Lawrence Whittington v. Sewer Construction Company, Inc.

discretion, true, being tutional manner. That in the exercise difference hearing.12 previously a further since it has been decided Lin- require decline we are not County coln that counties immune AFFIRMED. Amendment, Eleventh from suit under the (than reasoning Bradley) other (concurring): WIDENER, Judge Circuit support the decision reached necessary in the result reached in the concur 14(e), 19737(e), here is U.S.C. § § reasons set forth for the majority opinion Voting Rights specifically allows below. just attorneys’ prevailing party fees to the case, the merits of the instant “any voting guaran- action” to enforce the such, and, as appealed were not dispute involved here. tees so, I am of This final. judgment mind, although this in I am not in With decision Supreme Court’s opinion many with or all of the statements accord Board, 416 U.S. Bradley v. Richmond School majority opinion, I do not think made in the (1974), is 40 L.Ed.2d 476 696, 94 S.Ct. case, anything to the a dissent would add There, had before the Court controlling. they are dicta. But I especially because of an award of propriety question of subject noting not leave the without should authorizing a statute attorneys’ fees under disagreement sug- with the my particular during pendency adopted award Congress may gestion opinion fees. seeking to recover such action of an the Eleventh application limit by the Court: As stated courts, for the not Con- Amendment. It is viewed, then, is question, properly “The gress, say how the Constitution should relating propriety to the simply one Madison, Marbury v. 1 Cranch apply. statute application of retroactive [the 2 L.Ed. 60 to services ren- allowing attorneys’ fees] enactment, rather, its but prior to dered of that relating applicability to the

one propriety where the to situation

section pending resolution on

of a fee award the statute became law.”

appeal when at 2015. at injustice statutory

Barring any manifest contrary, the Court conclud- directive WHITTINGTON, Appellant, Lawrence apply is to the law in effect ed that “a court the time it renders its decision.” at Thus, al- at 2016. COMPANY, SEWER CONSTRUCTION ruling court’s though the district INC., Appellee. may matter now before us merits of the No. 74-1234. the time it erroneous have been rendered, us, is closed to its reconsideration Appeals, United Court of States by Brad- opinion am of we are bound and I Fourth Circuit. 19737(e), 14(e), 42 ley apply U.S.C. § so Voting Rights amendments Sept. the 1975 Argued attorneys’ the award of fees. as to sustain 12, 1976. May Decided Young, parte Ex Since L.Ed. 714 affirmative require public has available to relief been duties in a consti- perform their

officials proper carefully Judge percent to act believed Blatt also exercised his dis- because he amount, arriving respect dealing conservatively at the with the disburse- cretion when $5,000 figure public award. He reduced the sub- funds. ment attorneys by by Lytle’s more than 60 mitted

429 Charleston, Maroney, Va.,W.

Thomas P. appellant. Bias, Jr., Charleston, Henry W. Va. C. Bias, Charleston, Va., Light W. (Lively, & brief), appellee. HAYNSWORTH, Judge, Chief Before BOREMAN, Judge, Circuit Senior WIDENER, Judge. Circuit BOREMAN, Judge: Circuit Senior defendant, Con- On motion of Sewer (hereafter Compa- Inc. Company, struction defendant), the district court dis- ny or admi- missed this suit for lack asserted jurisdiction. judgment ralty From Whitting- plaintiff, dismissal the Lawrence (hereafter Whittington plaintiff), ton appeal. prosecutes counts, containing two complaint, Whittington alleged jurisdiction that the under and virtue the district court arises jurisdiction and maritime States; of the district courts of the United or maritime claim that this is 9(h) meaning within the of Rule Procedure; that the Federal Rules of Civil under possession and defendant had in its was in barge its control certain waterways of the navigation the inland is, River in States, on the Elk United that at Virginia; County, West Kanawha complaint all times mentioned barge by the on said plaintiff work of a deck- defendant, “performing seaman”; while the hand and barge crew of said was a member of the River, the terri- Elk within working on the the district the hole torial court as an between a bridge pier and the river in connection with bank. As bridge “able-bodied seaman was dismantled some tasks,” steel, decking, concrete, the defendant of the wood assigned duties portions negligent in that the structure be- were loaded into to be later ing away. lowered from an overhead towed and, lowered, said so In his opening brief stated plaintiff fell into said and was there- involved in the ease as follows: injured. by seriously In the second count Did the Court err in ruling, as a matter Whittington alleged that because of his in- law, that the was not a sea juries duty it became the of the defendant man, and, therefore, the Court did not prompt to furnish the with medical under Admiralty * care, and medicine attention and “the ex- Maritime Laws of the United States? penses of his maintenances and cure.” [sic] In his statement of the case he asserts complaint concluded a demand for complaint his brief that he filed his alleging $150,000 $10,000 injuries, the sum of for seaman, that, such, that he was a as cure, maintenance and court costs and at- was entitled to recover under the admiralty fees, torneys’ by and a jury. trial laws of the United States for sus- defendant, filing After an answer the by by negligence tained caused the of his em- court, leave of filed an amended answer ployer and the unseaworthiness of the ves- alleging, pertinent part, that the district assigned.” Further, sel “which he was he jurisdiction; plain- court was without alleges that on day the he was “he complaint tiff’s fails to state a cause of performing was the work of a deckhand upon granted; action which relief ABL358”; could be Barge and seaman on that the and that is barred from recovery negligent, defendant was and that the by virtue Compensation of Workmen’s unseaworthy, or vessel was and that statute of the Virginia. State West The provide defendant failed proper to denied, generally, defendant the material ingress egress; methods of allegations complaint, of the both in question counts of whether was a seaman, upon plaintiff 1 and and called or doing for strict the work of a proof. the time of question was a fact by jury, to be determined and not a The defendant Whittington’s took dis- question of law to be determined and, covery deposition at the time it moved court. jurisdiction, for dismissal for lack of The sole here is the very narrow discovery deposi- defendant moved that the one admiralty jurisdiction of the of the part tion be made a of the record and the district court. undisputed factual dis- accomplished motion to This dismiss. was closures lead us to conclude that this con- by a formal order. troversy not within the district court’s Whittington At the time was he admiralty jurisdiction. Consequently, we years employer, was 47 or 48 old. His judgment affirm the dismissing the suit. defendant, engaged was in the demolition Turning discovery deposition of bridge spanned the Elk River in Whittington, glean we from the questions County, Virginia, Kanawha West and one asked and his answers thereto certain facts section near the east bank of the river had which will following be shown in the four In that partially collapsed. section a hole paragraphs. approximately square twelve feet had been bridge flooring cut in open and an At various times twenty- and for about years was moored the water underneath one of his adult life he had worked as * discovery deposition The case was decided the district court of counsel and the of the granting deposition the defendant’s motion to dismiss himself which was made a jurisdiction. lack of The court based its con- of the record formal order without briefs, pleadings, arguments objection. clusion the choker line. In operator preparing for different to lowered crane

