Delange v. Dutra Construction, Co.

183 F.3d 916
Court of Appeals for the Ninth Circuit·Decided March 16, 1999·No. No. 96-17270·Published·Cited by 35 cases

Opinion

ORDER

The request for publication is granted. The Memorandum filed March 16, 1999, is redesignated as a per curiam opinion.

OPINION

PER CURIAM.

Brian Louis Delange (“Delange”) appeals the district court’s grant of summary judgment for Dutra Construction Co., Inc. (“Dutra”). We affirm in part, reverse in part, and remand.

I.

Dutra hired Delange out of a carpenter’s union as a carpenter. His actual duties included mechanical work, welding, carpentry, supply runs, and occasionally pile-driving. Delange was not permanently or regularly assigned to the crew of a barge or tug used in Dutra’s construction projects, but when a barge was being moved Delange occasionally performed work typically done by deckhands, securing and stowing cargo, handling lines, and serving as a lookout. On one occasion, Delange piloted a tug.

On the day Delange was injured, he was assigned to a piledriving crew engaged in the construction of a navigation aid. He and a co-worker, Jess Jackson, rode to the construction site on a barge to be used as a work platform. The barge was towed by a tugboat.

Delange was responsible for keeping the barge’s equipment secure while the barge was in transit. When the barge arrived at the construction site, the captain ordered Delange and Jackson to release a “spud” — ■ a cylindrical anchoring device dropped through an opening in the deck of the vessel by removing pins passing horizontally through the spud. Jackson used a winch to lift the spud slightly to permit removal of the pins. Delange encountered difficulty while attempting to remove one of the pins, and signaled Jackson to lower [919]*919the spud. Delange’s fingers were crushed when the spud descended.

Delange brought suit against Du-tra under the Jones Act and the Long-shore Harbor Workers Compensation Act (“LHWCA”). The district court granted summary judgment for Dutra on both claims. We affirm summary judgment for the defendant on the LHWCA claim, but remand the Jones Act claim for further proceedings.2

II.

The Jones Act provides a remedy for “any seaman” injured “in the course of his employment.” 46 U.S.C. § 688. The issue of seaman status under the Jones Act “is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury.” Harbor Tug & Barge Co. v. Papai, 620 U.S. 548, 554, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). Summary judgment is appropriate only if “the facts and the law will reasonably support only one conclusion.” McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991).

A plaintiff is a Jones Act seaman only if (1) his duties contribute to the function of the vessel or to the accomplishment of its mission, and (2) he has a connection to a vessel in navigation that is substantial both in duration and in nature. See Cabral v. Healy Tibbits Builders, Inc., 128 F.3d 1289, 1292 (9th Cir.1997) (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)). The district court found that Delange failed to satisfy either requirement.3 We conclude that Delange raised a triable issue of fact as to his status as a seaman and remand for further proceedings.

A.

Relying on Heise v. Fishing Co. of Alaska, Inc., 79 F.3d 903 (9th Cir.1996), the district court determined that Delange failed to satisfy the requirement that his duties contributed to the function of the vessel or to the accomplishment of its mission because the ultimate purpose of his work was to perform tasks relating to construction, not to contribute to the function of the tug or the barge. Heise involved a worker hired “only as a temporary laborer and only for the duration of the repairs and maintenance” of a fishing vessel, who was injured on the vessel while receiving and securing the vessel’s mooring lines. See id. at 905-06. Heise acknowledged that the requirement that the employee’s duties contribute to the function of the vessel or to the accomplishment of its mission was “very broad,” but none[920]*920theless concluded that the plaintiff was a “land-based worker” who did not qualify for seaman status under the Jones Act. See id. at 906-07.

Unlike the plaintiff in Heise, however, Delange worked directly “ ‘in the service of a ship.’ ” Chandris, 515 U.S. at 368, 115 S.Ct. 2172 (quoting Wilander, 498 U.S. at 354, 111 S.Ct. 807). He served in various deckhand capacities while the barge was being moved and also assisted in the pile-driving carried out from the barge. A jury could reasonably conclude from this evidence that Delange contributed to the barge’s mission. See Cabral, 128 F.3d at 1292 (the plaintiffs duties as a crane operator “unquestionably contributed to Barge 538’s function as a crane barge”).

B.

The district court concluded that Delange was a land-based worker, not a member of the barge’s crew, which is the “ultimate inquiry” in determining whether his connection to the barge was substantial in duration and nature. See Chandris, 515 U.S. at 370, 115 S.Ct. 2172.

A maritime worker’s connection to vessel in navigation is substantial if his duties are inherently vessel-related and thus “take him to sea.” Papai, 520 U.S. at 555, 117 S.Ct. 1535. Papai held that a Jones Act plaintiff who had been hired to perform a one-day painting job aboard a tug established “the sort of ‘transitory or sporadic’ connection to a vessel or group of vessels that ... does not qualify one for seaman status.” Id. at 560, 117 S.Ct. 1535 (quoting Chandris, 515 U.S. at 368, 115 S.Ct. 2172). Similarly, this court recently held that a crane operator working aboard a crane barge did not satisfy the substantial connection test because his work was not “primarily sea-based”: he was hired as a crane operator and not as a crew member, worked on the vessel (a specialized barge) only when it was stationary, and failed to show that he would continue to work on the barge after the project was completed. See Cabral, 128 F.3d at 1293.

Unlike the plaintiffs in Papai and Cabral, Delange stated in his affidavit that during his five-month employment with Dutra, “a big part” of his job was to serve as a lookout, cargo stower, line handler, and occasional pilot when the barge was being moved-all of which are clearly seaman’s duties-and only devoted 10% of his time to carpentry. He also stated that more than 80% of his time was spent on-board the barge, where “most” of the work involved crewman and deckhand duties. Although the barge moved only four times during that period of time, “[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a ‘member of the crew,’ it is a question for the jury.” Wilander, 498 U.S. at 356, 111 S.Ct. 807; see also Chandris, 515 U.S. at 369, 115 S.Ct.

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Delange v. Dutra Construction, Co., 183 F.3d 916 (9th Cir. 1999).

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