Recent Personal Injury and Car Accident News and Cases related to Hawaii
On June 29, 2015, the Hawaii Supreme Court rendered its decision in the case of St. Paul Fire and Marine Ins. Co. v. Liberty Mutual Insurance, Hi. Sup. Ct. Case No SCCQ-14-0000727 (June 29, 2015). This case arose out of a wrongful death personal injury case handled by this office which resulted in a $4.1 million verdict in favor of our clients - even though Liberty Mutual, the primary liability insurer, never offered anything even close to its policy limits of $1 million. St. Paul - who had to pay our clients everything recovered in excess of the initial $1 million - claimed that Liberty Mutual committed bad faith towards it by failing to settle within its $1 million policy limits. The Hawaii Supreme Court agreed and found that an excess insurer has claims for bad faith against a primary insurer.
JONES ACT- TABLE OF CONTENTS
The Jones Act
II. PERSONS ENTITLED TO RECOVER A. Seamen 2. Employed on "Vessel in Navigation"c. Particular Vessels
46 USCS Appx § 688 covers almost any structure that is either floating or capable of being floated on navigable waters. Producers Drilling Co. v Gray (1966, CA5 La) 361 F2d 432.
Purpose for which facility was constructed and business in which it is engaged are controlling considerations in determining whether or not facility is vessel. Hicks v Ocean Drilling & Exploration Co. (1975, CA5 La) 512 F2d 817, cert den 423 US 1050, 46 L Ed 2d 639, 96 S Ct 777 and (disagreed with Theriot v Bay Drilling Corp. (CA5 La) 783 F2d 527).
Vessel, for purposes of determining individual's seaman status, is either one particular vessel or identifiable group of vessels. Guidry v Continental Oil Co. (1981, CA5 La) 640 F2d 523, 31 FR Serv 2d 443, cert den 454 US 818, 70 L Ed 2d 87, 102 S Ct 96 and (disapproved on other grounds Scindia Steam Navigation Co. v De Los Santos, 451 US 156, 68 L Ed 2d 1, 101 S Ct 1614) as stated in Helaire v Mobil Oil Co. (CA5 La) 709 F2d 1031; Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.
Special purpose structure designed to move cargo short distance from one vessel to another was "vessel" for purpose of Jones Act where its transportational function was not "merely incidental" to primary purpose as work platform. Michel v Total Transp., Inc. (1992, CA5 La) 957 F2d 186.
Although commonsense test for finding "vessel in navigation" under 46 USCS Appx § 688 has been proposed, that as long as vessel is buoyant and capable of being floated from one location to another to accomplish her mission she is in navigation, test does not adequately cover full gambit of decisions which interpret § 688; in addition, some structures capable of being floated are not vessels in navigation. Tuder v Material Service Corp. (1959, DC Ill) 177 F Supp 71.
Almost any watercraft capable of navigation on navigable waters may be vessel. Bernardo v Bethlehem Steel Co. (1961, SD NY) 200 F Supp 534, 5 FR Serv 2d 737, affd (CA2 NY) 314 F2d 604.
To be vessel, structure's purpose must to some reasonable degree be for transportation of passengers, cargo, or equipment from place to place across navigable waters; limited movement by drydock or other floating structure may be part of its special function and not indicate that structure operates as vessel in navigation. Buna v Pacific Far East Line, Inc. (1977, ND Cal) 441 F Supp 1360.
Purpose for which facility is constructed and business in which it is engaged are controlling considerations in determining whether facility is vessel. Garcia v Universal Seafoods, Ltd. (1978, WD Wash) 459 F Supp 463; McIntosh v Occidental Petroleum Corp. (1985, La App 4th Cir) 470 So 2d 184, cert den (La) 472 So 2d 920.
Although term "vessel" traditionally refers to structure designed or utilized for transportation of passengers, cargo, or equipment from place to place across navigable waters, factors such as its size, its ability to float, permanence of its fixation to shore or bottom, and movement or capability of movement across navigable waters are not conclusive. McIntosh v Occidental Petroleum Corp. (1985, La App 4th Cir) 470 So 2d 184, cert den (La) 472 So 2d 920.
139. --Question of law or fact
Although question what is "vessel" is usually jury question, if what emerges from facts and inferences taken most favorably to plaintiff indicate that craft cannot be vessel, jury may not make it one. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.
While question whether claimant is seaman is generally jury question, court is often able to determine "function of vessel" as matter of law. Ketnor v Automatic Power, Inc. (1988, CA5 La) 850 F2d 236, 1988 AMC 2885.
Fleet doctrine, under which one can acquire seaman status through permanent assignment to group of vessels under common ownership or control, is reasonable extension of Jones Act and precedent, and district court therefore erred in failing to instruct jury on fleet concept. Gizoni v Southwest Marine (1995, CA9 Cal) 56 F3d 1138, 95 CDOS 4228, 95 Daily Journal DAR 7288, 1995 AMC 2093.
Trial court may properly decide whether ship in question was vessel within meaning of 46 USCS Appx § 688, when any other determination would be so lacking in evidentiary support that it should be decided as question of law rather than of fact. Howard v Global Marine, Inc. (1972, 2d Dist) 28 Cal App 3d 809, 105 Cal Rptr 50.
