Opinion
In Admiralty CV-05-1157-ST.
March 21, 2006
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
Plaintiff, Shannon Phillips ("Phillips"), suffered injuries to his shoulder on July 27, 2003, while working as a Tankerman on board the vessel, Barge No. 2 ("Barge 2"), owned by defendant Tidewater Barge Lines, Inc. ("TBL"). Phillips filed this action on July 25, 2005, alleging five claims against TBL and its subsidiary, Tidewater Terminal Co. ("TTC"). On October 24, 2005, Phillips filed a First Amended Complaint naming only TBL and Barge 2 as defendants and asserting six claims for: (1) negligence under the Jones Act, 33 USC § 688 (First Claim); (2) breaching a duty of care owed under the Longshore Harbor Workers' Compensation Act ("LHWCA"), 33 USC § 905(b) (Second Claim); (3) unseaworthiness (Third Claim); (4) general maritime negligence (Fourth Claim); (5) state common law negligence (Fifth Claim); and (6) violation of the Oregon Employer Liability Act ("OELA"), ORS Chapter 654 (Sixth Claim).
This court has original jurisdiction over admiralty and maritime claims under 28 USC § 1333, jurisdiction under the Jones Act, 46 USC § 688, and supplemental jurisdiction over the state law claims under 28 USC § 1367(a).
Defendants have filed a Motion for Partial Summary Judgment (docket #12) against each of Phillips's claims, except the Second Claim for Relief brought under the LHWCA. Phillips responded with a Cross Motion for Partial Summary Judgment (docket #20). The central dispute in these motions is whether Phillips was a "seaman" for purposes of his Jones Act and unseaworthiness claims. Phillips contends that his status as a federally-licensed Tankerman, combined his actual job duties while working in that capacity, entitle him to summary judgment on that issue. Defendants contend that the evidence will only reasonably support the conclusion that Phillips was a land-based maritime worker which limits him to a remedy against them only under the LHWCA. Additionally, defendants argue that, even if Phillips has presented sufficient evidence to avoid summary judgment on the seaman status issue, he was not employed by TBL and, therefore, cannot sue TBL under the Jones Act or for unseaworthiness. Defendants further contend that Phillips has no separate maritime or state law negligence claim and that the OELA claim is preempted by the LHWCA.
For the reasons that follow, this court finds TBL was not Phillips's employer, entitling defendants to summary judgment against the Jones Act claim. However, issues of fact preclude summary judgment concerning his seaman status, such that summary judgment is not appropriate as to the unseaworthiness claim. This court also concludes that defendants are entitled to summary judgment against Phillips's Fourth Claim for general maritime negligence as to both defendants and Fifth Claim for negligence against Barge 2.
STANDARDS
FRCP 56(c) authorizes summary judgment if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id. at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F3d 1047, 1054 (9th Cir 1999) (citation omitted). A "` scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9th Cir), cert denied, 493 US 809 (1989) (emphasis in original) (citation omitted).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F2d 626, 631 (9th Cir 1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id. (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 631.
UNDISPUTED MATERIAL FACTS
The fact statements and other materials submitted by the parties, including affidavits, declarations, and deposition excerpts, reveal the following:
Citations to affidavits and depositions are identified by the last name of the affiant or deponent, and citations are to the paragraph(s) of the affidavit or page(s) of the deposition transcript.
TBL is TTC's parent corporation. In July 2003, TBL owned a fleet of approximately nine petroleum barges and a dozen fertilizer barges that transported materials up and down the Columbia and Snake Rivers. Phillips Decl, ¶ 8. The barges are not self-propelled and are moved up and down the river with the assistance of a tug and pilot crew, which typically includes a pilot, captain, and three deckhands. Id, ¶ 14. The services of a licensed Tankerman are necessary to offload cargo from barges in TBL's fleet at one of three different terminals operated by TTC or at a fourth terminal operated by Chevron. Id, ¶ 9.
Some time prior to March 1999, Phillips applied for employment with TBL, although he was apparently hired by TTC, rather than by TBL. Id, ¶ 3. In March 1999, Phillips began working as a Tankerman in training. Id. In 2001, after two years of training, Phillips received his Merchant Mariner's license from the United States Coast Guard as "Tankerman PIC (Barge — Dangerous Liquids)," with a secondary classification of ordinary seaman wiper. Id, ¶ 2 Ex A. TBL assisted Phillips in obtaining the license by certifying that he had completed the necessary work. Id, ¶ 3. The work of a licensed Tankerman is federally regulated under 33 CFR Parts 155-156 and 46 CFR Part 35.
Phillips is an employee of TTC when serving as a shore-based Dockman and Terminal Operator. After he obtained his Tankerman's license and through the date of his injury, he spent "substantially most" of his time on board vessels on the water performing the work of a licensed Tankerman. Id, ¶ 7. When he accepted a vessel on which to serve as a Tankerman, his status changed with respect to the vessel and its owner to the "Person In Charge" (PIC) of that vessel, a status which he contends (and defendants dispute) is equivalent to the Captain of the ship. Id, ¶¶ 4-5. Once on board as a licensed Tankerman, no one, including the United States Coast Guard or employees of TBL or TTC, can step on board unless the PIC first grants permission. Id, ¶ 6. Upon accepting a vessel, Phillips was required to complete a Declaration of Inspection under 33 CFR § 156.150 and 35 CFR § 35.35-30 and declare in writing that the barge was fit for lightering dangerous liquids. Id, ¶¶ 10-11 Exs C-D.