an overhead he manufacturing plants standing and he had labored at was east side the hole bridge including seasonal work for and a short distance under- jobs, different there with a Virginia Department. flange neath was a steel beam Highway the West bridge on which across it went below he the defendant employed by When flooring. one flange He had foot on the operator” on a crane and backhoe hired “as beam foot put other job. Whittington bridge demolition free, eye of the choker which was swinging approximately a crane for two checked out to preparing barge. descend into the He went work for the hours when first had descended about five feet when the put and then he was defendant against hook on the end of the rubbed cable jack hammer operating pick, shovel piece of steel. As described bridge deck. tearing up the concrete it, down, as I going trying “Well bridge intact end of the west push myself flange bridge, off gained bridge access to the workmen caught the flange bridge hook possible end it was from that drive eye and rubbed the choker off—rubbed the help carry away trucks out on hook, just off is all. fell the rest Referring to the hole in the the debris. way.” A workman was on top of bridge flooring Whittington stated “You push out whipline so that dropped through truck could have down plaintiff could descend into the barge but you up.” if had backed apparently pushed the line was not out far There was a the river under- enough flange avoid the of the steel bridge which neath the hole in the was for injured beam. Plaintiff was when he land- “hauling away” the disman- purpose the ed on the debris and dismantled materials bridge portions. the was tled Stationed already placed which had been barge. in the equipped a motored winch with drum and the his deposition Whitting- Near end of line, running from the a cable line drum ton stated that when he was he pulley superstructure on the through supposed was to have been the skilled lowering bridge which was used for bridge, “operator,” craftsman on the an but through bridge materials the hole in effect, up, he doing wound laborer work barge. There was a hook on the into the which was what most the other men on day end the cable and on the before job did. was demolition He asked the injured plaintiff was he and another work- time, question whether, any he con- were, turn, through man lowered sidered himself an able-bodied seaman. He hole into the means was his not to instructed counsel answer. they cable so could detach of the whether, He was asked at any further time cable On that materials from the hook. from the he was until time hired he was he Whittington thought worked occasion injured, he was understood that he to work day.” as half of On the there as much “a such, on a boat as and again his counsel day was following directed objected. concluded, deposition His how- means, go barge again by the same into the ever, interrogation by with his own counsel with riding cable down a “choker on questions. answers His counsel explained end.” As the chok- —“A day asked whether he understood' end, two eyes er is cable with a steel other; day before he and the on which one in the one in one end and he was that he was to work on loops.” would be two The choker was he day answered “The long; feet before —I piece steel cable about five phrase way: day I put foot the will On before and he stated that he his hurt, choker, got upper loop Gary Backland come me and loop lower of the said, ‘Larry, need a they guy on the work down fastened to hook end said, cable, grasped barge.’ right; the cable ‘All I don’t the winch’s ” hook, top line above the end of mind.’ above 432 inju jurisdictional to recover for time nexus. For who seeks purposes

