C. What Constitutes a "Vessel" for the Purposes of § 905(b)?
The contraption on which the plaintiff sustained his injuries cannot easily be reconciled with the conventional definition of a vessel. The flexifloat barge was a collection of modular pieces that interlocked for ease of transport. It was not registered with the Coast Guard, nor was it inspected by any federal or state agency. While technically capable of navigation, it lacked the attributes of a navigable vessel: a means of propulsion, lights, a rudder, a bow or stern, or a cabin. In addition, attempts at navigation were found to be unduly time-consuming and later abandoned.
The parties have offered different definitions of the term "vessel." Plaintiffs champion what might loosely be termed the "Archimedes principle" definition of vessel. That is, if the contrivance has the capacity to float, and is in fact used to transport workers and material over water from the shore to a work site, or from work site to work site, it should be considered a vessel for purposes of § 905(b).
Defendant argues for a functional definition, which would examine the use of the contrivance at the time of the injury. It argues that, if the overriding purpose of the flexifloat barge is to serve as a work platform, and if it does not otherwise manifest the traditional characteristics of a vessel (i.e., means of propulsion, bow, stern, rudder, etc.), it is not a vessel under § 905(b), notwithstanding its ability to float and transport materials. In the defendant's view the transportation function of the barge is merely incidental to its role as a work platform.
The starting point for the interpretation of a statute is the language of the statute itself. Kaiser Aluminum & Chemical Corporation v. Bonjorno, 494 U.S. 827, 835, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990); Electronic Laboratory Supply Company, Inc. v. Cullen, 977 F.2d 798, 802 (3d Cir. 1992). However, neither the Jones Act nor the Longshore and Harbor Workers' Compensation Act provides a definition of the term "vessel." Rather, courts have almost uniformly adopted the definition set forth in the General Provisions of the United States Code, 1 U.S.C. § 3, which defines a vessel as "every contrivance of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." E.g., McCarthy v. The Bark Peking, 716 F.2d 130, 133 (2d Cir. 1983).
The language of § 3 could hardly be more expansive, which is not surprising, since the wellspring of many aspects of admiralty law is the notion that the "special hazards and disadvantages to which they who go down to sea in ships are subjected" require special rules of law. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104, 90 L. Ed. 1099, 66 S. Ct. 872 (1945) (Stone, C.J., dissenting); see also McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S. Ct. 807, 817, 112 L. Ed. 2d 866 (1991). If a contrivance floats and is used to move people or property over the water, it is exposed to these perils regardless of how nonconventional it may be.
Despite the sweeping text of § 3, some courts have found that contrivances that are technically capable of transportation, but that have been moored close to the shore to serve as work platforms, do not qualify as "vessels" for § 905(b) purposes. In Keller v. Dravo, 441 F.2d 1239 (5th Cir. 1971), plaintiff was injured while repairing a vessel from a floating dry dock. Defendants moved for summary judgment, claiming that the dry dock, while technically capable of navigation, could not be considered a covered vessel under the LHWCA. The Fifth Circuit agreed, relying on previous holdings that "as a matter of law, a floating dry dock is not a vessel when it is moored and in use as a dry dock." Id. at 1244 (emphasis in original); citing Chahoc v. Hunt Shipyard, 431 F.2d 576 (5th Cir. 1970); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir. 1969). However, the Keller court was "unwilling to promulgate an absolute rule of law that a floating dry dock can never be a vessel." Id. at 1244.