Although not part of the record, Phillips's submitted at oral argument that, according to his time records, he spent 70-80% of his time as a Tankerman on board barges, well over the presumptive 30% level for duration of time on board a vessel set by Chandris, Inc. v. Latsis, 515 US 347 (1995).
The barges are typically brought into the dock bow upstream and landed first on a dolphin mooring or cell above the dock. Jensen Supp Aff, ¶ 7. The barge is then worked into a line until it is close enough to the dock or other dolphins or cells to catch other lines. Id. The only way to board the barge is be to step or jump across from the dock to the barge. Id. Although Phillips sometimes would arrive to find the barge already at the dock, he and other tankermen routinely assisted the tug's deckhands in mooring the barge. Phillips Decl, ¶ 9. He was trained to assist in mooring and did so about 70% of the time while serving as a Tankerman. Id, ¶¶ 9, 14-15. In that regard, he assisted the pilot crew in tying off the barges while they were under power in order to ensure that they were moored correctly in the right spot at the terminal. Id, ¶ 14. The tow boat crews often needed assistance because only one or two deckhands would be awake, as well as the boat operator or captain. Id, ¶ 15.
During the loading and offloading which lasted anywhere from 3.5 to 4.0 hours, Phillips was required to check and adjust from six to 14 mooring lines per barge every 15 to 25 minutes to ensure a proper draft because of the river currents. Id, ¶¶ 16-17, 21. His Tankerman duties required him to walk around the outboard region of the barges several times, leaning over and looking into the river for a sheen on the water which would indicate a leak of petroleum. Id, ¶ 24. He wore a life jacket 50-100% of the time, depending on the type of barge. Id, ¶ 22. He also had to maintain and display a red flag on the barge when pumping during the day and a red navigation light when pumping at night. Id.
During the transfer of liquid products, he physically turned between an estimated 44 and 80 valves per vessel, turning anywhere between 10 and 40 times each valve to accomplish the task. Id, ¶ 18. The operating and transfer procedures for all of TBL's vessels are governed by federal regulation and written directives published by TBL. Id, ¶¶ 10, 19 Exs C-E.
Tankermen are trained in lightering (loading and offloading). If done improperly, lightering can compromise the structural integrity of the barge and affect the vessel's navigability. Id, ¶¶ 20-21.
According to Phillips, lightering includes not only ship-to-ship loading, but also includes the work of federally-licensed tankermen loading and off-loading petroleum and liquid fertilizer products on board at the terminals at issue.
TTC required Phillips to maintain meticulous time records when performing Tankerman work. Id, ¶ 12. His services as a PIC were then passed on and either billed directly to TBL for all Tankerman work performed at the three terminals or billed directly to Chevron under a separate contract for Tankerman work performed on board vessels at Chevron's terminal. Id. When traveling to serve as Tankerman from his home base of Pasco, Washington, TBL reimbursed Phillips for his travel costs and expenses directly by way of a check. Id, ¶ 13.
Following his injury, Phillips received LHWCA benefits from TTC's insurer. Jensen Aff, ¶ 8.
DISCUSSION
I. Jones Act Claim (First Claim)
Defendants contend that Phillips was a land-based maritime employee and, therefore, is not entitled to compensation under the Jones Act which applies only to a "seaman." 46 USC § 688 ("Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury . . ."). In addition, defendants assert that Phillips may not maintain a Jones Act claim against TBL which was never his employer. This court finds genuine issues of fact preclude summary judgment as to whether Phillips was a seaman, but also finds that TBL was not his employer.
A. Seaman Status
The central dispute presented in the parties' cross-motions is whether Phillips was a seaman while performing his duties as a licensed Tankerman on TBL's barges. The answer to that question determines the remedies to which he is entitled.
1. Mutually Exclusive Remedial Schemes
The Jones Act, enacted in 1920, "provides a cause of action in negligence for `any seaman' injured in the course of his employment.'" Chandris, Inc. v. Latsis, 515 US 347, 354 (1995), quoting 46 USC § 688(a). After the Supreme Court held in Int'l Stevedoring Co. v. Haverty, 272 US 50 (1926), that the Jones Act covered longshoremen who were injured on vessels in navigable waters while engaged in loading or discharging cargo, Congress enacted the LHWCA to remove longshoremen and harbor-workers from the coverage of the Jones Act. The LHWCA "provides scheduled compensation (and the exclusive remedy) for injury to a broad range of land-based maritime workers," but "explicitly excludes from its coverage `a master or member of a crew of any vessel.'" Chandris, 515 US at 355, quoting 33 USC § 902(3)(G). The Supreme Court has equated "master or member of a crew of any vessel" under the LHWCA with a "seaman" under the Jones Act. See McDermott Int'l v. Wilander, 498 US 337, 347-48 (1991). As a result, the Jones Act and the LHWCA are "mutually exclusive compensation regimes." Chandris, 515 US at 355-56. Thus, if Phillips is a "seaman" or "master or member of a crew," then he can sue his employer under the Jones Act; if not, his sole remedy against his employer is under the LHWCA.
Those individuals covered by the LHWCA include any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. 33 USC § 902(3).