One we jurisdic upon admiralty place in a suit based must look to the ries where the incident (1) injuries occurred must show tion occurred which ultimately gave rise to the and had a maritime upon navigable waters Son, cause of action. T. Smith & Inc. v. nexus, injuries were caused (2) that or Taylor, 276 U.S. 72 L.Ed. navigable ap waters or an by a vessel in (1928);1 Hastings Mann, 520 vessel, (3) purtenance (4 1965).2 910 In the instant case the seaman, a member of person injured was a tortious plaintiff’s act which caused the in- vessel, injured in the course of crew of a juries occurred while he suspended v. Marra employment. See Swanson from the shore-based winch. There is no 1, 4-5, Brothers, Inc., allegation of negligence respect (1946); Executive Jet Avia 90 L.Ed. 1045 barge. The alleged tortious conduct in- Cleveland, tion, Inc. v. volved the shore-based winch and its at- (1972); Admiralty Ex 34 L.Ed.2d tached “choker.” Since accident was 740; Moore, 7A J. tension U.S.C. “initiated” while the Practice, 2nd Ed. Federal ¶.325[4] extension of the land3 and involved only p. equipment conduct, shore-based no ad- miralty jurisdiction May exists. See Whittington’s inju clear that It is Service, Inc., F.Supp. (E.D. Lease qualify ground under the first ries do not La.), curiam, injuries occurring per aff’d admiralty jurisdiction (5 F.2d 915 having 1973).4 upon navigable waters and a mari- The mere fortuitous circumstance Son, Taylor, awash, slipped 1. In T. Smith & Inc. v. ramp, when he and fell on the 72 L.Ed. 520 does not alter the nature and character of the decedent, stevedore, plaintiff’s while unload- ramp enlarge Admiralty’s jurisdiction ing ship sling ship- was struck damages occurring upon award it.” winch, pier based which knocked him from the (footnote omitted). Id. at 912 standing dropped apron on which he was where he drowned. him into Although waters loop had one foot found the deceased was the Court “choker” of the shore-based winch when the work, engaged in maritime admiralty jurisdiction existed since it concluded that no jurisdictional purposes, accident occurred. For “[tjhe sub- a shore-based winch is treated as an extension stance and consummation of the occurrence part land not as a of the vessel gave to the cause of action took which place rise which it services. See McCullum v. United 182, 48 at 229. The on land.” Id. S.Ct. Corp., (9 1974); Snydor Int’l 493 F.2d 501 Cir. Admiralty subsequent passage of the Extension Compania v. Villain Fassio et & Int’l Di Genova 740, appear would to have 46 U.S.C. Naviagaione, S.P.A., Societa Reunite Di 459 injury that where the modified the rule of case (4 1972). F.2d 365 vessel, but, appurtenance caused an is where, us, injury as in the case now before equipment similarity the rule is There is a remarkable is caused unchanged shore-based between the “gave May that when the event which situation which confronted the court in v. Service, Inc., occurred while the F.Supp. (E.D.La.), rise to the cause injured party action” upon Lease 365 1202 curiam, the land” and is the per (5 “was 1973), aff’d 487 F.2d 915 Cir. “sole, proximate” cause of the immediate and May the facts the case now before us. injury, admiralty jurisdiction no exists. plaintiff as a laborer on a platform” “fixed in the Gulf of Mexico. Plain- Mann, Hastings plaintiff v. The using tiff was a makeshift crane which was (4 1965), injured slipped when he 910 Cir. permanently platform affixed to the to unload ramp submerged end and fell from the equipment ship. crane, some from a The launching designed of small boats. The for the powered by ship’s generators, which was gave the accident rise to a insisted that malfunctioned, throwing plaintiff plat- from the cause of action in since he was ship. form and onto the The court dismissed submerged ramp standing end of the at the admiralty jurisdiction, case for lack of not- navigable slipped. water when he We affirmed ing that the accident was “initiated” on the for lack of admi- the district court’s dismissal ralty jurisdiction platform which was an extension of the land slipped had since ship land, and the ramp. fact that landed on the an from extension of the Judge the boat court, Haynsworth, speaking a result of his fall was not relevant in determin- for this ob- served, ing jurisdiction. “The fact that the libelant’s feet were

433 vessel, dropped Whittington that the winch line course his employ- than onto the shore is onto the rather Whittington ment. appears to base his con- injuries qualify as occur- insufficient clusion that admiralty may ex- upon navigable jurisdiction- waters for ring upon ist theory this case that Whit- v. 460 purposes. al Bible Chevron Oil tington suffered his while “doing 1972).5 (5 Since alleged F.2d 1218 Cir. the work of a seaman” in the service of a upon tort did not occur is, therefore, vessel and entitled to waters, it fails to meet the first of the the status of a “seaman” the purpose conditions necessary above-stated estab- invoking admiralty jurisdiction ground admiralty jurisdiction. lish that federal argument courts. We find the not, therefore, We need consider whether presented support proposition this wholly the resultant tort and had unpersuasive. It represents confusion of nexus. maritime admiralty principles and constitutes sub- departure accepted stantial jurisdic-

