Evans appeared visibly shaken and pale, and did not assist, as
was his custom, with the handling of mooring lines upon
reaching the dock. Transcript of March 3 at 45-46. Mr. Evans
took a taxicab to his car, then drove himself home and went to
10. Mr. Evans was experiencing pain in his-nose, ribs and
tailbone. When he arose the morning of September 11, he blew
his nose and "blood just gushed out." Evans Deposition at 63.
He immediately contacted his family physician, Dr. Bell, who
had x-rays taken of his spine, ribs and nose. The x-rays
revealed that Mr. Evans had suffered a fractured nose;
plaintiff claims that he also suffered a fractured coccyx and
a possible fractured rib but was unable to present any
corroborating evidence to that effect.
11. Mr. Evans was on medical leave from his piloting duties
for an extended period of time. There was some factual dispute
at trial as to the amount of time that passed before Mr. Evans
was able to recover sufficiently from his orthopedic injuries
to return to work. The Pilot Association's logbook indicates
that Mr. Evans next piloted a ship on October 26, 42 days after
the accident on the M/V AL WATTYAH. However, Mr. Evans had to
wait several days between the time he informed the dispatcher
that he was available for work and his first assignment. March
6 Transcript at 31-32. Therefore, the court concludes, Mr.
Evans' orthopedic injuries caused him to miss 38 days of work.
12. Within one or two days after the September 10 accident,
Mr. Evans and his wife each noticed for the first time a
distinct slurring of his speech and a pronounced weakness or
lack of balance in his gait. He immediately sought medical
attention for these symptoms and was referred to a specialist
in neurology. Unfortunately, however, Mr. Evans' speech and
balance problems increased to such an extent that, when he
returned to piloting on October 26, numerous complaints were
registered about the hazards presented by his condition. At the
request of the Association's president and upon the advice of
his doctors, Mr. Evans took a medical leave of absence
beginning November 10, 1989. In June, 1990, he was unable to
pass the physical exam he needed to renew his state pilot's
license, which expired on September 1, 1990. He has not piloted
a boat since November 10, 1989.
Since the first symptoms of plaintiff's neurological
condition appeared, there has been a steady deterioration in
his ability to speak and walk. Mr. Evans has fallen several
times, fracturing his hip and wrist, and is expected to be
wheelchairbound shortly. At trial, Mr. Evans walked with the
assistance of a walker and his speech was dramatically slurred.
His doctors predict that he will die within one or two years;
however, if he elects to use artificial respiratory and
nutritional devices, and with the assistance of 24-hour
residential nursing care, he could prolong his life another
year or two beyond that time.
13. A professional associate of the plaintiff, pilot George
Mcintire, was with him for a full week in early July, 1989 at
a ship handling school in Grenoble, France. According to
Mcintire, who was with him during that entire week, plaintiff
appeared healthy and vigorous at all times; they took long
walks together each evening and he participated fully in the
school's curriculum. No signs of any neurological problems were
14. Dr. Cook, Mr. Evans' medical expert in neurology and
treating neurologist, noted on January 16, 1990 that "prefall,"
i.e., before the September 10 accident on the AL
WATTYAH, plaintiff said his legs were tired and his balance was
off. March 5 Transcript at 32-33. Dr. Bhatt, plaintiff's other
treating neurologist, similarly testified that at plaintiff's
examination on October 4, 1989, he had complained of difficulty
walking and with balance "for the last few months." March 7
Transcript at 24.
15. No doctor has been able to provide a definitive diagnosis
of Mr. Evans' neurological condition. Dr. Cook described it as
an unusual genus of motor neuron disease that resembles
amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's
disease. He also testified that Mr. Evans' disease probably
pre-existed the fall but
laid dormant. Defendant's medical expert, Dr. Duvoisin,
submitted a pretrial report stating that plaintiff's symptoms
resembled olivopontocerebellar atrophy and Parkinsonism, and
ultimately described it as a chronic progressive diffuse
neurodegenerative disorder. Defendant's Exhibit 1B. At trial,
Dr. Duvoisin said that plaintiff probably had a nerve
degeneration problem similar to ALS.
16. The state of medical knowledge as to the causation of
motor neuron disease like that present in Mr. Evans is
similarly imprecise. Dr. Cook stated outright that "[w]e don't
really know what causes motor neuron disease or ALS." March 5
Transcript at 18. Dr. Cook testified that there is anecdotal
evidence in the medical literature that trauma is a causative
factor of the disease. It was his opinion that it was "likely"
or "possible" that plaintiff's pre-existent motor disease was
aggravated by the traumatic event on September 10. However, he
could not say that it was "probable."