The dual capacity doctrine is an exception to this mutual exclusivity. An injured worker may be a Jones Act seaman even if he is also a harbor worker performing a job specifically enumerated in the LHWCA. For example, an injured ship repairman whose occupation is specifically enumerated in the LHWCA may also sue his employer under the Jones Act if he is a seaman and if his employer owns the vessel. Southwest Marine, Inc. v. Gizoni, 502 US 81, 89 (1991) ("By its terms the LHWCA preserves the Jones Act remedy for vessel crewmen, even if they are employed by a shipyard. A maritime worker is limited to LHWCA remedies only if no genuine issue of fact exists as to whether the worker was a seaman under the Jones Act."). In that event, the LHWCA and Jones Act recoveries are offset against one another to avoid a double recovery.
The Jones Act does not define the term "seaman," instead leaving the courts to determine which maritime workers are entitled to its protection. Id. at 355. The requirement that a seaman be aboard the vessel "primarily to aid in navigation" was "jettison[ed]" by the Supreme Court in 1991. McDermott International, Inc. v. Wilander, 498 US 337, 353 (1991). Jones Act remedies are available to traditional seamen who owe allegiance to a vessel at sea, but who do not aid in navigation. Id. at 354.
In Chandris, the Supreme Court developed a "status-based standard" which sets forth two "essential requirements:" (1) the employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) the employee 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, 515 US at 368. The first of these requirements is "very broad," and renders "[a]ll who work at sea in the service of a ship" eligible for seaman status. Id. (internal quotations omitted). The second requirement of a "substantial connection" is designed to "separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the peril of the sea." Id. The "ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time." Id. at 369.
The job title is not determinative. See Sologub v. City of New York, 202 F3d 175, 181 (2nd Cir 2000) ("That the City classified as "deckhands" those assigned to terminal duties does not convert a land-based employee to a seaman.") Instead, a seaman's status depends on "what connection the employee had in actual fact to vessel operations." Harbor Tug and Barge Co. v. Papai, 520 US 548, 559 (1997) (" Papai"). To make that determination, "the total circumstances of an individual's employment must be weighed." Chandris, 515 US at 369 (citation omitted). Therefore, the question of seaman status cannot be resolved by either looking at the place of the alleged injury nor by reference to the particular work the injured worker was performing at the time. "[A] worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured." Id. at 363. "Thus, land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA . . . [and] do not become seamen because they happen to be working on board a vessel when they are injured." Heise v. Fishing Company of Alaska, Inc., 79 F3d 903, 906 (9th Cir 1996).
The "seaman inquiry is a mixed question of law and fact and it often will be inappropriate to take the question from the jury." Papai, 520 US at 554. However, summary judgment on a particular employee's seaman status is mandated where the facts and the law will reasonably support only one conclusion. Id. 2. Whether Phillips was a Seaman
In this case, it is undisputed that Phillips's work as a Tankerman meets the first part of the two-part Chandris test that his duties must contribute to the function of the vessel or to the accomplishment of its mission. Defendants concede that Phillips's job as a Tankerman was essential to the barge's performance of its intended mission. It is the second part of the two-part inquiry that is the focus of the parties' cross-motions, namely whether his connection to a vessel or to an identifiable group of such vessels in navigation was substantial both in terms of duration and nature.
A Jones Act seaman need not be assigned to a specific vessel, but may be assigned to a group of Jones Act vessels under common ownership or control. Papai, 520 US at 556. There is no dispute in this case that TBL's barges are an identifiable fleet of vessels under common ownership or control.
Defendants concede that a barge is a vessel in navigation and that Phillips had a substantial connection to a fleet of barges in terms of duration. However, they dispute that Phillips had an "employment-related connection" to a fleet of barges that was "substantial in terms of . . . its nature." Chandris, 515 US at 368-69. Phillips focuses attention on the federal regulatory scheme under which Tankermen operate, while TBL focuses attention on the fact that Phillips worked only on moored barges which he boarded from a dock and, as a result, was never exposed to the "peril of the sea," as required by Chandris, 515 US at 368.
As recognized by Chandris, Phillips's status cannot shift back and forth from a land-based maritime worker when he worked on the dock as a Dockman or Terminal Operator to a seaman when he worked on the barges as a Tankerman. Instead, the totality of the circumstances surrounding Phillips's employment, both on and off the barges, must be considered in order to properly classify him. In that regard, the amount of performed on the barges by Phillips is particularly relevant to determining his temporal connection to the barges, but not necessarily to determining the nature of his connection.
Assessing the nature of his work on the barges, the main distinguishing factor in this case is that Phillips loaded and unloaded cargo from barges moored alongside a dock. Unlike a crew member on a vessel, Phillips did not eat or sleep on the barges, did not travel or participate in any voyage of any barge, and performed no navigational functions other than assisting in the mooring. The loading and unloading of vessels is classic land-based longshoreman work. A longshoreman does not become a seaman simply by stepping onto a vessel to load and unload cargo.