It would seem equally clear that tional standards. Whittington injured by was not a vessel appurtenance navigation thereof. There is a failure on the Whittington The winch from which fell was distinguish “seaman” from bridge located on the which was de “one does the who a seaman.” The It is well established that a molished. jurisdiction term “seaman” when used in a admiralty jur is not vessel within sense to one who al refers “member of v. & Rodrigue Casualty isdiction. Aetna the crew” of a vessel. Chicago South Coal 360, 1835, Surety Co., 352, 395 89 S.Ct. U.S. Bassett, 251, & Dock Co. v. 60 U.S. Thus, S.Ct. (1969). 23 L.Ed.2d 360 the fact that 544, (1940). phrase 84 L.Ed. 732 “one the winch was attached to a estab who does work of seaman” is used to appurtenance was not an lishes vessel, customarily protect define class workers who are though may even seaworthiness, loading Victory warranty ed operations. be utilized in Law, Carriers, applied only after Inc. has been (1971); 30 L.Ed.2d 383 McCullum found to exist. See United Pilots Associa (9 Corp., 493 F.2d 501 Halecki, United International tion v. U.S. therefore, conclude, 1974). We (1959); L.Ed.2d 541 Shipping Seas Co. v. injured by a vessel Sieracki, 90 L.Ed. thereof, and navigation appurtenance or an Court in Victory. in cannot be admiralty jurisdiction Carriers, Law, Inc. v. 404 ground. voked rejected L.Ed.2d has idea that admiralty jurisdiction can be grounds two in Having found the first voked absent, worker, shore-based jurisdiction to be our ashore, while based solely upon turn to the third analysis must now evidence doing that he was injured plaintiff was ground traditionally done —whether “seaman,” by a the crew a a injured.6 a member of seaman at the time he was (5 striking platform sup- 5. Bible v. Oil 460 F.2d 1218 Cir. there Chevron resulted from 1972), “pulled plaintiff port land, a who was off involved beam which is an extension of by drilling platform appa- rejected a defective winch Court such distinctions ratus, striking support platform inconsequential Son, a beam before Tay- in T. Smith & Inc. v. falling lor, more feet into the sea.” several Id. 276 U.S. 48 S.Ct. 72 L.Ed. 520 (1928). court that the sub- refused, 1219. The noted juris- “[s]ince In Smith the Court and consummation purposes, stance the occurrence distinguish injuries dictional those giving place injuries rise sustained took upon incurred the land from those incurred drilling platform, plaintiff on the the fact that Bible after the fell into the water. 276 U.S. ultimately up in the drink does not wound injury transform this ‘land based’ into a mari- (citations omitted). injury.” Following quotation (footnotes omitted) time Id. at 1219 is a Although distinguished Victory Carriers, supra, that case could be from from 404 U.S. at 210- injuries the case now before us since the actual 92 S.Ct. at 424: crew,” interpret phrase, as we that refers to a failure to Here, to be appeared there employees one hand and those of a vessel “who are natu jurisdiction on the distinguish oth- on the aid in her rally primarily remedies board to of available scope O/Y, v. Gutzeit navigation.” Chicago in Garrett South Coal & Dock we said er. As 1974): 251, 260, (4 Bassett, 231 Cir. F.2d Co. 309 U.S. Hence, 544, 549, (1940). one no little 84 L.Ed. be appears . There admiralty jurisdiction upon by concerning restrictions cannot invoke confusion law. under maritime as that of a “seaman” alleging recover his status right to attributable, great injured merely happens is because he be confusion This scope measure, to the fact a task in the course of his performing while always equal is not admiralty jurisdiction employment traditionally would be war- the seaworthiness Carriers, to the breadth of Victory a the task of seaman. consideration of ranty. Thus careful Law, supra7 Inc. v. is essen-