That vessel involved is "vessel" within meaning of 46 USCS Appx § 688 may be question of law where facts are undisputed and reasonable men could not draw conflicting inferences. Soucie v Trautwein Bros. (1969, 4th Dist) 275 Cal App 2d 20, 79 Cal Rptr 671.
140. --Special purpose structures
Special-purpose structure, even on bottom of sea, may be vessel in sense required by 46 USCS Appx § 688. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).
It is not necessary for vessel to be classic type of ship or boat to be considered vessel under 46 USCS Appx § 688; vessel may be special-purpose craft which is unlike normal boat but is still capable of navigation. Bernardo v Bethlehem Steel Co. (1963, CA2 NY) 314 F2d 604.
Special purpose floating structures (such as barges, dredges, drilling platforms and floating derricks) function of which requires exposure to hazards of the sea at some distance from shore are vessels; like conventional vessels, they retain their status when berthed for long periods or when resting or attached to bottom. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.
Term "vessel" is applied to floating structures capable of transporting something over water, but it may also mean something more than means of transportation on water; it can be special purpose craft, unconventional vessel not usually employed as means of transporting by water but designed for occupations offshore and in shallow coastal waters. Guilbeau v Falcon Seaboard Drilling Co. (1963, ED La) 215 F Supp 909.
Owner of floating hunting and fishing camp is entitled to summary judgment against Jones Act (46 USCS Appx § 688) suit brought by employee injured while attempting to lift suction pump while camp was spudded into place in remote bayou, because camp, possessing no motive power of its own, no navigation lights or equipment, rudders or radar, and no Coast Guard registration, was not "vessel" and thus employee was not "seaman." Theriot v St. Martin, Lirette, Gaubert & Shea (1989, ED La) 702 F Supp 1273.
Cocktail waitress on riverboat casino has Jones Act (46 USCS Appx § 688) claim against employer denied summarily, where she tripped on garbage can lid negligently left in her path by other employees while working aboard floating casino designed to look like real paddlewheel ship but lacking propulsion engines, rudders, and navigational equipment, even though casino must be moved across navigational waters in event of hurricane, because casino is doubtful "vessel," and craft was not moving in navigable waters at time of injury to waitress, who was not "seaman." Ketzel v Mississippi Riverboat Amusement (1994, SD Miss) 867 F Supp 1260.
141. Barges and scows
Under conception of "seaman entitled to benefit of Jones Act (46 USCS Appx § 688), barge was vessel in navigation where coal was transferred from river barges to railroad cars, loaded barges arriving under tow at mooring area and thereafter being moved by bargemen by means of cables extending from barges to winches on shore, and bargemen riding barges and securing or paying out cable as might be required. Mach v Pennsylvania R. Co. (1963, CA3 Pa) 317 F2d 761.
It was question for jury to determine whether floating barge upon which seaman was injured was in navigable waters. Slatton v Martin K. Eby Constr. Co. (1974, CA8 Ark) 506 F2d 505, cert den 421 US 931, 44 L Ed 2d 88, 95 S Ct 1657.
It could not be said, as matter of law, that scow (38 by 120 foot steel-hulled barge) was not vessel for purposes of 46 USCS Appx § 688; scow which, at time of plaintiff's fall from pier face to platform 15 feet below while doing cement form work in connection with construction of concrete pier, was in navigable waters, tied up alongside pier of bridge from which plaintiff fell. Bennett v Perini Corp. (1975, CA1 Mass) 510 F2d 114 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).
Floating barge used as cleaning platform to strip cargo from barges and to gas-free their cargo tanks was not "vessel" within meaning of Jones Act where it was moored to steel pilings along shore, had no crew quarters, no propulsion power or navigation lights, but did have raked bow. Daniel v Ergon, Inc. (1990, CA5 Miss) 892 F2d 403, reh den, en banc (CA5 Miss) 897 F2d 528.
"Spud barge" constructed for use as work platform and anchored to waterway floor by retractable legs, with no means of propulsion, is not "vessel" within meaning of Jones Act. Hurst v Pilings & Structures, Inc. (1990, CA11 Fla) 896 F2d 504.
Quarterboat barge, although easily transportable, is not vessel within meaning of Jones Act, where its primary function is to provide living facilities to workers in shallow waterways, does not transport cargo or passengers, is not designed for navigation, and where it never provided housing unattached to shore. Gremillion v Gulf Coast Catering Co. (1990, CA5 La) 904 F2d 290, reh den, en banc (CA5) 1990 US App LEXIS 13231.
Four-barge assembly consisting of spud barges serving as work platform for construction of oil platform is not vessel within meaning of Jones Act. Ellender v Kiva Constr. & Engineering, Inc. (1990, CA5 La) 909 F2d 803.
Employee injured on barge-mounted plant processing gravel and sand on private land, and spudded into bottom of wet pit connected to navigable water by private canal, is not within purview of Jones Act (46 USCS Appx § 688). Tuder v Material Service Corp. (1959, DC Ill) 177 F Supp 71.
Barges have consistently been considered "vessels" for purposes of admiralty jurisdiction. Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84.