Yet while Phillips never worked aboard a barge in transit, being at sea is not dispositive in the determination of seaman status. A vessel is still considered to be in navigation even when temporarily moored. Chandris, 515 US at 373-74 ("[I]t is generally accepted that a vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside . . even when the vessel is undergoing repairs.") (internal quotations and citation omitted). Phillips's forays onto vessels were certainly more than sporadic or infrequent. While working on board the barges for "substantially most" of his time as a Tankerman, he was exposed to the risk of falling overboard while checking and adjusting mooring lines and navigational lights. Such duties are normally performed by deckhands. Furthermore, he worked as the Tankerman PIC and did not take orders from any land-based foreman.
Both parties point to cases supporting their respective positions. However, the determination of seaman status is inherently fact intensive. The cases draw no bright line rule in determining whether an injured worker is substantially connected to a vessel. This only makes sense given the myriad circumstances in which work is performed upon vessels in navigation. While some of the facts in those case may be similar to some facts here, case, the totality of the circumstances are distinguishable in each case.
Phillips points to In re Endeavor Marine, Inc., 234 F2d 287 (5th Cir 2000), which held that a crane operator on a barge unloading cargo from vessels in the Mississippi River was a seaman under the Jones Act. The court held that it was not necessary that the duties of a seaman literally carry him to sea; rather, he need only be "regularly exposed to the perils of the sea." Id. at 292. However, unlike the crane operator in that case, Phillips did not work on barges moored to cargo vessels in a river, but instead worked only on moored barges which he primarily accessed from a dock. As a result, he was not exposed to the common hazards of open waters, such as high seas, storms, and possible collisions with other vessels. He may have been exposed to such dangers as falling off a barge, cargo operations, slippery decks, a sinking vessel, and fire, but was not far away from assistance onshore.
To TTC's knowledge, no Tankerman has ever fallen into the river while working for TTC. Jensen Supp Aff, ¶ 11.
In Gulasky v. Ingram Barge Co., 2006 WL 119381 (WD Ky Jan 10, 2006), a welder fell from a ladder while climbing out of a barge floating on the Monogahela River. Although he often worked on barges tied together with rope lines which potentially exposed him to tripping hazards and falling overboard, the court denied summary judgment, leaving it to the fact-finder to determine whether or not Gulasky was exposed to the perils of the sea. By always working near a dock, Phillips was not exposed to the same level of perils of the sea as Gulasky, making the inquiry even more appropriate for the fact-finder.
Southwest Marine, Inc. v. Gizoni, 502 US 81, 89 (1991), is similarly distinguishable. The Supreme Court found issues of fact as to whether a rigging foreman for a ship repair facility was a seaman. He worked on and rode floating platforms as they were towed into place, occasionally serving as a lookout and receiving lines. It is debatable whether working on a moored (or about to be moored) barge poses the same dangers as riding on floating platforms. Even it is does, this case points to the propriety of having a fact-finder resolving the ultimate issue.
On the other side of the ledger, defendants point to Cabral v. Healy Tibbits Builders, Inc., 128 F3d 1289 (9th Cir 1997), cert denied, 523 US 1133 (1998), which held that a crane operator who was injured while working aboard a crane barge was not a seaman under the Jones Act. However, it is not clear whether the court reached this conclusion due to an insubstantial connection to the barge in terms of duration or nature. It noted that Cabral "had only a transitory or sporadic connection with Barge 538," that he was not aboard when the crane was not used, and that he would not continue to work aboard the Barge 538 after the project was completed, which pointed to "one conclusion: that was a land-based crane operator who happened to be assigned to a project which required him to work aboard Barge 538." Id. at 1293. Here, in contrast, Phillips had a substantial connection to TBL's fleet of barges in terms of duration. By not specifically addressing whether the crane operator was regularly exposed to the perils of the sea, Cabral is unhelpful.
Similarly, Papai, also cited by defendants, is unhelpful because it relied only on the short duration of a one-day job by a deckhand painting a vessel at dockside.
Other courts have concluded that workers injured on moored barges do not have seaman status under the Jones Act. In Schultz v. Louisiana Dock Co., 94 F Supp2d 746, 749 (ED LA 2000), a worker employed at a barge repair facility spent more than 40% of his time working on floating, moored barges and 40% of his time being transported up and down the river on tugboats to reach barges. The court granted summary judgment with respect to seaman status, explaining:
Regardless of whether plaintiff spent one percent or 100 percent of his time performing repair work on barges brought to the facility for repair, working from vessels . . . or being transported around the facility by vessels, the aggregation of circumstances speaking to the nature of his work and his connection to any identifiable vessel(s) demonstrate that, as a matter of law, he is not a seaman. None of plaintiff's work was of a seagoing nature. . . . He did not go to sea or face the perils of the sea in the manner associated with seaman status.Id.
Similarly in Richard v. Mike Hooks, Inc., 799 So2d 462, 467 (La 2001), cert denied, 535 US 1018 (2002), the court denied seaman status on summary judgment to a tacker/welder's helper employed in a dockside yard who spent more than 30% of his time repairing vessels dockside. Despite the testimony of an expert that Richard faced the perils of the sea, the court relied on the following facts to conclude that he was a land-based employee:
[A]ll of the vessels on which plaintiff worked were dockside; he was never more than a gangplank's distance from shore when working on the vessels; some of the vessels were partially on land while being repaired; he never slept on the vessels; he did not eat on the vessels; he did not keep watch on vessels overnight; he was not a member of Hooks's dredge crew that performed welding on dredges in operation; he never worked on a vessel while it was performing its primary mission; he took his orders from a land-based foreman; he was only aboard small moving vessels once every month, for short durations, where he assisted in moving dredge pipe along a canal adjacent to Hooks's yard; and his repair duties did not take him to sea.Id. at 466-67.