limits Whittington’s discovery deposi . tial tion before court below demonstrates long- was Garrett Since the was not a “seaman” and that ashore, he could injured while shoreman his assertion support he had no basis to only by show- admiralty jurisdiction invoke laborer, admiralty jurisdiction. He was unseaworthy an ing that he was bridge. demolish a Prior help navigable of a vessel appurtenance plaintiff’s to the accident contact with predi- that case was waters. Jurisdiction navigation spent was that he had a vessel solely upon evidence cated tied day pier one on board appurtenance of the ves- was helping scrap while to load Assuming in the instant case sel. bridge. day On the demolition of was, law, doing as a matter of accident, plaintiff was being lowered that fact the work of would loading winch onto the to continue pertinent to a determination of the scrap. opinion We are of the that a mere warranty of seaworthiness of whether worker, as the shore-based him, but would not determine extended case, who incidental and intermit has jurisdictional question. nonnavigational tent duties aboard in a A “seaman” as the term used moored to a is not “seaman” for “per jurisdictional sense means one who is jurisdictional following purposes. The ex manently employed by attached to and particular cerpted statement interest: aas member of its [a vessel] argues further that he was Dredging Corp., Plaintiff crew.” Senko v. LaCrosse 370, 372, 415, 417, jury entitled to a determination concern ing surrounding jurisdictional A “member of the facts L.Ed.2d 404 however, longshore- argued, if a It is occurred on waters. And in Guti- may errez, admiralty jurisdiction recover unseaworthiness if in- supra, man federal ship jured unloading Admiralty in the course clearly present Ex- since Sieracki, process, Shipping Seas Co. [328 injury face tension Act on its reached the (1946)], 90 L.Ed. there The decision in Gutierrez involved. has an unseaworthiness claim for and if he turned, not on the “function” the stevedore pier and caused sustained but, performing injury, at the time of his gear, ship’s unloading Gutierrez [v. rather, the fact that his Corp., Steamship Waterman by appurtenance ship caused an of a 1185, (1963)], 10 L.Ed.2d 297 he is also approved . . an The Court has never admiralty when he is in- entitled to sue recovery unseaworthiness for an sus- employer’s jured own on the dock merely injured tained on land because the engaged equipment is in the at the time he process longshoreman engaged in the of ship waters. service of a located on “unloading.” “loading” [Empha- or . . Sieracki, however, supra, did not call into supplied.] sis admiralty of federal the extent jurisdiction 7. See note 6. since the accident there maritime injured doing while Longshoremen’s traditionally and Jones Act both his done a seaman. We this contention likewise claims. find con- controlling merit. The facts without remedy The Jones Act affords a all cerning the nature fall who within the class of “seamen.”9 . [plaintiff’s] structure . . remedy provided But that so would appear are duties thereon are clear. These fac- applicable persons be to the class of requiring tual no further evi- inflexibles jurisdictional defined as “seamen” for pur- Accepting facts dential elucidation. poses.10 plaintiff, there is most favorable It seems that fails to distin- jury on which a no reasonable basis could scope guish remedy of the available injured he was navi- determine that scope Act under Jones and the gable waters or that he was a seaman. remedy available warranty under Stanley Guy . Scroggins v. Const. unseaworthiness. Since the are standards 374; Co., 5 Cir. 297 F.2d Thibo- different under the of recovery two theories Co., Ray deaux v. J. McDermott and there a difference in the remedies and 1960, 276 F.2d 42. coverage. Moore, 7A See J. Federal Prac- Co., 1333, 1335 Carey Labit 421 F.2d Salt tice, 2nd page Ed. at .325[1] f (5 1970). note dangers are There inherent in the shore- previously This court has had occasion to law, ward encroachment merely that note because one undertakes body peculiarly high of law suited to the task traditionally which is the work of a contends he is seas.8 that not he is automatically entitled to entitled to assert a claim under Jones the remedy afforded “seamen” the Jones Act, Biggs if can Act. Dredging 46 U.S.C. show he v. Norfolk § O/Y, Gutzeit, injured by 8. See Garrett v. equipment not that was (4 1974). Supreme Court 235-236 Cir. had ship’s gear usual or that was stored on expressed its earlier concern over shore- board, equipment him was in expansion ward law: way ship, no attached to the the forklift was juncture We are not inclined at this crew, ship, under the control or its existing precedents disturb extend ship and the accident did not occur aboard or reach of the maritime law shoreward the gangplank. ... At least Congress approved. further than has We are explicit congressional absence of authoriza- dealing here with the intersection of federal tion, we shall not extend the historic bounda- stands, As the law now and state law. state added) (Emphasis ries of law. the maritime traditionally governed law has accidents like Carriers, Victory Law, Inc. v. respondent this one. To afford a maritime 211-214, 418, 425-126, 30 L.Ed.2d cause of would thus intrude on action an (1971) (footnotes omitted). area has heretofore been reserved for law, questions state would raise difficult con- 688, provides 9. The Jones U.S.C. cerning the law extent to which state would pertinent part: displaced pre-empted, or and would fur- Any'seaman personal inju- who shall suffer opportunity circumventing nish state ry employment may, at course of his compensation workmen’s circumstances, statutes. these election, damages maintain action proceed we should with cau- law, right jury, with the of trial construing tion in ry provisions dealing constitutional and statuto- all action statutes the United States with modifying extending or the common-law the federal courts. . right remedy personal injury longshoremen injured pier That cases unloading loading railway apply; employees the course of vessel . shall . . legally distinguished longshoremen are Admiralty coverage and the performing ship similar services on the depends only finding Jones on a development particularly neither a recent paradoxical. nor vessel, employee was “an honey- law is The maritime employment” engaged in the course of his differing treatment for seamen combed (Citations injury. omitted.) the time of his longshoremen, ship. on and off the . Corp., Dredging Senko however, LaCrosse case, typical present ele- In the 370, 373, par- 1 L.Ed.2d 404 of action are ments ticularly maritime cause respondent Law was attenuated: 436 here uncontroverted that dece- For is 1966). (4 page At 364