Dr. Duvoisin categorically ruled out trauma as playing any
causative role in plaintiff's neurological problems. March 7
Transcript at 34-35. Dr. Duvoisin described his research as
exclusively directed toward finding a genetic link to the
disease. On cross-examination, he was presented with four
research articles listing trauma as one possible cause of the
disease but dismissed them as not convincing. Ultimately, he
conceded that he could not conclusively rule trauma out as a
causative factor, though he considered it so improbable as to
be "philosophically meaningless." March 7 Transcript at 42.
CONCLUSIONS OF LAW
A. Evans' Status as a Jones Act Seaman
The threshold question before the court is whether Mr. Evans,
as a river pilot, is a "seaman" and therefore entitled to the
protection of the Merchant Marine Act of 1920, otherwise known
as the Jones Act, 46 U.S.C. App. § 688. As we shall see,
the answer is "of paramount importance" to the outcome of
plaintiff's case, since "the seaman's remedies are far more
favorable than those available to other maritime workers."
Robertson, A New Approach to Determining Seaman
Status, 64 Tex.L.Rev. 79, 83 (1985).
Defendant argues that plaintiff cannot possibly meet the
traditional common law requirement that a Jones Act seaman be
permanently assigned to defendant's vessel or perform a
substantial amount of his work aboard it. See Bach v.
Trident Steamship Co., 920 F.2d 322 (5th Cir. 1991) (river
pilot is not a Jones Act seaman because not permanently
attached to a vessel or fleet of vessels); King v.
Universal Electric Construction Co., 799 F.2d 1073 (5th
Cir. 1986). This court's reading of the cases supporting
defendant's argument would compel it to agree. See, e.g.,
Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31
(3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct.
785, 46 L.Ed.2d 643 (1976); Clark v. Solomon Navigation,
Ltd., 631 F. Supp. 1275 (S.D.N.Y. 1986). Plaintiff argues
that the Supreme Court's recent decision in McDermott
leads to the inevitable conclusion that the "permanent
attachment" element of seaman status is no longer required; it
is enough that plaintiff was employed to assist in the
performance of the vessel's functions. In addition, the court
notes that reliance on the Fifth Circuit's decision in
Bach would be dangerous in light of the Supreme
Court's recent decision to remand Bach "for further
consideration in light of McDermott." ___ U.S. ___,
111 S.Ct. 2253, 114 L.Ed.2d 706 (1991).
The court's inquiry, of course, must begin with the Supreme
Court's unanimous decision in McDermott, ___ U.S. ___,
111 S.Ct. 807, 112 L.Ed.2d 866 (1991).*fn1 The question before
the Court on that occasion was whether a paint foreman, who did
not aid in a ship's navigation, nevertheless qualified as a
seaman under the Jones Act. The Court answered this question in
affirmative by jettisoning the aid in navigation requirement.
Since the Jones Act does not define who a seaman is,*fn2 the
Court assumed that Congress intended to use the term in the
same way that other admiralty courts had used it. Id.
at 811. The Court's first task, therefore, was to determine who
was a seaman under the general maritime law when Congress
passed the Jones Act. Id.
The Court then conducted an in-depth analysis of the
historical bases of the maritime worker's negligence suit
against the ship's owner and found that a great variety of
shipworkers were considered seamen at the time the Jones Act
was passed. The Court, however, gave only limited guidance on
the applicability of other common law requirements of seaman
The key to seaman status is employment-related
connection to a vessel in navigation. We are not
called upon here to define this connection in all
details, but we hold that a necessary element of
the connection is that a seaman perform the work
of a vessel. See Maryland Casualty Co. v.
Lawson, 94 F.2d 190, 192 (CA5 1938) ("There
is implied a definite and permanent connection
with the vessel, an obligation to forward her
enterprise"), cited approvingly in
Norton, [v. Warner Co.] 321 U.S.
 at 573, 64 S.Ct.  at 751 [88 L.Ed. 931
(1944)]. In this regard, we believe the
requirement that an employee's duties must
"contribut[e] to the function of the vessel or to
the accomplishment of its mission" captures well
an important requirement of seaman status.
Id. at 817.
This court, therefore, must fill in the gap left by
McDermott and reach the appropriate definition of
seaman as applied to a river pilot who has no permanent
connection to any one ship yet whose only duties place him at
the most important post on the ship — the ship's helm. It
does so, however, not without guidance. As explained above, the
Court instructed lower courts to determine who is a seaman by
examining general maritime law at the time Congress passed the
Jones Act. Id. at 811.