Claim under Jones Act (46 USCS Appx § 688) is denied, where site of accident, barge used as work platform to construct bridge, is not "vessel" for Jones Act purposes since barge was at jobsite almost 26 months, had no navigational lights or aids, no lifeboats, no crew quarters, and was secured to uncompleted substructure of bridge, and any transportation function was incidental to its primary function as work platform. Clark v Traylor Bros., Inc. (1987, WD La) 661 F Supp 159.
Welder/pile driver/bridge construction worker was not seaman within meaning of 46 USCS Appx § 688, where evidence showed that he spent most of his time driving piles on moored barge used as work platform, because movement of barge away from railroad trestle construction site during hurricane evacuations did not make barge "vessel" and worker "seaman." Sharp v Johnson Bros. Corp. (1989, ED La) 719 F Supp 516.
No reasonable jury could find injured worker to be "seaman" so Jones Act (46 USCS Appx § 688) claim is summarily dismissed, because river bridge worker employed on various barges as part of water crew had no permanent connection to barges and was not employed on vessel in navigation at time of his injury. Brown v McKinnon Bridge Co. (1989, ED Tenn) 732 F Supp 1479.
Claim of worker who was injured while working on dock renovation/installation project against former employer alleging negligence under 46 USCS Appx § 688 and unseaworthiness under general maritime law is denied summarily, where at time of injury neither primary business nor purpose of barge on which claimant was working were navigation or commerce, but rather barge was being used merely as floating platform from which claimant and others were performing dock construction activities, because barge was not "vessel" as matter of law. Hatch v Durocher Dock & Dredge, Inc. (1993, ED Mich) 820 F Supp 314, 1993 AMC 1330.
Marine cable loader injured in fall from ladder on barge did not have status of seaman, where barge did not have navigational power and cable loader was not permanently assigned to barge, because barge was not in transit at time of accident. Keller v United States (1993, DC NH) 885 F Supp 324.
Barge without independent motive power was not vessel in navigation pursuant to 46 USCS Appx § 688, where barge was anchored at pier, moved only along work site at pier, was not used to transport people or cargo to other sites, was capable of only limited self-propulsion and was used only to drive piles and hold equipment for pier, and chief purpose of barge was not transportation of commerce, but to act as work station for dock repairs. Nielsen v Weeks Marine (1995, ED NY) 910 F Supp 84.
Bridge construction worker was not "seaman" under 46 USCS Appx § 688 based on his presence on barge that served as floating work platform, where worker served as rigger and pile driver for construction contractor in bridge reconstruction, because barge was not vessel "in navigation," in that it had no navigational equipment, no lights, no means of self-propulsion, no crew quarters or shelter, no bilge pumps, and no deck winches. Gipson v Kajima Eng'g & Constr. (1997, CD Cal) 972 F Supp 537, 97 Daily Journal DAR 11968, 1997 AMC 2606.
Issue of material fact existed as to whether cold stacked oil drilling barge was "in navigation" at time of floorhand's injury, and thus whether floorhand was "seaman" such that summary judgment dismissing his action under 46 USCS Appx § 688 was precluded, where majority of repairs being performed were minor rather than fundamental, expense of those repairs was small compared to cost of rig, rig provided its own power, and owner maintained crew aboard it at all times. Shanks v Hercules Offshore Corp. (1999, SD Tex) 58 F Supp 2d 743.
Moored river barge from which bridge repair worker fell into cofferdam was vessel for purposes of bringing action under Jones Act where undisputed testimony at trial was that barge was moved on average of twice per week to move equipment needed for repairing bridge pilings from one location to another. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.
Moored river barge from which bridge repair worker fell into cofferdam was vessel for purposes of bringing action under Jones Act where undisputed testimony at trial was that barge was moved on average of twice per week to move equipment needed for repairing bridge pilings from one location to another. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.
142. --Derricks, cranes, and piledrivers
Pile driver on scow equipped with mast, boom, and engine, afloat in Elizabeth River in construction of dock, was vessel within 1 USC § 3, and workman injured thereon was "seaman" entitled to recovery under 46 USCS Appx § 688. George Leary Const. Co. v Matson (1921, CA4 Va) 272 F 461.
Hoister which was barge about 95 feet long, carrying large derrick with boom attached, which was moved about by tug or for short distances by men on board securing lines to shore and taking up on lines with power winch on board vessel, hoister being engaged in removing pilings in Delaware River bed at time claimant was injured was "vessel" within purview of 46 USCS Appx § 688. Schantz v American Dredging Co. (1943, CA3 Pa) 138 F2d 534.
Barge having crane or derrick, with no motive power of its own, is vessel for purposes of 46 USCS Appx § 688. Summerlin v Massman Const. Co. (1952, CA4 Va) 199 F2d 715.
Floating derrick was vessel engaged in navigation under 46 USCS Appx § 688, where structure being crane or derrick was anchored in river and was engaged in pouring concrete into certain forms incident to building of bridge across river, and barge on which crane was erected although having no motive power of its own and no sleeping quarters for claimant and his fellow employees, was moved in water from time to time to facilitate work during construction of bridge. Summerlin v Massman Const. Co. (1952, CA4 Va) 199 F2d 715.
