Brief in Opposition Filed in Dize, a Jones Act “Seaman Status” Case

The Brief in Opposition has been filed in Dize v. Association of Maryland Pilots, the case concerning seaman status for maritime workers who spend time in the service of a moored vessel.  The Brief in Opposition is a good read that questions the existence of the circuit split advanced by Ms. Dize in her petition.  Here is the Introduction to the Brief in Opposition (with internal citations omitted where possible):

In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), this Court held that, to qualify as a “seaman” under the Jones Act, an employee “must have a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.”  With respect to the “duration” element of that requirement, the Court endorsed “an appropriate rule of thumb”: “A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Such a worker is not “regularly expose[d] . . . to the perils of the sea”; is “land-based,” not “sea-based”; and has “only a transitory or sporadic connection to a vessel in navigation.”

The petition seeks review of a single, narrow question: whether a court applying Chandris‘s 30-percent rule of thumb “may . . . consider” time spent “in the service of a vessel in navigation that is moored, dockside, or ashore,” or “must” instead “categorically exclude” such time.  That question is not presented here.  Notwithstanding the petition’s assertions, the Court of Appeals of Maryland rejected a categorical rule that an “employee must spend at least 30 percent of [his] time actually at sea” to qualify as a seaman.  It expressly recognized that “a variety of other circumstances” may count toward Chandris‘s 30-percent threshold.  Petitioner effectively prevailed below on the sole question actually posed by the petition: Under the decision below, courts “may . . . consider” time in service of moored, dockside, and ashore vessels in determining whether an employee is a seaman. Petitioner’s real complaint seems to be that the decision below erred in not counting the particular services William Dize performed for moored, dockside, and ashore vessels.  The petition does not seek review of that fact-specific determination, which does not warrant preview in any event.

The petition’s misreading of the decision below also permeates its claimed conflict among lower courts.  The petition alleges a conflict between the decision below and an unpublished Eleventh Circuit decision, on the one hand, and decisions of the Third, Fifth, Sixth, and Ninth Circuits, on the other.  But the decision below rejected the very Eleventh Circuit decision the petitioner characterizes it as having “followed.”  And the decision below embraced decisions of the Fifth and Ninth Circuits (among others).  The purported decision in the circuits thus rests entirely on an unpublished decision of a single federal court of appeals–a decision that does not even bind that court–and dictum within the decision at that.  That “conflict” does not warrant this Court’s review.

In any event, the decision below is correct.  This Court has emphasized that “Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea.”  The Maryland Court of Appeals faithfully applied that directive, counting towards the 30-percent threshold all duties that expose a worker to the perils of the sea, whether or not he is in transit over the water.  And it properly ruled that, on the facts of this case, Mr. Dize’s routine maintenance of vessels ashore did not expose him to such perils.  The petition does not challenge that fact-bound conclusion.  Instead, it seeks a categorical rule requiring courts to count all duties in service of a vessel, wherever and however performed.  That rule would make seaman of workers who are never, exposed to the perils of the sea, obliterating the Jones Act’s “fundamental distinction between land-based and sea-based maritime employees.”

Finally, this case is an exceptionally poor vehicle.  The “question presented” is not presented here, and the petition fails to challenge the actual basis for the decision below.  This Court’s ability to offer meaningful guidance would thus be severely hampered.  And while the petition asks whether time spent in service of a vessel that is “moored” or “dockside” may count toward seaman status, . . . Mr. Dize’s claim below rested on “shoreside support tasks.”  Accordingly, Mr. Dize’s claim depends on the sort of routine, land-based “maintenance work” this Court has held to be not “substantial for seaman-status purposes.”  The total circumstances here make clear that Mr. Dize was a land-based worker who only sporadically performed launch operator duties and would not qualify as a seaman under any conceivable standard.

Tip of the hat to SCOTUSBlog.



Rhode Island Addresses the Scope of a Seaman’s Entitlement to Unearned Wages

In a lengthy decision, the Supreme Court of Rhode Island addressed a number of Jones Act-related issues, ultimately holding:

(1) that the trial justice’s unearned wages jury instruction, which was part of his instructions to the jury with respect to the plaintiff’s claim for maintenance and cure, was erroneous and resulted in prejudice to the defendant; (2) that the trial justice overlooked and misconceived material evidence in the course of granting the plaintiff’s motion for a new trial on his claims for negligence under the Jones Act and breach of the warranty of seaworthiness; and (3) that the trial justice erred in applying Rhode Island’s prejudgment interest statute, rather than following federal maritime law, which would have required the plaintiff to request an instruction whereby the issue of awarding prejudgment interest (vel non) would be submitted to the jury.