F.2d Cir. 360 less “However, permanently dent was not more or claimant stated, if the court specific fleet a vessel or a of attached to single phase in of substituting a simply not meals neither took his or vessels. He of the duties, is a member but a seaman’s barges towing or slept any on of the their crew, . . he why we see no reason perform any did he function vessels. Nor employer on may . . . sue his not either the operation to the of necessary Act.” Jones barge any which he was has held The Court barges upon which the other numerous Longshoremen’s passage of that the loading/unloading in he assisted (33 Compensation Act Workers’ Harbor . . . pipe. Congress shows that seq.) 901 et U.S.C. § entry a court Burns affirmed The of the “to confine the benefits intended for the defendant verdict directed a the crew of to the members of Jones Act claim, holding Act Jones . . .” navigable waters plying in vessel not a as that term is used in “seaman” Inc., Brothers, v. Marra Swanson the Jones Act. accord, (1946); L.Ed. 1045 oath, discovery deposition, In his under Co., 319 F.2d Dredging v. Norfolk Lawrence a part made of the motion to 1963); v. Diamond (4 Cir. McKie record, part and a without dismiss (5 Co., 135-136 Cir. 204 F.2d Marine opportunity had objection, 1953).11 qualify as “member of the To general support allega- state facts to one must be under the Jones Act crew” complaint respect tions attached to permanently less more or jurisdiction. district court’s fleet;12 one whose he must be vessel or order In its memorandum decision and “naturally primarily as an duties serve the district court discussed the dismissal sense,13 in the navigation” aid broadest met which must be requirements normal navigation.14 be in vessel must order to and maritime establish The jurisdiction. the instant case court noted case, who, particularly plain- in the course of his was a laborer record assigned deposition, to work on a tiff’s own that Whit- employment, was discloses tington employed by one and did work defendant as a operator duties related day prior to his accident. His crane and laborer in the demoli- bridge; bridge; primary not to the tion of work was to the demolition wholly bridge, barge. not an navigation of the Such instrument or structure navigation navigation; wrong negli- tort or unrelated Act gence as Jones which resulted in his was com- qualify does not Corp., bridge; Oil 474 mitted on the he fell the barge See Ross Mobil onto “seaman.” 1973). (5 is the with had permanent Pertinent which he no relation or F.2d Cir. connection; following passage Burns Anchor- he was not a member of a (5 1972): Co., navigation; Cir. crew aboard in aid Wate 469 F.2d complaint (5 forth a claim also sets 12. Burns v. Anchor-Wate 469 F.2d 730 excellent discussion 1972). maintenance and cure. An as “seaman” under of the status one finding upon Act and effect Jones Harney Bldg. Corp., v. William M. Moore and cure can to maintenance entitlement (2 1966). 654 Cir. (for Judge opinions of Chief Clark found in the (dissenting) Judge court) Lumbard Corp., F.Supp. 14. Tuder v. Material Service Co., 235 v. Central Railroad of Weiss case However, (N.D.Ill.1959). case 1956). (2 draws heavi- That case F.2d 309 ly clear, fact makes the mere the vessel is placed upon the Jones upon the limitations moored a wharf or structure does not mean Longshoremen’s Harbor Work- Act navigation. that it (33 Compensation et U.S.C. ers’ seq.). now, I emphasize was not the unseaworthiness as will later become injury; wrong apparent, plaintiff’s of his cause per- claims for injury signifi- injuries must bear some sonal caused are asserted as negligence activity relationship cant under Act the Jones as well as under the order invoke the and maritime historic claim cure, for maintenance and jurisdiction general admiralty. of court. claim in Nowhere in prior appeal the case plaintiff did the language, In colorful and forceful assert involved, the vessel or any of court stated district further: appliances, her was unseaworthy. IWhile imagination, the cre- despite Judicial realize that pleading under the Federal language complaint, ative is not Rules liberal, of Civil is quite Procedure sufficiently plaintiff, elastic to transform because of the decision of the district judge a bridge job, laborer on demolition into that he jurisdiction had no and the differ- a seaman or member crew in ent antecedents three sources of re- satisfy admiralty order to and maritime covery an injured seaman, for the omission jurisdictional requirements. claim for unseaworthiness should be deposition does not sustain his Plaintiff’s noted.1 generaliza- position on complaint tions and conclusions course, Historically, of as traced court presented by in memoranda counsel decisions, a right seaman had a of indemni- proof placed do not sustain the burden ty personal on account injuries occa- motion dis- plaintiff defendant’s sioned the unseaworthiness vessel miss. and its appliances, measure damages in which was largely coextensive with dam- judgment We conclude ages injuries for person ordi- district court must be affirmed. nary unseaworthiness, tort claim. Absent Affirmed. he had no cause of action on account of negligence of the owner. In addition to the WIDENER, Judge (dissenting) Circuit damages for warranty breach of of seawor- respectfully I dissent. thiness, right the seaman had the .to claim here whether the district cure, generally maintenance and consisting plaintiff’s had court wages lost and medical care and atten- personal claim filed under the brought tion injury about or sickness. Jones 46 U.S.C. and for mainte- right He had this latter if he were in the general admiralty nance and cure under ship service of the at the time the complaint law. No claim was made in the occurred, and maintenance and cure de- appliances the vessel her were pended neither aon breach of warranty of seaworthy. seaworthiness nor on the negligence of the owner, but accrued to a seaman court who be- The district found the seaman, came sick or not a concluded that no service of the had ship. The jurisdiction, complaint. Jones then added to dismissed seaman, opinion remedies of a allowing am of that whether or not him to re- cover on plaintiff was a or a account of negligence member of the own- crew, is a matter of er. This was fact which should not an additional remedy. So it is conclusively adversely possible been decided for a seaman to have three causes solely pre- basis of arising of action from injury. the same H. deposition, Baer, trial and would fur- remand for Admiralty Law of Court, ther consideration. (2d 1969). Ch. I ed. Corp., In Usner wholly v. Luckenback Overseas liability worthiness distinct L.Ed.2d 562 negligence.” based on 400 U.S. at “repeatedly the court stated that it had taken at 517. pains point liability out that based on unsea- count, $10,000 rate’ a laborer claims here was cure. defendant, Com- maintenance and Sewer Construction