Pile-driving barge which consists of several interlocking flexi-float platforms which carries 150 ton crane that was being used to drive pilings into marshland is vessel for purposes of 46 USCS Appx § 688. Brunet v Boh Bros. Constr. Co. (1983, CA5 La) 715 F2d 196.
Barge containing crane used to move steel on rivers is vessel in navigation for purposes of 46 USCS Appx § 688. Johnson v John F. Beasley Constr. Co. (1984, CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067).
Derrick barge, which was used to transport men and materials across river during construction of bridge and which crossed river five to eight times per day, was capable of movement under its own power, and required tug assistance only when river was at high levels, was vessel, and oiler employed thereon was Jones Act seaman. Mouton v Tug "Ironworker" (1987, CA5 La) 811 F2d 946, 22 Fed Rules Evid Serv 1017.
Barge involved in construction of Chesapeake Bay Bridge-Tunnel, which was used as derrick and alternatively as piledriver was vessel in navigation under 46 USCS Appx § 688 even though barge had no motive power of its own, no Coast Guard number, no rudder, no navigation lights, and no facilities for residence of crew. Spratley v Tidewater Constr. Corp. (1965, Ed Va) 238 F Supp 650.
Injured crane operator's 46 USCS Appx § 688 claim against employer survives summary judgment motion, where operator's uncontested description of procedure for moving derrick boat holding barge established preliminarily that he did contribute significantly to transportation of vessel, because flat deck barge equipped with crawler crane temporarily secured to lake bed adjacent to fill containment site but capable of being towed or moved by tug or other means was "vessel in navigation." Coats v Luedtke Engineering Co. (1990, ED Wis) 744 F Supp 884.
Dockbuilder's claim under 46 USCS Appx § 688 for injuries received while working on crane barge is denied summarily, where (1) purpose of crane platform and materials barge was to act as scaffolding for workers assigned to repair dock, (2) plaintiff's work did not further navigational purpose, and (3) barge was not in transit at time of accident, because platform and barge were not vessels in navigation. Sala v Gates Constr. Corp. (1994, ED NY) 868 F Supp 474, 1995 AMC 549.
143. Car floats
Car float upon which railroad brakeman was injured while helping to move boxcars onto it for movement down river was being readied for river travel and was in navigation under 46 USCS Appx § 688, even though car float was being loaded at dock and brakeman never remained on float when it crossed river. Zientek v Reading Co. (1955, CA3 Pa) 220 F2d 183, cert den 350 US 846, 100 L Ed 754, 76 S Ct 55, reh den 350 US 960, 100 L Ed 834, 76 S Ct 345.
Regardless of whether or not car float on which claimant was actually working when injured was vessel in navigation, claimant was crew member of dredge and tug which were to be used separately or in combination with car float in performing river work, had float been restored to serviceable condition, and therefore, action for injuries would lie under 46 USCS Appx § 688. Tyndall v Conduit & Foundation Corp. (1959, DC Pa) 169 F Supp 299, affd (CA3 Pa) 269 F2d 947.
Shallow water dredge, used as pumping station, was not vessel for purposes of 46 USCS Appx § 688. Fuentes v Gulf Coast Dredging Co. (1931, CA5 Tex) 54 F2d 69.
Dredge was vessel within purview of 46 USCS Appx § 688 when it was duly enrolled as vessel of United States, had full crew aboard with galley and mess to serve them, was afloat in harbor and engaged in cleaning out and deepening slips in which vessels plying in coastwise and foreign commerce were habitually moored, and although it had no motive power of its own, was capable of being and had been towed at sea from place to place for purpose of fulfilling dredging contracts. Kibadeaux v Standard Dredging Co. (1936, CA5 Tex) 81 F2d 670, cert den 299 US 549, 81 L Ed 404, 57 S Ct 12.
Employee working on dredge is seaman entitled to sue under Jones Act (46 USCS Appx § 688). Pariser v New York (1945, CA2 NY) 146 F2d 431.
Dredge which came from New York to Boston with 11 men on board, all of whom slept and ate on dredge during voyage, was vessel capable of being used, as means of transportation on water and therefore "vessel in navigation" within meaning of 46 USCS Appx § 688; it was immaterial that dredge had no motive power of its own. Gahagan Const. Corp. v Armao (1948, CA1 Mass) 165 F2d 301, cert den 333 US 876, 92 L Ed 1152, 68 S Ct 905.
Decedent was seaman within meaning of Jones Act (46 USCS Appx § 688), where dredge on which decedent was operating winch at time he was injured, while dredging in Boston Harbor, was in navigable waters, and although it had to be towed from place to place, it was afloat at all times even though at time of injury dredge was not in motion. Melanson v Bay State Dredging & Contracting Co. (1943, DC Mass) 62 F Supp 482.
Dredge is vessel within meaning of 46 USCS Appx § 688. Early v American Dredging Co. (1951, DC Pa) 101 F Supp 393.