Relying on these case, Saienni v. Capital Marine Supply, Inc., 2005 WL 940558 (ED La April 18, 2005), also granted summary judgment on the seaman status issue against a shoreside mechanic who spent about 20% of his time performing work aboard vessels generally moored at a dock, shipyard, or other stationary position. Because the vessels had their own crews, he did not serve as a deckhand and reported directly to a shore-based engineer.
Although these cases are quite close factually to this case, they are not identical. In contrast, Phillips did not work aboard a series of unrelated vessels, but only worked aboard a fleet of barges owned by TBL. In other words, he was permanently or regularly assigned to TBL's barges. He also routinely performed deckhand duties when assisting in the mooring of the barges and when maintaining the draft of the barges during loading and unloading and, as the PIC, he did not take orders from any land-based foreman.
In sum, this case defies simple categorization and falls between the two extremes of a crew member versus a longshoreman where reasonable minds may reasonably differ. Given the conflicting inferences which may be drawn, this court concludes that whether Phillips was a seaman must be resolved by the trier of fact. See DeLange v. Dutra Const. Co., 183 F2d 916 (9th Cir 1999) (finding fact issues precluding summary judgment on seaman status of plaintiff who performed crew/deckhand duties 80% of his time on a barge which only moved four times in five months).
Nevertheless, as discussed next, even if Phillips is a seaman, this court also concludes that because he was not employed by TBL, he cannot sue TBL under the Jones Act.
3. Whether TBL was Phillips's Employer
The Jones Act provides a remedy for "any seaman who shall suffer personal injury in the course of his employment." 46 USC § 688(a) (emphasis added). Thus, as a prerequisite to recovery under the Jones Act, Phillips must establish an employment relationship with TBL.
However, "the word `employment' should be construed so as to give protection to seamen for torts committed against them by those standing in the proximate relation of employer, and the rules of private agency should not be rigorously applied. Yet this Court may not disregard the plain and rational meaning of employment and employer to furnish a seaman a cause of action against one completely outside the broadest lines or definitions of employment or employer." Cosmopolitan Shipping Co. v. McAllister, 337 US 783, 790-791 (1949). While the Ninth Circuit acknowledges that there "is no settled set of criteria for determining whether a Jones Act employment relationship exists, the Supreme Court has indicated that `[o]ne must look at the venture as a whole. Whose orders controlled the master and the crew? Whose money paid their wages? Who hired the crew? Whose initiative and judgment chose the route and the ports?'" Glynn v. Roy Al Boat Mgmt. Corp., 57 F3d 1495, 1499 (9th Cir 1995), cert denied, 516 US 1046 (1996), quoting Cosmopolitan Shipping Co., 337 US at 795. To determine the degree of control the alleged employer exerts over the employee, the Third Circuit looks to "factors such as payment, direction, supervision, and source of the power to hire and fire." Id, citing Matute, 931 F2d at 236.
The burden of proof to establish the employment is upon the seaman or his representative. Osland v. Star Fish Oyster Co., 118 F2d 772, 773 (5th Cir), cert denied, 314 US 615 (1941). "Whether an `employer-employee relationship' exists is also usually a question of fact that should go to the jury, `if there is an evidentiary basis for its consideration.'" Omar v. Sea-Land Serv., Inc., 813 F2d 986, 988 (9th Cir 1987) (citation omitted).
Phillips acknowledges that he was an employee of TTC — not TBL — when he was serving as a shore-based Dockman and Terminal Operator. Plaintiff's Statement of Supplemental Facts, ¶ 5. TTC directed his work, supervised him, and paid his salary. Jensen Aff, ¶ 2; Jensen Supp Aff, ¶ 10. TTC purchased LHWCA insurance for Phillips through the State Accident Insurance Fund. Jensen Aff, ¶ 8. Although the president of TBL is consulted regarding hiring and firing decisions, TTC generally makes such decisions regarding its employees. Id, ¶ 3.
Although Phillips concedes that TTC had overall authority to hire and fire him, he disputes that TTC had that authority while he was working as a Tankerman on board a vessel. However, TTC has submitted evidence that Tankermen are subject to supervision from the Terminal Supervisor who is authorized to interrupt a transfer or place a substitute Tankerman on any vessel. Jensen Supp Aff, ¶ 10. Even if the regulations make Phillips the PIC of the vessel while on board, he could still be removed from the vessel by TTC.
The only other facts offered by Phillips in support of TBL as his employer while performing Tankerman duties are that: (1) TBL certified his completion of training; (2) TBL paid his travel, meal, and lodging expenses; and (3) TBL is the subsidiary of TTC. None of these facts is sufficient to avoid summary judgment.