Keller was decided under § 933(i) of the LHWCA, but later cases adopted a similar analysis for claims under § 905(b). In Davis v. Cargill, 808 F.2d 361 (5th Cir. 1986), the site of plaintiff's accident was a dry cargo barge, which had been converted to a permanently moored work platform from which painting and sandblasting services were provided to barges. The platform floated on the water but was anchored close to the shore and was moved only to accommodate changes in tide. The Fifth Circuit found that this work platform was sufficiently similar to the dry dock in Keller to be excluded from vessel status. While originally capable of transportation, it had since been converted into a stationary object, and was "no longer designed or used for navigation." Id. at 362; see also Kathriner v. UNISEA, Inc., 975 F.2d 657 (9th Cir. 1992) (finding that floating fish processing plant that had been moved once in fifteen years, and that had been hooked up to city utilities, was not a vessel for § 905(b) purposes); Ducrepont v. Baton Rouge Marine Enterprises, Inc., 877 F.2d 393, 395 (5th Cir. 1989) (reversing denial of summary judgment under § 905(b) claim; finding that barge used for repairing and cleaning ships, which was moored at the time of the accident, was not a vessel for § 905(b) purposes).
The common feature of this line of cases is that the putative vessels, irrespective of their capacity for navigation, have been moored close to the shoreline in order to serve as stationary work platforms. They are in effect extensions of land. The work to be completed, be it painting or repairing, is brought to the platform. The platform itself travels rarely, if at all, and then only to compensate for shifts in tide.
Not all floating structures which serve as work platforms are excluded from vessel status. Aircraft carriers, fishing boats, and cable-laying boats, for example, are work platforms in a very real sense. Yet no one would dispute their status as vessels. What distinguishes these vessels from the work platforms in Davis is that the former move people or equipment across water to the place where the work will be performed, while the latter are affixed close to the shoreline so that work may be brought to them. The transportation function of the moored barge in cases like Davis can be said to be truly incidental to its primary purpose of serving as work platform. However, where the floating contrivance must move over water to reach the work site, its transportation function may well be more than "incidental."
Cases which have denied vessel status to particular structures have involved situations in which vessels were brought to the work platform for repair or service. In the instant case, however, the crane was placed on the flexifloat barge, which was then navigated, however clumsily, across the water to the transmission towers. Both sides concede that the barge was able to move from the shore to the transmission towers, and from point to point along the towers. Thus, the barge appears to be "used, or capable of being used, as a means of transportation on water" as defined in § 3.
In cases factually similar to the one at bar, courts have denied summary judgment on the issue of whether the putative vessel qualified as a vessel under § 905(b). In Orgeron v. Avondale Shipyards, Inc., 561 So. 2d 38 (La. 1990), the plaintiff was injured when he fell into an opening created by adjoining barges that were used to transport men and materials along the slip of a ship repair yard. The Supreme Court of Louisiana adopted the Fifth Circuit "modified capabilities" test for vessel status: there must be a maritime situs and a significant relationship to traditional maritime activity, and the structure must be sufficiently mobile to serve some transportation function. Id. at 43; Ducrepont, 877 F.2d at 396. It found that, while the transportation function of the barges was incidental to their primary use as work platforms, they did have "some design features not common to fixed, stationary platforms." 561 So. 2d at 40. The barges were free floating, could be moved from place to place, and, because they could break loose from their moorings, were "subject to the perils of the sea." Id. These features distinguished the barges in Orgeron from the floating drydocks in Davis and Ducrepont, and rendered them vessels under § 905(b).
Similarly, the court in Gianelloni v. Great Lakes Dredge & Dock Co., 1993 U.S. Dist. LEXIS 12859, No. 92-2162, 1993 WL 360617 (E.D. La. Sept. 13, 1993) declined to find as a matter of law that crane barges were not vessels for purposes of § 905(b). Plaintiff had been injured twice while operating a crane on a "deck barge" or "crane barge" stationed along a portion of the Mississippi River. These barges were leased for the site, spudded to the river bottom, moved only 50 feet every two or three days, and kept on the site until the job was completed. Yet despite the paucity of movement, the court refused to find that the barges were not vessels under § 905(b), noting an absence of evidence concerning the transportation and function of the crane barges before and after the project. See also Bryant v. Gates Constr. Co., 735 F. Supp. 602 (D.Del. 1990) (same result on nearly identical facts); Texaco, Inc. v. Addison, 613 So. 2d 1193 (Miss. 1993) (same result in case involving welding barge used to repair offshore oil collection and storage facility). But see Lash v. Ballard Construction Co., 707 F. Supp. 461, 464 (W.D. Wash. 1989) (finding that timber-and-styrofoam "derrick barge" did not constitute a vessel under § 905(b), explaining that the platform was used "solely as a structure upon which to float a clamshell shovel so that it could do the required dredging work").