Term vessel may include special purpose structures not usually employed as means of transport but designed to float on water and therefore dredge is vessel within meaning of 46 USCS Appx § 688 where dredge was afloat in lagoon, while repairs were conducted to its pumping engine during relatively short period of time and dredge was returned to its function as soon as repairs were complete. Ramos v Universal Dredging Corp. (1982, DC Hawaii) 547 F Supp 661.
Dredge is vessel within meaning of 46 USCS Appx § 688 even though it has no power of its own. Brannan v Great Lakes Dredge & Dock Co. (1958) 253 Minn 28, 91 NW2d 166.
145. Drilling platforms
Offshore drilling rig was not manmade island but rather special-purpose vessel, entitling crewmen to coverage of 46 USCS Appx § 688 where rig although resting firmly on bottom of Gulf of Mexico at time of accident was mounted on mobile drilling platform located on barge which was moved by tugs from one well location to another where legs were dropped down and hydraulic jacks then lifted barge above water level so that main deck of barge served as drilling platform. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).
Injuries received by employee of professional rig-service contractor performing welding and repair services on tank located on fixed, unmanned platform resting in Gulf of Mexico over 30 miles from shore were not received on vessel within purview of 46 USCS Appx § 688. Ocean Drilling & Exploration Co. v Berry Bros. Oilfield Service, Inc. (1967, CA5 La) 377 F2d 511, cert den 389 US 849, 19 L Ed 2d 118, 88 S Ct 102.
Fixed, stationary oil well drilling platform located 10 miles from coast cannot be considered "vessel" within meaning of 46 USCS Appx § 688. Freeman v Aetna Casualty & Surety Co. (1968, CA5 La) 398 F2d 808.
Fixed off-shore platforms are not vessels for purposes of 46 USCS Appx § 688. Nolan v Coating Specialists, Inc. (1970, CA5 La) 422 F2d 377.
In determining what is vessel, court considers purpose for which craft is constructed and business in which it is engaged; building that housed compressors and which stood on pilings that were driven into ground of sea, and mounted on virtually permanently sunken barges is not vessel under 46 USCS Appx § 688, as purpose and business of compressor buildings were as fixed platforms. Blanchard v Engine & Gas Compressor Services, Inc. (1978, CA5 Miss) 575 F2d 1140, ques certified (CA5 Miss) 590 F2d 594, later op (CA5 Miss) 613 F2d 65, later app (CA5 La) 696 F2d 395.
Fixed platform in outer continental shelf is not vessel in navigation for purposes of 46 USCS Appx § 688. Stansbury v Sikorski Aircraft (1982, CA5 La) 681 F2d 948, cert den 459 US 1089, 74 L Ed 2d 935, 103 S Ct 573.
Offshore structure known as Freeport Rig No. 5, used in exploration and production of mineral resources, was not vessel, and therefore worker on rig was not seaman under Jones Act where rig was not intended to be moved on regular basis, had been moved only twice in past 20 years, further movement was of doubtful feasibility, structure was attached to gulf bottom by pilings driven 200 feet into seabed, rig had no navigation lights or lifesaving gear, was not registered with Coast Guard as vessel, and contained no galley or crew quarters. Hemba v Freeport McMoran Energy Partners, Ltd. (1987, CA5 La) 811 F2d 276.
Oil-well-drilling rig mounted on platform resting on eight piles driven into floor of Gulf of Mexico, which rig was not susceptible of navigation under its own or other power, and platform on which rig was installed was neither designed nor constructed as vessel or special-purpose craft, and could not be moved from its position by any means short of dynamite charges, was not vessel within meaning of 46 USCS Appx § 688. Sirmons v Baxter Drilling, Inc. (1965, WD La) 239 F Supp 348.
Movable drilling platforms are vessels for purpose of Act but permanently fixed platforms are not. Wilkerson v Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp 1279.
Since Fifth Circuit established test for seaman status under Jones Act while employer's motion for judgment n.o.v. was pending, coiled tubing operator, killed after falling from platform aboard ship, was held not to be seaman under Jones Act where overall, only about 5% of his work was done aboard vessels, since seaman status is determined in context of entire employment with current employer. Ward v Reeled Tubing, Inc. (1986, ED La) 637 F Supp 33.
Employee of independent contractor supplying catering and housekeeping services for drilling company cannot assert claim under Jones Act for injuries sustained when employee fell from makeshift platform while making top bunk beds in crew quarters aboard drilling company's fixed platform, since drilling company owed no warranty of seaworthiness where accident occurred on fixed platform and since drilling company was not employer. Moore v Noble Drilling Co. (1986, ED Tex) 637 F Supp 97.
Assistant driller injured on drilling rig operating 5-30 miles off coast of Angola was seaman under Jones Act (46 USCS Appx § 688), even though plaintiff may have been on board rig for only one of its moves, because "in navigation" requirement is met when maritime worker is on high seas and subject to risks which face traditional seamen, and plaintiff, in working with rig superintendent and barge engineer to coordinate moving and navigation of rig, met requirement. Davis v Sedco Forex (1987, ED Pa) 660 F Supp 85.
Permanently fixed, stationary offshore drilling platform was not vessel for purposes of bringing action under Jones Act where, though structure did float above surface of water briefly during its initial installation, it had since been attached permanently to seabed through intricate configuration of steel piles driven 380 feet below ocean floor, and it was designed to remain in same location for its entire useful life. McIntosh v Occidental Petroleum Corp. (1985, La App 4th Cir) 470 So 2d 184, cert den (La) 472 So 2d 920.