Although TBL certified the completion of Phillips's training, the "vast majority" of his training for Tankerman and Terminal Operator was performed by TTC employees for which TTC management was responsible. Jensen Supp Decl, ¶ 3. Although TBL may have paid Phillips directly for his travel expenses, TTC paid his salary. Furthermore, the parent/subsidiary relationship between TTC and TBL alone is immaterial. "Ownership by one corporation of the stock in another corporation, either directly or through a subsidiary, is simply not a sufficient legal basis, in and of itself, to disregard corporate entities." Banegas v. United Brands Co., 663 F Supp 198, 201 (D SC 1986). More is needed to substitute TBL as Phillips's employer, such as evidence sufficient to pierce the corporate veil of TTC. See Claussen v. Gulf Oil Corp, 136 F Supp 110, 113 (WD Pa 1955) (insufficient evidence to pierce the corporate veil from the wholly owned subsidiary to the parent for purposes of the Jones Act). Phillips has offered no such evidence nor any evidence sufficient to find that he was a borrowed servant of TBL or that TBL and TTC were in a joint venture.
Because there is no evidentiary basis for concluding that Phillips was employed by TBL, instead of TTC, TBL is entitled to summary judgment on the Jones Act claim for that reason alone.
II. Unseaworthiness Claim (Third Claim)
Claims for unseaworthiness are expressly precluded with respect to land-based maritime workers under the LHWCA. 33 USC § 905(b). However, a Jones Act seaman may sue the owner of the vessel on which he is working for breach of the warranty of unseaworthiness. 33 USC § 905(b); Miles v. Apex Marine Corp., 498 US 19, 29 (1990) ("The Jones Act . . . does not disturb seamen's general maritime claims for injuries resulting from unseaworthiness.").
If the fact-finder concludes that Phillips is a seaman, then he may pursue his claim for unseaworthiness against TBL as the vessel owner, even though TBL is not his employer. Given the issue of fact concerning Phillips's seaman status, as discussed above, defendants are not entitled to summary judgment against the Second Claim for unseaworthiness.
III. General Maritime and State Law Negligence Claims (Fourth and Fifth Claims)
Defendants seek summary judgment against the Fourth and Fifth Claims alleging maritime negligence and state common law negligence because they are redundant with the admiralty claims. At oral argument, Phillips clarified that he does not intend to pursue these claims if he is a seaman. However, if he is found not to be a seaman, then he intends to pursue the Fourth and Fifth claims as alternatives to the LHWCA claim. Thus, the issue is whether the LHWCA precludes these negligence claims.
Phillips contends that these claims are in personam against TBL and do not conflict with federal admiralty law, citing Ghotra v. Bandila Shipping, Inc., 113 F3d 1050 (9th Cir 1997), cert denied, 522 US 1107 (1998). In Ghotra, a marine surveyor was killed while working on board a vessel. His family brought suit in rem against the vessel based on admiralty jurisdiction and also filed in personam claims for common law negligence, gross negligence, and negligence under the LHWCA against the charterer and vessel owners based on diversity jurisdiction. One of the issues was whether the district court erred by denying the right to a jury trial for the in personam claims based on diversity jurisdiction. Despite the apparent grant of exclusive federal jurisdiction over admiralty and maritime cases by 28 USC § 1333(1), the "savings to suitors" clause in that statute "leave[s] state courts `competent' to adjudicate maritime causes of action in proceedings `in personam', that is, where the defendant is a person, not a ship or some other instrument of navigation." Id. at 1054, quoting Madruga v. Superior Court of State of Cal., 346 US 556, 560-61 (1954). As a result, a plaintiff alleging in personam maritime claims has three choices:
He may file suit in federal court under the federal court's admiralty jurisdiction, in federal court under diversity jurisdiction if the parties are diverse and the amount in controversy is satisfied, or in state court. The difference between these choices is mostly procedural; of greatest significance is that there is no right to jury trial if general admiralty jurisdiction is invoked, while it is preserved for claims based in diversity or brought in state court. The same substantive law pertains to the claim regardless of the forum, a type of "reverse-Erie" to ensure the uniform application of admiralty law.Id. at 1055-56 (citations omitted).
Because the negligence claims were in personam maritime claims that could have been brought at common law based on diversity jurisdiction, the court held that the Ghotras were entitled to a jury trial on those claims, even though they also asserted an admiralty claim.
Here, Phillips not only pleads in personam negligence claims against TBL, but also pleads those same claims against Barge No. 2. Barge No. 2 is a "ship" to which the "savings to suitors" clause is inapplicable. The remedy available under the LHWCA "shall be exclusive of all other remedies against the vessel except remedies available under this Act." 33 USC § 905(b) (emphasis added). Because Phillips cannot sue a vessel for negligence except under the LHWCA, his Fourth and Fifth Claims should be dismissed against Barge No. 2.
With respect to his in personam negligence claims against TBL, Phillips does not rely on diversity jurisdiction as in Ghotra, but instead relies on supplemental jurisdiction under 28 USC § 1367. While Ghotra may allow a jury trial on a negligence claim that has an independent basis for jurisdiction, that is not the issue presented by defendants' motion. Instead, the issue is whether common law negligence claims are barred by the LHWCA. Nothing in Ghotra prohibits such claims. In fact, a common law negligence claim was pled in Ghotra, along with a negligence claim under the LHWCA, without objection. Because Phillips's Fifth Claim for common law negligence is pled as an alternative in personam claim against TBL, it cannot be dismissed as preempted by the LHWCA, although the benefit of such a claim is not immediately evident. Absent diversity jurisdiction, Ghotra bars a jury trial on that claim.