In fact, the McDermott decision itself answers the
question whether a river pilot was a seaman under general
maritime law in 1920. Although endeavoring to determine the
propriety of the "aid in navigation" test, the Court noted that
pilots were considered seamen as early as 1832, when Justice
Story wrote: "A cook and steward are seamen in the sense of the
maritime law, although they have peculiar duties assigned them.
So a pilot, a surgeon, a ship-carpenter, and a
boatswain, are deemed seamen, entitled to sue in admiralty."
Id., quoting United States v. Thompson, 28 F.Cas. 102
(No. 16,492) (CCD Mass. 1832) (emphasis supplied). The
McDermott Court also observed that "[b]y the middle of
the 19th century, the leading admiralty treatise noted the wide
variety of those eligible for seamen's benefits: "Master,
mates, sailors . . . pilots . . . women as well as men, —
are mariners.'" Id., quoting E. Benedict, The American
Admiralty § 278, p. 158 (1850).
This court's own research lends further support to this
conclusion. In a series of cases concerning the states' power
to regulate pilots and pilotage in ports and harbors, the
Supreme Court wrote of this class of mariners that they were
as much a part of the commercial marine as the
hull of the ship and the helm by which it is
guided . . . Pilots are a meritorious class, and
the service in which they are engaged is one of
great importance to the public. It is frequently
full of hardship, and sometimes of peril; night
and day, in winter and summer, in tempest and
calm, they must be present at their proper places
and ready to perform the duties of their vocation.
Ex parte McNiel, 80 U.S. (13 Wall.) 236, 237-38, 20
L.Ed. 624 (1871). In The China, the Supreme Court
noted that statutes requiring ships to hire pilots were
beneficial "by providing a body of trained and skilful
seamen, at all times ready for the service, holding
out to them sufficient inducements . . . to pursue a business
attended with so much of peril and hardship." 74 U.S. (7 Wall.)
53, 67, 19 L.Ed. 67 (1868). See also The Alameda v.
Neal, 32 F. 331 (CC NDCal 1887) (object of pilotage fees
"was to create a body of hardy and skillful seaman, thoroughly
acquainted with the harbor, to pilot vessels seeking to enter
or depart from the port"). In another case, the Supreme Court
observed no significant difference between pilots who accompany
a ship on a voyage and those local or port pilots "whose
employment lasts but a few hours, and who have no connection
with any vessel except to bring into or take it out of port.
The term pilots is equally applicable to [both] classes of
persons. . . ." Steamship Company v. Joliffe, 69 U.S.
(2 Wall.) 450, 461-62, 17 L.Ed. 805 (1864).
Lower courts that were faced with deciding whether pilots
were protected under the general maritime law came to the same
conclusion. Thus, in The Mary Elizabeth, the Circuit
Court in the Southern District of Alabama, declared that "[a]
pilot, being a person employed in the navigation of a vessel,
is deemed a seaman, and his claim for wages is within the
admiralty jurisdiction." 24 F. 397 (CC SDAla 1885). And in
Wilson v. The Ohio, the court held that a pilot on a
steamboat navigating the river Delaware is entitled to sue in
admiralty for his wages. 30 F.Cas. 149, 150 (Case No. 17, 825)
(E.D.Pa. 1834). Finally, in yet another case from this Circuit,
the court assumed that a pilot of a steam vessel, who is a
licensed and sworn officer, is a seaman. The Lud Keefer,
Werling v. The Lud Keefer, 51 F. 44 (3d Cir. 1892).
This court, as did the Supreme Court in McDermott,
must also consider the importance of the Longshore and Harbor
Workers' Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as
amended, 33 U.S.C. § 901-950 in defining a Jones Act
seaman. As the Court wrote:
The LHWCA provides relief for land-based maritime
workers, and the Jones Act is restricted to "a
master or member of a crew of the vessel" . . .
[which] is a refinement of the term "seaman" in
the Jones Act; it excludes from LHWCA coverage
those properly covered under the Jones Act. Thus
it is odd but true that the key requirement for
Jones Act coverage now appears in another statute.
McDermott, 111 S.Ct. at 813. Thus, the term "master or
member of a crew," which is used in the LHWCA to exclude
coverage, is identical to the term "seaman" for Jones Act
purposes. According to the Court, both terms refer to "a
sea-based maritime employee." Id. at 814.