Self-contained, fixed platform drilling rig is not vessel where it is designed to be moved from platform to platform, cannot float, is not navigable under its own or other power, and must be moved by transport barges. Rodrigue v O'Neal (1983, La App 1st Cir) 430 So 2d 1235.
Trial judge did not err in determining as matter of law that drilling platform was not vessel, under Jones Act, where evidence indicated, inter alia, that (1) it was designed to remain in one location for its entire useful life, (2) although it did float above surface of water briefly during initial installation, it has since been attached to seabed, (3) at time of accident it was functioning as stationary rig platform, and (4) removal from present location would involve expensive, controlled "demolition". McIntosh v Occidental Petroleum Corp. (1985, La App 4th Cir) 470 So 2d 184, cert den (La) 472 So 2d 920.
146. --Submersible drilling barges
Submersible oil drilling barge is vessel for purposes of 46 USCS Appx § 688. Gianfala v Texas Co. (1955) 350 US 879, 100 L Ed 775, 76 S Ct 141, reh den 350 US 960, 100 L Ed 834, 76 S Ct 346 and (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).
Submersible barges bearing oil-well-drilling rigs are recognized as vessels in navigation even when resting on sea floor. Adams v Kelly Drilling Co. (1960, CA5 La) 273 F2d 887, cert den 364 US 845, 5 L Ed 2d 68, 81 S Ct 86; Chenevert v Clinch Drilling Co. (1967, ED La) 273 F Supp 943; Callendar v Employers Liability Assur. Corp. (1967, ED La) 283 F Supp 213.
Submersible barge designed to transport drilling equipment to well site, to submerge for drilling operation and refloat for removal to new site, was vessel for purposes of 46 USCS Appx § 688. Producers Drilling Co. v Gray (1966, CA5 La) 361 F2d 432.
Court could find that submersible drilling barge bottomed in Corpus Christi Bay on navigable waters and engaged in drilling operations was vessel within meaning of general maritime law and 46 USCS Appx § 688 so as to permit recovery in action for personal injuries by plaintiff who was motorman thereon. Neill v Diamond M. Drilling Co. (1970, CA5 Tex) 426 F2d 487, 14 FR Serv 2d 531.
Submersible drilling barge or platform is vessel for 46 USCS Appx § 688 jurisdictional purposes where barge, although having no motive power in itself, is capable of being moved through navigable water under tow, when used for drilling for oil or gas drilling barge rests on bottom of water and has galley and quarters for its crew. Hicks v Ocean Drilling & Exploration Co. (1975, CA5 La) 512 F2d 817, cert den 423 US 1050, 46 L Ed 2d 639, 96 S Ct 777 and (disagreed with Theriot v Bay Drilling Corp. (CA5 La) 783 F2d 527).
Term "vessel" within purview of 46 USCS Appx § 688 is applied to floating structures capable of transporting something over water, but it may also mean something more than means of transportation on water; it can be special-purpose craft, an unconventional vessel not usually employed as means of transporting by water but designed for occupations offshore and in shallow coastal waters of Gulf of Mexico, submersible drilling rig was such special-purpose craft. Guilbeau v Falcon Seaboard Drilling Co. (1963, ED La) 215 F Supp 909.
46 USCS Appx § 688 was applicable to worker on drilling barge towed to site, it having been capable of being floated and moved from place to place, although at time of accident it was submerged and resting on water bottom while engaged in drilling operations. Ledet v U. S. Oil of Louisiana, Inc. (1964, ED La) 237 F Supp 183.
Submersible drilling barge in service off coast of Louisiana when claimant was injured was vessel in navigation engaged in carrying out special purpose for which she was designed and outfitted, and claimant was entitled to bring action under Jones Act (46 USCS Appx § 688) as "a member of a crew." Hebert v California Oil Co. (1967, WD La) 280 F Supp 754.
Submersible inland drilling barge which lacked motive power and was towed to location, and which at no time was attached to bottom, was vessel for purposes of 46 USCS Appx § 688. Rogers v Gracey-Hellums Corp. (1970, ED La) 331 F Supp 1287, affd (CA5 La) 442 F2d 1196.
Submersible drilling barge was vessel. Ferdinandtsen v Delta Marine Drilling Co. (1970, La App 4th Dist) 235 So 2d 641.
Ferry owned, operated, and controlled by state department of highways which floated on water and was used to transport people and automobiles over bayou, was vessel despite fact craft traveled along cable anchored to shore. Dardar v Louisiana State Dept. of Highways (1971, CA5 La) 447 F2d 952, cert den 405 US 918, 30 L Ed 2d 788, 92 S Ct 943, reh den 405 US 1048, 31 L Ed 2d 591, 92 S Ct 1308.
Car ferries sailing between ports on Great Lakes were vessels in navigation and machinist who repaired equipment on board ferry was employed primarily in aid of navigation. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.