The analysis in DiGiovanni v. Traylor Brothers Inc., 1993 U.S. Dist. LEXIS 12548, No. 89-0369L, 1993 WL 344287 (D.R.I. Sept. 8, 1993) is particularly instructive. The injuries in that case occurred on a platform similar to the flexifloat, which was loaded with supplies and towed out to a construction barge on the Narragansett Bay. Defendants urged the court to adopt a Davis "floating platform" exception to the § 3 definition of vessel. The District of Rhode Island found that, even if such an exception were recognized, defendants had not demonstrated that the barges fit within the exception. In particular, the DiGiovanni court noted that the Davis line of cases involved barges that were more or less permanently moored, while the barge in that case was towed from place to place.
We adopt a similar analysis today. Even if the Third Circuit were to recognize an exception to § 3 for work platforms like that in Davis, it is unclear that the barge in this case would fall within the exception. Where the object is used in part as a work platform and in part as a means of transporting men and machinery across the water to a job site, we cannot say as a matter of law that it is not a vessel for the purposes of § 905(b) of the LHWCA.
D. What constitutes actionable negligence under Scindia v. De los Santos?
As discussed above, section 905(b) precludes suit against the employer as employer, but permits suit against the employer for negligence as owner/operator of the vessel. The seminal case in this area is the Supreme Court decision in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 68 L. Ed. 2d 1, 101 S. Ct. 1614 (1981), which involved a suit brought under the LHWCA. The plaintiff in that case worked for a stevedore employed by the defendant to unload the latter's vessel. While working in the ship's hold, the plaintiff was struck by cargo when a winch on the vessel failed to operate correctly.
The Supreme Court found that while there was no general duty under the LHWCA to supervise or inspect for dangerous conditions on board the vessel, the vessel or shipowner had a nondelegable duty (1) to maintain the ship's gear, equipment, tools, and physical work space in a condition that allows an experienced stevedore, acting with reasonable care, to conduct the cargo operations free from unreasonable risks; and (2) to warn the stevedore of hidden dangers that are or should be known to the vessel in the exercise of reasonable care and that are unknown to the stevedore and would not be obvious or anticipated by a stevedore performing reasonably competent work. Scindia; Derr v. Kawasaki Kisen K.K., 835 F.2d 490, 495 (3d Cir. 1987); Chaple v. Farrell Lines, Inc., No. 91-4841, 1992 WL 470240 (D.N.J. Oct. 9, 1992); McSwiggan v. Oulu Shipping Ltd., 1992 U.S. Dist. LEXIS 4959, Civ. A. No. 90-7001, 1992 WL 70416 (E.D. Pa. Mar. 31, 1992).
In addition, Scindia provided a second level of duty where the danger arises from the ship's gear being used in the cargo operations. Here, the vessel operator must warn of dangers if (1) the operator is aware of the danger, (2) he is aware that the stevedore is continuing to use the faulty equipment, and (3) the stevedore's judgment in using the equipment is "obviously improvident." 451 U.S. at 170, 172-76; see also Brown v. Philippine President Lines, Inc., 704 F. Supp. 606, 609 (E.D. Pa. 1989) ("Even this limited duty to intervene must be evaluated in terms of the vessel's reasonable reliance on the stevedore's exercise of professional judgment.").
The most recent Third Circuit pronouncement in this area is found in Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992), a case with some factual similarity to the one at bar. A longshoreman was unloading cargo from the defendant's ship when he and his fellow crew members became aware of an oil spill in the ship's hold. The crew continued to traverse the area of the slick without taking any action to clean it up. Plaintiff's shoes retained the oil from the hold and he ultimately slipped, badly injuring himself. He brought suit under the LHWCA, and the lower court granted summary judgment in favor of the shipowner.
