Carter v. Bisso Marine Company
Richard Carter was employed by Bisso Marine (Bisso) and at the time of his accident he served as the head of the survey department. His duties included soliciting and accepting customer orders, coordinating survey projects, preparing survey reports. In addition to desk work, Carter worked in the field by towing and launching Bisso's survey vessel, the BULLS EYE, operating the vessel, deploy sounding equipment and conducting underwater surveys.
Carter sustained two different injuries that provide the foundation of this lawsuit. Both injuries were sustained during the while using the trailer's jack handle to either attach or detach the BULLS EYE's trailer from his vehicle. Both accidents caused Carter back injuries and on one of the occasions he suffered a neck injury.
As a result of these injuries, Carter filed claims under the Jones Act and the general maritime law claim for unseaworthiness. In its defense, Bisso Marine contends that Carter is not a seaman, that the BULLS EYE was not in navigation at the time of Carter's injuries, and that Carter was not acting in the course of his employment at the time of the second injury.Does the plaintiff qualify as a seaman? Does the fact that the vessel was not in navigation at the time of plaintiff's injury prevent him from filing an unseaworthiness claim? Was the plaintiff acting outside the scope of his employment during his second injury?
In order for a claimant to qualify as a seaman he must prove that his duties contribute to the function of a vessel or its mission and that he has a connection to a vessel in navigation that is substantial in terms of its duration and nature. The court explained the seaman status was created to separate marine workers that are exposed to the perils of the sea and therefore entitled to Jones Act protection from those land-based workers who only have sporadic connection to a vessel in navigation. Here, the defendant argues that Carter fails to satisfy the 30 percent in service of a vessel in navigation rule of thumb, and as a result he does not qualify as a seaman. Carter argues that he Bisso's method of determining the amount of time he spent aboard was improperly narrow and that the company failed to take into account he spent servicing other vessels in the Bisso Marine Fleet. The court rejected Bisso's analysis of the time Carter spent in service of vessels in navigation. Specifically, the court took issue with Bisso's argument that the work Carter performed on the Bisso fleet on land did not factor into the 30 percent determination. The court explained that the issue of whether a vessel is in navigation in a question of fact and that on summary judgment it must interpret all facts in favor of the non-moving party. As such, questions of material fact remain as to whether Carter fell short of the 30 percent rule of thumb and therefore summary judgment is improper.
Next, the court addressed the issue of whether Carter can file a claim for unseaworthiness because the vessel was not in navigation at the time of the plaintiff's injury. A vessel owner's duty to provide a seaworthy vessel attaches only to a vessel in navigation. Here, Bisso argues that the vessel was removed from navigable waters and because of this it had no duty to provide a seaworthy vessel. Specifically, Bisso cited a wealth of precedent that had found a vessel out of navigation when it was no longer being engaged as an instrument of commerce and transportation on navigable waters. The court rejected this argument, however, because a vessel may remain in navigation despite being physically removed from navigable waters. Further, the court distinguished the case law Bisso referenced because those cases dealt with vessels that were either newly constructed or removed from navigation to undergo major repairs and as a result had either not entered or returned to maritime service. Ultimately, the court rejected Bisso's argument that a vessel must be physically in navigable waters. It held that a vessel is in navigation as long as it is able and intended to return to navigation. Therefore, the question becomes one of fact as to the status of the BULLS EYE and as such the court denied Bisso's motion for summary judgment.
Finally the court addressed the issue of whether was acting within the course of his employment when he suffered injuries to unhitch the trailer carrying the BULLS EYE at his home. The court began its analysis by explaining that a seaman is considered to be in service of the ship, and thereby acting within the scope of his employment, when he is generally answerable to its call of duty. The situs of a seaman's injury is not determinative on whether a seaman is acting in the course of his employment. Specifically in regards to seaman that regularly commute from home to the vessel, courts ask whether, at the time of the injury, if the seaman was acting pursuant to some employer directive or benefiting from the seaman's land-based activity.
Here, Carter testified that he would haul the BULLS EYE home as a matter of convenience and that on the day he sustained his injury his employers approved bringing the vessel to his home and that he performed work on the vessel to prepare it for the survey he was to perform the next day. Further, Carter testified that he was a salaried employee who remained on call 24 hour a day, seven days a week. Bisso contends that when Carter was unhitching the trailer that he was doing so to conduct personal errands. Bisso uses Carter's own testimony to support this notion. In response, Carter argues that he misunderstood the question and was unhitching the truck to reduce wear and tear on the truck when he was going to buy supplies for the survey he was to conduct the next morning. Bisso argues that Carter is attempting to create a question of fact to prevent summary judgment by contradicting summary judmgnet. While a plaintiff is not allowed to create questions of fact in this manner, they are permitted to supplement and explain previous statements. The court rejected Bisso's argument that Carter was manufacturing a question of fact and found his statements as clarifying his previous statement. It held that these issues of credibility and whether Carter unhitched the truck for personal reasons are better left to a jury to decide.To determine whether a seaman was acting within the scope of his employment a court must consider whether the employer was a recipient of some benefit as a consequence of the seaman's activity or whether the seaman was generally answerable to the call of duty.
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