148. Floating drydocks and related structures
Trial judge properly left to jury issues of whether floating drydock was "vessel in navigation"; although drydock floated and performed "special-purpose" functions related to maritime activities, evidence as to mode of attachment when in use, lack of motive power, and absence of transportation or navigation features in its operation supported jury determination that even when in use at its permanent pier it was not "vessel" within purview of 46 USCS Appx § 688. Bernardo v Bethlehem Steel Co. (1963, CA2 NY) 314 F2d 604.
Floating construction platform which was neither designed for navigation nor engaged in navigation at time of accident, is not vessel under 46 USCS Appx § 688. Leonard v Exxon Corp. (1978, CA5 La) 581 F2d 522, reh den (CA5 La) 586 F2d 842 and cert den 441 US 923, 60 L Ed 2d 397, 99 S Ct 2032.
Spar, nautical structure designed to float with bulk of hull below waves and fixed to seabed, is work platform and not vessel for purpose of determining seaman status under Jones Act. Fields v Pool Offshore, Inc. (1999, CA5 La) 182 F3d 353, cert den (2000, US) 145 L Ed 2d 1073, 120 S Ct 1161.
Paint float was not vessel because limited movement was incidental to primary purpose of float, which was to provide stable platform from which men could perform maintenance work on adjacent ships. Buna v Pacific Far East Line, Inc. (1977, ND Cal) 441 F Supp 1360.
Floating drydock, even though documented, mortgaged and insured as barge, is not vessel within meaning of 46 USCS Appx § 688 since facility lacked diesel generators, oil and fresh water storage tanks, air compressors and fire-fighting system in addition to having no anchors, navigation lights, life-saving equipment or accommodations for crew and was not committed to navigation. Nevel v Todd Shipyards Corp. (1978, DC Cal) 1978 AMC 2230.
Employee of dock company injured while aboard pontoon utilized in repair of vessels is not covered by Jones Act (46 USCS Appx § 688), since pontoon is not "vessel" in that it has no motor power, it is towed or pulled about barge repair area, and it is adjacent to drydock and was moored to barge at time of accident. Berfect v American Commercial Barge Lines (1981, ED La) 509 F Supp 734.
149. Pipe-line laying structures
Pipeline construction platform moored next to riverbank, but requiring workers to be transported to platform by tugboat to due marshland, was not vessel in navigation under 46 USCS Appx § 688 due to its accessibility solely by boat, as status of vessel is unaffected by its accessibility to those who are assigned to it. Watkins v Pentzien, Inc. (1981, CA5 Tex) 660 F2d 604, cert den 456 US 944, 72 L Ed 2d 467, 102 S Ct 2010.
Barge afloat and engaging in laying pipe in Gulf of Mexico was vessel for purposes of 46 USCS Appx § 688. Porche v Gulf Mississippi Marine Corp. (1975, ED La) 390 F Supp 624.
Although raft may be designed or used to encounter perils of navigation and thereby become vessel, raft's movements, amounting merely to positioning under pier incidental to its being used for workers to stand upon which repairing pilings beneath pier, was not in navigation. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.
Raft is not vessel under Jones Act, 46 USCS Appx § 688. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.
Pontoon or "work flat", measuring about 9 feet in width and l2 feet in length moored to barge and floating in Mississippi River, is not vessel within meaning of Jones Act (46 USCS Appx § 688. Berfect v American Commercial Barge Lines (1981, ED La) 509 F Supp 734.
151. Small craft
Aluminum flat-bottom boat, 16 feet long, may be vessel for purposes of 46 USCS Appx § 688. Spiller v Thomas M. Lowe, Jr. & Associates, Inc. (1971, WD Ark) 328 F Supp 54, affd (CA8 Ark) 466 F2d 903, 20 ALR Fed 89.
Small, open, aluminum boat may be vessel for purposes of 28 USCS Appx § 688. Stallworth v McFarland (1972, WD La) 350 F Supp 920, affd (CA5 La) 493 F2d 1354.
Tugboat is vessel for purposes of 46 USCS Appx § 688. Hendriksen v Chicago (1946) 330 Ill App 141, 70 NE2d 848.
Tubular section destined to become part of tunnel for vehicular traffic beneath river was not vessel in navigation, and injured workmen, one rodman, other welder, were not seamen for purposes of 46 USCS Appx § 688. Hill v Diamond (1962, CA4 Va) 311 F2d 789, 1963 AMC 591.
Caisson which was constructed for purpose of being both concrete form for bridge pier and part of pier itself and which, at time of workman's injury, was "engaged" in "business" of being prepared to serve those purposes was not "vessel" under Jones Act. Smith v Massman Constr. Co. (1979, CA5 La) 607 F2d 87.
Sea plane is not vessel under 46 USCS Appx § 688 and therefore pilot who regularly was engaged in flying plane to transport passengers engaged in mineral exploration development activity to and from location offshore is not seaman entitling his survivors to bring claims under § 688. Smith v Pan Air Corp. (1982, CA5 La) 684 F2d 1102.
Punt, functioning as work platform, though frequently moved, is not vessel for Jones Act purposes (46 USCS Appx § 688), and seaman injured on punt thus cannot maintain Jones Act suit. Bernard v Binnings Constr. Co. (1984, CA5 La) 741 F2d 824.