The Fourth Claim for "General Maritime Negligence" is premised upon the same allegedly negligent conduct underlying all the other negligence claims. It appears in all respects to be redundant with the negligence claim under the LHWCA and the common law negligence claim. Under 33 USC § 905(b) of the LHWCA, injured workers have a negligence cause of action against the vessel as a third party in accordance with 33 USC § 933, but "the employer shall not be liable to the vessel for such damages." As noted above, that remedy is exclusive. Phillips has provided no explanation why the general maritime negligence claim provides any different legal standard or remedy, and why the LHWCA is not the exclusive remedy for negligence actions against third parties. Therefore, the Fourth Claim should be dismissed as redundant with the LHWCA claim.
IV. OELA Claim (Sixth Claim)
The OELA provides that an employer must use "every device, care, and precaution which it is practicable to use for the protection and safety of life and limb." ORS 654.305. As a result, it imposes a higher duty of care than does a LHWCA claim which imposes a duty on shipowners to exercise reasonable care under the circumstances. Scindia Stem Nav. Co., Ltd. v. De los Santos, 451 US 156, 166-67 (1981).
As discussed above, TBL is not Phillips's employer. However, the OELA permits actions against third parties who are not the employee's immediate employer but who exercise a specified degree of control over the work causing the injury. Tallman v. Toko Kaium K.K. Kobe, 278 F Supp 452, 454 (D Or 1967). The parties have not addressed whether TBL exercised a sufficient degree of control over Phillips to be liable under the OELA. Instead, assuming that TBL could be held liable under the OELA, defendants contend that the due to its differing standard of liability, OELA conflicts with and, therefore, is preempted by § 905(a) of the LHWCA (the "liability of an employer [for compensation] shall be exclusive and in place of all other liability of such employer to the employee"). Phillips responds that the OELA claim is a separate and concurrent claim.
Defendants rely on two earlier decisions by this court holding that the LHWCA preempts the OELA. The first case is Birrer v. Flota Mercante Grancolombiana, 386 F Supp 1105, 1107-08 (D Or 1974), declined to follow on other grounds by De Los Santos v. Scindia Steam Nav. Co., Ltd., 598 F2d 480, 486 n4 (9th Cir 1979). Interpreting the legislative history of the LHWCA, Birrer concluded that the purpose of § 905(b) was to design a compensation benefits system that was a fair compromise "between the longshoremen, who wanted no limits on tort actions, and the shipowners, who wanted complete immunity from such actions." Id. at 1112. Because § 905(b) "precludes a state standard that is stricter than the national standard" of care, the stricter OELA standard of care was held inapplicable to negligence actions under § 905(b). Id. A year later relying on Birrer and the legislative history, this court again concluded that the OELA was preempted by a § 905(b) action. Croshaw v. Koninklijke Nedlloyd, B.V. Rijswijk, 398 F Supp 1224 (D Or 1975), declined to follow on other grounds by De Los Santos, 598 F2d at 486 n4.
This would seem to resolve the preemption issue in defendants' favor. However, both Birrer and Croshaw were decided prior to Sun Ship, Inc. v. Pennsylvania, 447 US 715, 717-19 (1980), which held that the LHWCA did not preempt Pennsylvania's workers' compensation scheme with respect to an employee who sustained a land-based injury. As explained in Sun Ship, the law has evolved since 1917 when the Supreme Court held that states could not constitutionally apply their compensation systems to longshoremen's injuries that happened seaward of the water's edge, i.e. at the end of piers and docks (the so-called Jensen line). Southern Pac. Co. v. Jensen, 244 US 205 (1917). Finding the rigidity of the Jensen line troublesome, the Supreme Court later developed the "maritime but local" doctrine, which held that the Jensen line could not foreclose a state worker's compensation remedy for injuries occurring beyond the Jensen line in navigable waters where the employment had no direct relation to navigation or commerce and the application of local law would not materially affect the uniformity of maritime law. See Grant Smith-Porter Ship Co. v. Rohde, 257 US 469, 477 (1922).
To extend a measure of protection to maritime workers, Congress adopted the LHWCA in 1927 covering injuries "occurring upon the navigable waters of the United States (including any dry dock) and if recovery . . . through workmen's compensation proceedings may not be validly provided by State law." 44 Stat 1426. However, "the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases." Sun Ship, Inc., 447 US at 718.
In Davis v. Dept. of Labor Ind. of Wash., 317 US 249, 254 (1942), the Court noted that the "maritime but local" doctrine often left workers without a remedy when they pursued but were denied state workers' compensation and then were too late to apply for benefits under LHWCA. The court was faced with "a state statute which purports to cover these persons, and which indeed does cover them if the doubtful and difficult factual questions to which we have referred are decided on the side of the constitutional power of the state." Id. at 257. Those "doubtful and difficult factual questions" were whether the state statute "works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations." Id. at 252, citing Article III, § 2 of the United States Constitution. To remedy the Jensen line problem, the Court found no constitutional obstacle to concurrent federal and state jurisdiction in what it termed the "twilight zone" in which persons are protected under the state workers' compensation laws. Id. at 256.