The Third Circuit began by noting that
under Scindia, a shipowner is subject to liability for the dangers of longshore workers who fail to avoid an obvious danger only if the shipowner should have expected that the stevedore and its longshore workers could not or would not avoid the danger and conduct cargo operations reasonably safely. . . .
A shipowner will not ordinarily be liable to a longshore worker injured by an obvious hazard because the shipowner's duty is only to provide a workplace where skilled longshore workers can operate safely.
971 F.2d at 1026, 1029 (emphasis added). The court found that the stevedore and his longshore workers were aware of the slick, and that the crew could have avoided the danger (either by cleaning the mess or by directing an alternate route). Since the plaintiff in that case failed to present evidence that the defendant should not have assumed that the longshoreman would avoid the obvious danger, the grant of summary judgment was affirmed.
Kirsch stands for the proposition that, where an employee is aware of an obvious hazard and continues operations without doing anything to alleviate the risk caused by the hazard, and is injured by the hazard, the operator of the vessel is not liable under Scindia. In the case at bar, a factual dispute exists concerning whether plaintiff was aware that oil or lubricant was leaking in the particular hub into which he placed his foot. Summary judgment is therefore inappropriate in this motion.
III. Recovery for Consortium
Defendant also argues that Roberta Koernschild may not properly maintain a claim for loss of consortium after the Supreme Court's decision in Miles v. Apex Marine Corporation, 498 U.S. 19, 112 L. Ed. 2d 275, 111 S. Ct. 317 (1991). There, the mother of a seaman who had been stabbed to death by a crew member sued for lost income and loss of services. Citing limiting language in the Jones Act and the Death on the High Seas Act,
the Supreme Court held that there was no recovery for loss of society in a Jones Act wrongful death action.
However, Miles involved claims under the Jones Act and general maritime law. The appropriate starting point for the consideration of whether the LHWCA allows recovery for loss of consortium is the earlier Supreme Court decision in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1974). Gaudet concerned a wrongful death action brought by the widow of a longshoreman who had allegedly died from injuries obtained while in navigable waters. The Court found that she could properly maintain a suit for "the loss of support, services, and society." Id. at 584. The holding was extended six years later, in American Export Lines v. Alvez, 446 U.S. 274, 64 L. Ed. 2d 284, 100 S. Ct. 1673 (1980), to cover loss of consortium for non-fatal injuries under general maritime law.
Miles distinguished Gaudet by observing that: "The holding in Gaudet applies only in territorial waters, and it applies only to longshoremen." Miles, 498 U.S. at 31. However, because Miles did not address the holding in Alvez, it left unanswered whether the Gaudet analysis or the Miles analysis is appropriate for cases involving non-fatal injury to a longshoreman. See Murray v. Anthony J. Bertucci Construction Co., 958 F.2d 127, 130-31 (5th Cir. 1992) ("Miles must have, at least implicitly, placed the same restriction [i.e., only to longshoremen and only in territorial waters] on Alvez because that opinion merely extended Gaudet to personal injury actions."). A panel of the Superior Court of New Jersey, Appellate Division, found that "Section 905(b) preserves a common-law cause of action; it does not create one. Moreover, absent a statute-created limitation, court will not bar the right of a dependent to bring a derivative claim." Fanoli v. Sea-Land Services, 251 N.J. Super. 443, 598 A.2d 911 (App. Div. 1991) (citing Gaudet).
Because we do not read Miles as barring a longshoreman injured in territorial waters from asserting a loss of consortium claim, we will deny defendant's motion as to Roberta Koernschild's individual claim.
For the reasons set forth above,
IT IS on this 20th day of October, 1993,
ORDERED THAT defendant's motion to dismiss and, in the alternative, for summary judgment be, and the same hereby is, DENIED as to all claims.
JOSEPH E. IRENAS, U.S.D.J.