As to the unearned wages jury instruction, the court stated (with internal citations omitted):

Our review of the relevant case law make it abundantly clear that the unearned wages instruction given by the trial justice was erroneous.  For vessels like the Persistence, which are “ocean going ships, the rule is said to be that wages are recoverable for the balance of the voyage . . . .”  However, it is possible for a seaman and his or her employer to extend the period of recovery of unearned wages by contract.  Such a contract would have to provide a definite right to employment for a fixed period of time.  Accordingly, “[t]he period as to which unearned wages must be paid is determined by reference to the contractual relationship.  When a seagoing employee has no contractor has a contract with no enforceable term of duration, she only is entitled to unearned wages from the time she becomes unfit for duty to the end of that voyage.  Thus, we hold that Mr. King was only entitled to recover unearned wages as part of his claim for maintenance and cure for either (1) the duration of the voyage on which he was injured (which is not relevant here since the Peristence was docked when Mr. King’s injury occurred); or (2) for the duration of an employment contract between Mr. King and defendant, if there was such a contract.

. . .

We are of the opinion that the trial justice’s jury instruction with respect to unearned wages was given in error in that it was an incomplete and insufficient statement of the law.  The trial  justice stated that, if the jury awarded maintenance and cure, it “should also award . . . unearned wages . . . when [Mr. King] was serving the ship.”  The trial justice was correct that plaintiff was entitled to be compensated under maintenance and cure for the duration of his employment contract; i.e., when “he was serving the ship.”  However, the trial justice failed to explain that plaintiff was “serving the ship” only if he was on a voyage or had an employment contract for a specified duration.  The lack of clarification of the jury instruction with respect to unearned wages illustrates the fact that the trial justice did not “fram[e] the issues in such a way that the instructions reasonably set forth all of the propositions of law . . . .”  It is further our view that, because the unearned wages jury instruction was somewhat ambiguous in the eyes of this Court it is probable that it was even more so for the lay jurors.

King v. Huntress, Inc., — A.3d —- (R.I. 2014).

Supreme Court Petition Filed in Dize v. Association of Maryland Pilots

On April 18, 2014, counsel for Jennifer Dize, the personal representative of the Estate of William Smith Dize, filed a interesting and very well-written petition for certiorari in the Supreme Court of the United States.  The issue:

To qualify as a “seaman” under the Jones Act, 46 U.S.C. § 30104, a maritime worker who “contribute[s] to the function of [a] vessel or to the accomplishment of its mission” must have “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.”  Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (internal quotation marks and alteration omitted).  In assessing “substantiality,” this Court has endorsed a “rule of thumb” that, ordinarily, a qualifying seaman must spend 30 percent or more of his time in service of a vessel in navigation, id. at 371, but this Court has never specified the types of activities that count toward that 30-percent threshold.

The question presented is:

When applying the Chandris 30-percent rule, may a court consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or must a court categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held?

A copy of the Maryland Court of Appeals’ decision, Dize v. Ass’n of Md. Pilots, is available here.

Note: Keep an eye on Dize.  This is a case that the Supreme Court could accept.

Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana

Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development.  On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room.  After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury.  In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel.  The trial court agreed with Plaintiff and the State appealed.

Louisiana’s Third Circuit first addressed causation.  The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.”  The Third Circuit recognized that a seaman need only present “slight evidence” that her injuries were caused by her employer’s negligence in order to reach the jury (and avoid summary judgment).  Here, Plaintiff presented sufficient evidence to avoid summary judgment:

In a transcript attached to her opposition to the State’s summary judgment motion, Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on which she slipped.  She further testified that she was cleaning according to operational instructions.  In contrast, the State alleges she created the condition of soapy water mixed with oil through her own act of mopping.  Therefore, there exists a genuine issue of material fact as to causation.

As for liability, the Third Circuit determined that summary judgment should not have been granted in Plaintiff’s favor.   Plaintiff submitted that the vessel’s engine leaked oil, that its propeller shaft leaked water, and that the vessel had “poor flooring conditions.”   But the “presence of oil does not satisfy the legal standard for demonstrating Jones Act negligence as set forth above.”  Here, the jury must determine whether the dangerous condition was caused by the State’s negligence, or whether, as the State argued, Plaintiff caused the dangerous condition herself.

Thibodeaux v. State, DOTD, 13-893 (La. App. 3 Cir. 3/12/14); — So. 3d —-.