by the bridge Inc., the in demolition pany, plaintiff prior Since the asserted no claim Charleston, West the Elk River crossing appeal the the to as to unseaworthiness of any question us is Not before Virginia. appliances, vessel or we have no its should the Elk River or not whether occasion to consider whether or not admi- barge the involved whether or not water ralty might be defeated as to Barge ABL 358 navigation. in a vessel was claim, assuming the unseaworthy sole the control and under possession the was in appliance have been to the shorebased alongside was moored and the defendant of winch its attendant choker. McGowan and river, the bridge, in of the piers the one of Gillenwater, 1970); (4th v. 429 F.2d 586 water between twenty feet of about with O/Y, 228, Cf. Garrett v. Gutzeit decking wood the The barge and bank. the (4th 1974); Victory v. Carriers being as it was the from and steel Law, 202, 418, 30 L.Ed.2d the being were loaded into dismantled away upon hauled was to be barge which The us before is whether the job. completion plaintiff, Whittington, necessarily pre- was had worked on plaintiff apparently being cluded found a from seaman which he day his until the before bridge structure the must be entitle him to to assert his claims of three weeks. The injury, period a about under the Jones and for maintenance worked injury, he had on the the day before and cure. The evidence is uncontroverted bridge would lower The men on the barge. the day before the injury Whittington down the and steel dismantled wood the barge had worked on the loading cargo its winch, plaintiff and the and with a barge of steel and wood which was lowered into the unhook man would another barge by the means of the winch. As was the barge. the into and load material winch by Supreme noted Ship- the Court in Seas any suggestion the had is no There Sieracki, 85, ping Company than the wood steel from cargo other (1946) (a 90 L.Ed. 1099 get In order onto bridge. the dismantled longshoreman’s here): case unlike the case in working loading on it the men barge, the the work “Historically loading of is the the would be lowered winch cargo its service, ship’s the performed un- calls choker. plaintiff of what the means til recent times members of the crew piece rope of wire consisted of The choker . the owner seeks to have [t]hat in eye either long feet about five the advantages done with of more mod- placed eye of in One the choker end. ern divisions of labor does not minimize end the winch line. The hook the hazard worker’s and should not nulli- place eye foot would one plaintiff fy his protection.” the above hook the choker hold on here has alleged that he “was line, position would the winch defendant, barge by on said barge. be lowered to On then performing the work of a and a deckhand was to work on the day second seaman,” that he “was member of the lowered, the hook on barge, while barge, the Elk working crew said on caught flange bridge, line on a winch River,” “an and was ablebodied seaman hook, eye of the choker off the rubbed with his assigned connection duties thirty more than feet fell may tasks.” While it be true that all of personal barge, suffering serious into during plaintiff’s period the entire duties complaint under the injuries. Plaintiffs dis- employment, as revealed the part alleges negligence Jones Act been, covery may deposition, generally and in seven dif- the defendant strictly speaking, duties of for which he aspects particular’ ferent during employment the first of his permanent damages for total claims which, rath- sepa- he had worked on structure disability, addition barge, day place before er than on to his of work on when the cargo storing worked he had complained occurred which are duty, barge, a seaman’s and he here. perform this being lowered In Senko v. Dredging Corp., LaCrosse injured. Nothing time he was duty at the U.S. 404 (1957), L.Ed.2d before us indicates that in the record reversing 7 Ill.App.2d 129 N.E.2d 454 ABL service on board 358 was plaintiff’s (1955), employed by other than indefinite. any duration dredging company assist with dredging Bros., Marra Swanson operations slough being dug bypass 90 L.Ed. 1045 rocky section Mississippi River. His Long- provisions that the Court held work was that handyman; included Compen- and Workers’ shoremen’s Harbor carrying storing supplies general Act, 901, seq., 33 et sation U.S.C. confine § dredge. maintenance of a He was mem- the benefits of the Jones Act to the explosion the aof coal stove while plac- plying naviga- of a bers of a crew vessel signal ing lanterns from dredge in a and that “it leaves unaffected ble waters neighboring shed He bank. sued of a rights members crew Act, under the Jones and the court recited when vessel to recover under Jones Act order to recover he “had to be a pursuing their maritime em- while member of a crew.” The court there fol- whether ... or ployment on board Chicago Bassett, lowed South Co. v. 309 7-8, 66 872.2 on shore.” Id. at S.Ct. at 251, 544, U.S. 84 732 (1940), L.Ed. Thus, injury to the whether held plaintiff, that whether or not the said to occurred when he may here be in his suit the Longshoremen’s Act, under the time landed in the or at questions was a member of a crew turns on (where the eye inevitable became fact, held that hook) is of choker came off the no moment. coverage and the depends Jones Act were a in the If the seaman service “only finding on a that the injured was ‘an vessel, he is entitled to assert a claim employee engaged the vessel in the Likewise, Jones Act. the claim under the employment’ course at the time of depend does for maintenance and cure not injury.” 373, 352 U.S. at 77 S.Ct. at or not the plaintiff in this case whether court stated that whether or not was on or on shore. If he was a board was a member crew “is the service of the vessel at the seaman in fact,” to be left to the 374, finder of id. at time, he is entitled to assert the claim. 328 417, 77 at jury S.Ct. would have 4, 66 S.Ct. 869. This is made clear the same determining discretion in Co., by Aguilar v. Oil 318 U.S. Standard any matter as other fact. 87 1107 L.Ed. position This was reaffirmed seamen, Su- pro- court two which the held that preme Court in its decision in Grimes v. leave, ceeding ship going from the on shore Co., Pile Raymond Concrete 78 were to maintenance and cure entitled (1958). L.Ed.2d In that when one fell into when occurred case, Grimes, appellant, open pier ditch on the and the other was by the defendant to assist in roadway erecting a injured by a motor vehicle on the triangular platform Texas Tower —a to metal he had traverse in order to return constructed some 60 feet above the Aguilar, the court confined its surface ship. supports permanently of the sea on ruling instances where the seaman was affixed ocean, to the floor of going returning ship. either from or and utilized to course, operate warning a radar Whittington, ap- lowered station. The any question cerning compensation. us as to 2. We do not have before state workmen’s Longshoremen’s question very and Harbor Workers’ sole here is narrow one of the seq., Compensation 33 U.S.C. et of the district court. amendments, any question or con- effect of its In passing, the Pile Drivers it should be noted that member of main pellant was a pile as a driver. is an solely employ hired tenance and cure incident to and was Union Grimes, sea, was towed ment. Whether a claimant is the tower entitled to When workmen, lived along depends with 25 other least his status. functions Co., certain performed tower and O’Donnell v. Great Lakes aid its erection. 87 L.Ed. Whether primitive the seaman must perma- had been the tower days Six after word, Bellomy sense of the v. Union Con anchored, appellant and several nently Pipe 297 F.Supp. (S.D.W. crete assigned to on a were other workmen Va.1969), (4th 1970), F.2d aff’d 420 was to nearby barge. Their function whether his status a Jones seaman materials on board the prepare may be considered interchangeably took the tower —a task that for transfer to cure, claims maintenance and Mahramas com- Following six hours. approximately Lines, Inc., Export v. American Isbrandtsen barge, work aboard pletion of the is, 165, 169 (2d 1973), think, F.2d transferred back the tower appellant was necessary appropriate ring tug. a life It by means of quite meager now on the decide record be- during his tower transfer us. fore injured. Grimes was ver- While in are fully a directed the facts this case not The First Circuit affirmed developed, opinion favor of I no by the district court in and intimate as to dict entered that whether or the grounds the defendant on the Grimes not should ulti- any a of a crew of clearly mately was not “member be held to be a member of the crew court on to question seaman, vessel.” That went state: the in a barge of or submit is uncontradicted the sole that he possibly not be said could “[I]t evidence, deposition in which contains the injured in the course of his was [Grimes] us, facts member, only before does show that the last for his employment as crew [a] performed through, all and work for his em- was on ployer was was he was while transferred that of tug loading back to the Texas Tower. cargo, proc- from the and that he was in the Furthermore, appellant’s presence on of being ess lowered into the vessel to con- temporary, sporadic tinue this at work aboard ABL 358 the time measuring up requirements of not his injury. loading cargo Since the is be- permanent ‘a more or less connection work, Shipping traditional seaman’s Seas . ship and the worker’. tween the Sieracki, 96, 85, 872, v.Co. (1946), Whittington

