seaman’s contribution is adherence to a substantial the Fifth Circuit’s duration, jury may in of assignment require- its consid- interpreted permanent terms frequency Supreme er the number and of similar criticized con- ment has been tributions to or essentially that vessel to an identifiable Court of Louisiana Further, Int'l, considering fleet of vessels. in Atlas ground. Folse v. W. Inc./Down (La.1992). whether the contribution Servs., is substantial in 593 So.2d 341 hole Seismic nature, jury may.consider terms of its Folse, plaintiff had been held In of spent time and effort ashore amount Appeal not be a sea Louisiana Court of contribution, preparing for the as well as the permanently not at- man because he was spent drydoek amount and and effort in time specific vessel or an identifiable tached to a consummating the contribution. v. Atlas fleet of vessels. See Folse W. Int'l Inc., Cir.1991), (La.App. 4th 580 So.2d We reiterate that after and Wilander (La.1992). rev’d, reversing, 593 So.2d the test of seaman Gizoni status under the of Louisiana discussed Court employment-related Jones Act is an connec language permanent attachment of Robi- navigation. a in tion to The test will Bach, saying require that “[t]his son and (1) plain where a finds that met distinguish designed to between ment was of, helped tiff contributed to function or transitory, employees and those land-based (2) of, vessel; accomplish the mission voyage.” working aboard a vessel for plaintiffs par contribution limited article). (citing at 343 the Robertson So.2d vessels; group ticular vessel or identifiable majority pointed did out Wilander (3) plaintiffs contribution was substantial permanent more or attach not mention less (a) (b) nature; in terms of its duration or vessels,7 and that ment to a vessel fleet (4) plaintiffs employment the course of the require further doubt on this Gizoni cast regularly exposed plaintiff to the hazards “only plat Gizoni ‘rode’ the ment because of the sea. working forms hours.” Id. The Lou case, foregoing In this the first of the say isiana court went on to that Folse was second, stipulated criteria was to. As to the providing worker shore ser not land-based dispute in there is no the evidence and the rather a vices to docked vessels but seaman accordingly verdict should be directed. The voyages specific who went to sea on short substantiality third —the element —is not merely transitory employ was not and who dispute, but the evidence is not clear say although ee. The court went on to as to what extent Latsis’s land-based assignment less transient than Folse’s (3)(b). Therefore, drydoek work bore we Bach’s, Rather, permanent. “[i]t not court to instruc- instruct the trial frame its given involved substantial work on missions.” light to' the tions Wilander Id.8 opinions and other cases and above Gizoni to, assignment much referred terms of to a find that could be We confusion but, requiring permanency rath- by breaking vessel or as alleviated down “more er, employment-related lan in terms of the con- permanent connection with vessel” Thus, jury also guage separate nection to the Chandris fleet. The into two elements. determining requirement is met should be instructed substantial putative establishes an what is “substantial” duration where the terms (1) Latsis’s contribution to the vessel or fleet employment-related contribution that vessels, frequency of single group of vessels the number and simi- limited to a vessel or (2) (a) may be into account. in terms of its duration lar contributions taken Latsis, Dennis, majori- except concurring is true of that on shore 7. Justice in the Folse 8. The same ty, suggested directly "that the Robison involved with the electronic Latsis was great- attachment is subsumed in the equipment the Chandris communications qualify er definition of Wilander that to as a fleet, surely importance to their of considerable seaman, employee must contribute to the navigation. (Dennis, function of a 593 So.2d at 344 vessel.” J., concurring). also be instructed Further, jury should America, Appellee, determining is “substantial” what STATES of UNITED contribution, Latsis’s the nature

terms of be tak- preparation should on-shore Latsis’s' ARBOLEDA, Defendant, Durvan account, time Latsis as well as the en into Bremerhaven, Germany drydock spent Gil as known as John Wenzel Juan Finally, contribution. consummating his Pedro, Peter and Hector as known as instructed to determine also should Areanas-Posada, Defendants- DeJesus employment of Latsis’s course whether the Appellants. him to the hazards of the exposed regularly 276, 277 and Dockets 93- Nos. matters, proof of these to the sea. As 1234, 93-1237 and 93-1239. has the burden. of course putative Appeals, United States Court vacated, case remanded for re- Judgment Second Circuit. jury in accor- instructions trial with opinion. with this dance Argued Nov. 1993. March 1994. Decided KEARSE, dissenting: Judge, Denying Rehearing 1994. Order June respectfully I dissent. four artic- Though agree that the criteria I majority ante at 57 should by the

ulated of whether em-

govern the determination meaning of within the

ployee a “seaman” Act, that formulation I under

the Jones even non-dry-dock part unpersuaded

am that the instructions, which

of the district court’s objection, “plain” constituted

Latsis made Further, unpersuaded I am that the

error. instructing judge

district erred

that, determining plaintiff whether Latsis seaman, disregard period

was a should dry the Galileo was dock. “ ” concept con- Act ‘seaman’ Jones tains a distinction.” “land-based/sea-based International, Inc. v.

McDermott 807, 817, 337, 354, 111 (1991). , The 65 million-dollar

L.Ed.2d 866

dry-dock and reconstruction of conversion unquestionably a land-based

the Galileo view, my of the instruc

activity. In object only part to which

tions —the

ed—was correct. my

Accordingly, since view to which Latsis

portion of the instructions erroneous, and since the

objected was not instructions did not consti-

remainder- of the error, I would affirm. plain

tute

Case Details

Case Name: Antonios Latsis v. Chandris, Inc., Chandris, S.A., Trans Oceanic Shipping Co., Ltd.

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 24, 1994

Citation: 20 F.3d 45

Docket Number: 735; Docket 93-7704

Court Abbreviation: 2d Cir.