Jones Act claim of fatally injured man was not precluded on ground that vessel was oceanographic research vessel covered by 46 USCS § § 441 et seq. where there had been no specific designation of vessel as such. Smith v Odom Offshore Surveys, Inc. (1986, CA5 La) 791 F2d 411.
Floating work platforms used for removing covers of grain barges after they entered unloading slip were not "vessels" for purposes of 46 USCS Appx § 688, and employee who worked on such platforms was not entitled to seaman status. Waguespack v Aetna Life & Casualty Co. (1986, CA5 La) 795 F2d 523.
In Jones Act action against wireline services employer by employee wireline engineer injured while traveling to drilling platform, dismissal of claim was proper where drilling vessels were not considered "fleet of vessels" in that oil company vessels did not act together or under one control, despite presence of winch and computer device installed on deck and owned by employer, and where injured employee was not considered seaman, in that itinerant wireline workers usually have no permanent relationship with particular vessels and are not subject to Jones Act. Ardleigh v Schlumberger, Ltd. (1987, CA5 La) 832 F2d 933, 9 FR Serv 3d 742.
Floating barge, which was used primarily as work platform and was moored at time of employee's injury, was non-vessel under Jones Act (46 USCS Appx § 688), even though it was not constructed as work platform. Ducrepont v Baton Rouge Marine Enterprises, Inc. (1989, CA5 La) 877 F2d 393, reh den, en banc (CA5 La) 885 F2d 870.
Floating dockside casino was not vessel in navigation for purposes of Jones Act when bartender and cocktail waitress were injured, and neither was "seaman" for purposes of Jones Act, where floating casino was moored to shore in semi-permanent, indefinite manner. Pavone v Mississippi Riverboat Amusement Corp. (1995, CA5 La) 52 F3d 560.
While term "vessel" has been liberally construed, it does not include workway or gangway affixed to shore and neither intended to be, nor used, for purpose of transportation on water. Bowen v Union Concrete Pipe Co. (1969, SD W Va) 299 F Supp 1109.
Lift boat company cannot be held liable under 46 USCS Appx § 688 to off-shore welder and pipefitter who performed work on its boats servicing offshore oil and drilling platforms, largely for single platform owner, where platform owner time-chartered lift boats on short-term need, random-availability basis from 10 companies like defendant here, so that boats of these 10 companies shared similar mission but company chosen on any given occasion chose boat and crew that would be leased, and at all times maintained hands-on operational control, because nature of charter and allocation of control therein result in lift boats not being considered "fleet" so that welder/pipefitter cannot be considered "seaman." Etheridge v Sub Sea Int'l, Inc. (1992, ED La) 806 F Supp 598, 1993 AMC 615.
Rigger injured while moving "pig-catcher" from fixed platform to jack-up boat has claims under Jones Act (46 USCS Appx § 688) denied summarily, even though he contends he was permanently assigned to jack-up boat, which is vessel, because evidence is clear that he was transitory maritime worker with no more than transitory connection to jack-up boat, and was not "seaman." Godeaux v Dynamic Indus. (1994, ED Tex) 864 F Supp 614.
Magistrate's order remanding plaintiff's action under Jones Act seeking damages for injury arising from accident that allegedly occurred while plaintiff was working on floating casino is reversed, where casino was never moved except when it arrived in and departed from its spot on city's riverfront and while in city it was never used to transport passengers or cargo, and where its utilities were permanently accessed from shore; casino is not vessel for Jones Act purposes. McAdow v Promus Cos. (1996, WD La) 926 F Supp 93.
Riverboat casino was "vessel in navigation" under 46 USCS Appx § 688, for purposes of determining if waitress employed on riverboat casino was "seaman" under 46 USCS Appx § 688, where riverboat was constructed in another state and traveled on its own power up river, and it had engine, captain, lifesaving equipment, crew quarters, and full-time maritime operations department employees. Wiora v Harrah's Ill. Corp. (1999, ND Ill) 68 F Supp 2d 988.
Pontoon bridge crossing Bayou Plaquemine was bridge or extension of land and could not be classified as "vessel" under admiralty law. Myers v Howell Electric Motors Co. (1978, La App) 365 So 2d 541, cert den (La) 367 So 2d 1185.
Marsh buggy operating in 2 feet of water is not vessel. Melancon v Tassin Amphibious Equipment, Inc. (1985, La App 4th Cir) 469 So 2d 6 cert den (La) 474 So 2d 1309.
JONES ACT- TABLE OF CONTENTS
Hawaii Personal Injury Attorney
William Lawson, Esq.
1188 Bishop St. Suite 2902
Honolulu, HI 96813
New client hotline:
Main business phone:
Directions to Hawaii Personal Injury Attorney
Hawaii accident news
Court cases re: Hawaii accident law
Hawaii Medical Experts-
reviews and links
The Constitution Of The State Of Hawaii
Jones Act- maritime law and seaman cases
The American Association for Justice
formerly known as the
American Trial Lawyers Association
Consumer Lawyers Hawaii
Stanford Law School
American Bar Association
Marquis' Who's Who
in the World,
in America and
in American Law