90 L.Ed. 1099 since employed barge, on board the and since Supreme Court however, whether or was a Appeals, not reversed the Court of facts, that, vessel, was an a member on these there crew of held upon jury fact, could evidentiary Chicago, basis which matter of 309 South U.S. appellant was a whether or not the opinion decide I am so any a crew vessel. member of complaint dismissal of the want juris- for doing, approval its ear- diction, the court cited to the both as Jones claim and Chicago. in and South lier decisions Senko cure, as to claim for maintenance and was erroneous. facts of this case as

Thus, Supreme Court’s deci- given they appear way in their Grimes, limited before us in that a sions seems Senko now would seem to make as working strong a case showing employed a man in jurisdiction in our in that of barge, admittedly purposes Grimes, to, waters, navigation is at above referred as well as in jur- Bridgeman, Butler 356 78 U.S. S.Ct. least sufficient invoke 2 court, further L.Ed.2d 754 a Jones Act case isdiction of the and warrant which around inquiry. factual

441 wharf, question States, morning and on Bank the United it my opinion cleaning boiler of engaged had been that the court proceeded should have to the merits, tug and, been out which had of service if the case were dismissed, later prior without months the acci- crew for it should merits, have been on the not for dent. jurisdiction. This, want of it appears to me, is procedure consistent with the out- here, In the I think pleadings case lined Court in Smith v. discovery deposition enough show Sperling, U.S. prevent the dismissal of the case for want (1956). L.Ed.2d 1205 There the court re- jurisdiction. is simi- This case versed district court determination that a enough lar class of to that federal corporate defendant ain stockholders deriv- jurisdictional cases in which the facts and ative suit realigned should be party as a recovery depend the facts which must plaintiff since corporation was antago- comingled, are to some extent same and nistic the defendant posi- stockholder’s warrant a rule courts should slow evidence, After taking tion. the district jurisdiction, want dismissing for for so court ruled on the of antagonism fact deprive to do may very party well of his destroyed the diversity See, day Hood, Bell in court. U.S. court and resulted in dismissal of the 678, 682, (1946); L.Ed. 939 complaint. The Supreme Court found that States, Osborne v. Bank of the United gist of the district court’s findings went 738, 818, (9 Wheat.) seq. et L.Ed. 905 as well as to the merits of the underlying “admiralty Because dispute as to the question jurisdiction. over the to the suit” as Jones Act claim “as out, pointed As was there the proper course in the case for maintenance and cure” does of conduct would been try the case depend place where on the merits rather than denying par- was inflicted “but on the nature of the ties their day delving court into the relationship operation service and its merits of the underlying dispute in an at- vessel,” O’Donnell Great Lakes tempt to resolve preliminary jurisdictional 36, 42-43, U.S. matter. L.Ed. I judgment submit the dismissing the court the case lack of I am thus opinion jurisdiction should vacated and the case Whittington’s status as being one remanded proceedings. for further goes only to merits of the controversy but jurisdiction also to the Whether was a seaman is a court, should not be decided upon the suggest matter of fact which should not preliminary summary motion for judgment, adversely conclusively have been decid- since, if all factual inferences were taken ed against him on the basis of mere favorably plaintiff, pre-trial deposition. It is well established the court would been established ruling summary judgment “[o]n the extent necessary warrant further inferences to underlying be drawn inquiry. factual facts [support- contained in materials ing light must be viewed in motion]

most the party opposing favorable to Diebold, Inc.,

motion.” United States v. 654, 655, 993, 994, then,

L.Ed.2d 176 Whittington,

entitled to all favorable factual inferences

which I do not think has been accorded.

Moreover, his status as a seaman is a com-

mon -fact going to both the merits of the

ease as well as to

court. Under Bell v. Hood and Osborne

Case Details

Case Name: Lawrence Whittington v. Sewer Construction Company, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 12, 1976

Citation: 541 F.2d 427

Docket Number: 74-1234

Court Abbreviation: 4th Cir.