In Alaska Indus. Bd. v. Alaska Packers Ass'n, 186 F2d 1015, 1017 (9th Cir 1951), the Ninth Circuit interpreted the Davis "twilight zone" to apply to employees with "amphibious occupation[s], both on shore and at sea." Unlike an iron worker and rigger whose duties were both on land and on a barge, or a welder whose duties were to cut steel from a bridge and recut it on a barge, a deckhand employed on a vessel used for towing fishing boats did not have an amphibious employment. Id. In C.J. Montag Sons v. O'Leary, 304 F Supp 188, 189 (D Or 1969), a person employed to help construct a fish ladder at Willamette Falls was killed while trying to move a tractor off a barge to the working area. The court differentiated Davis and its progeny which held the "twilight zone doctrine applicable where the employee's duties are not uniquely maritime" because there was a federal administrative hearing and it was foreseeable the employees would perform traditional maritime work (citations omitted). Id. at 190.
Later in Calbeck v. Travelers Ins. Co., 370 US 114, 124 (1962), involving welders who were injured while working on barges floating on rivers, the Court held that the LHWCA provided "compensation for all injuries sustained by employees on navigable waters whether or not a particular injury might also have been within the constitutional reach of a state workmen's compensation law." This ruling "extended the LHWCA into the `maritime but local' zone" with concurrent state jurisdiction. Sun Ship, Inc., 447 US at 718-19. As a result, before 1972 "marine-related injuries fell within one of three jurisdictional spheres." Id. at 719. The LHWCA had exclusive jurisdiction over "nonlocal maritime" injuries; the LHWCA and state law had concurrent jurisdiction over "maritime but local" injuries; and state law had exclusive jurisdiction over "injuries suffered beyond navigable waters." Id.
However, in 1972, Congress adopted amendments to the LHWCA which crossed the Jensen line into territory traditionally covered by state law by extending coverage landward to include "any pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used . . . in loading, unloading, repairing, dismantling, or building a vessel." 33 USC § 903(a). The amendments also deleted the phrase "if recovery . . . through workmen's compensation proceedings may not validly be provided by State law."
In Sun Ship, Inc., the Court addressed the issue of whether state workers' compensation laws applied to land-based injuries that fell within the coverage of those 1972 LHWCA amendments. Based on the clarifying opinions in Davis and Calbeck and the concurrent state remedies in the "maritime but local" zone, the Court concluded "that the 1972 expansion of federal jurisdiction supplements, rather than supplants, state compensation law." Sun Ship, Inc., 447 US at 719-20. "For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters." Id. at 720. It also reaffirmed that the 1972 amendments did not disturb the "understanding that federal jurisdiction would co-exist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine." Id. at 722.
After Sun Ship, Inc., the Ninth Circuit found "[i]t is settled law that the LHWCA as a whole does not preempt state workers' compensation schemes, even with respect to job sites covered by both schemes." Service Eng'g Co. v. Emery, 100 F3d 659, 661 (9th Cir 1996), citing Sun Ship, 447 US at 722. Recognizing that Congress neither expressly preempted state workers' compensation programs nor completely occupied the field, Emery analyzed whether a section of the California workers' compensation statute was preempted by federal law under "conflict preemption." Id. As laid out in Emery, conflict preemption occurs "where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id, citing Southern Pac. Transp. Co. v. Public Util. Comm'n of State of Or., 9 F3d 807, 810 (9th Cir 1993). Under the second prong, the "relevant inquiry is whether there has been frustration of the purpose" behind the specific section of LHWCA at issue and not the broad purpose of LHWCA as a whole. Id.
The injury at issue here clearly took place upon the navigable waters of the United States and, therefore, is a sea-based injury and not a land-based injury governed by Sun Ship, Inc. However, the parties have not addressed, and the record is insufficient at this juncture to determine, whether Phillips's injury may be covered by the OELA. Furthermore, neither party has addressed the validity of Birrer and Croshaw in light of Sun Ships, Inc., or how the conflict preemption analysis of Emery applies to the OELA. See Lenane v. Continental Maritime of San Diego, Inc., 61 Cal App 4th 1073, 72 Cal Rptr 2d 121, cert denied, 525 US 1002 (1998) (holding that the LHWCA does not preempt the California workers' compensation statute for shore-based maritime injuries). Therefore, defendants' motion for summary judgment against the OELA claim should be denied as premature.
The OELA is not part of Oregon's workers compensation law (ORS Chapter 656). Instead, it falls within ORS Chapter 654 which governs safety and health conditions in places of employment. The definition of an "employee" covered by the OELA is very broad, ORS 654.005(4), and the OELA does not appear to exclude maritime workers. Although a common law negligence action by an injured longshore worker against his employer is preempted ( see Peter v. Hess Oil Virgin Islands Corp., 903 F2d 935, 937 (3rd Cir 1990), cert denied, 498 US 1067 (1991)), this court assumes that a state statute providing a remedy to maritime workers is not the same as a common law negligence action and is subject to the preemption analysis under the LHWCA. However, this is another issue that has not yet been addressed by the parties.
RECOMMENDATIONS
For the reasons stated above, defendants' Motion for Partial Summary Judgment (docket #12) should be GRANTED IN PART and DENIED IN PART as follows: granted as to the First Claim for negligence under the Jones Act, the Fourth Claim for common law negligence against Barge No. 2 only, and the Fifth Claim for general maritime negligence, and otherwise denied. In addition, plaintiff's Cross Motion for Partial Summary Judgment (docket #20) should be DENIED.
SCHEDULING ORDER
Objections to the Findings and Recommendations, if any, are due April 7, 2006. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, then a response is due within 10 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.