46 U.S.C. § 688 (underscoring added).

   Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was "an employee of the vessel, engaged in the course of his employment" at the time of his injury. The fact that a Jones Act petitioner's injury occurred on land is not material. 46 U.S.C.A. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957). See also, Swanson v. Marra Bros., Inc., 328 U.S. 1, 4 (1946).

   The Jones Act was passed in 1920; the LHWCA was enacted in 1927 providing recovery for injury to a broad range of land-based maritime workers (only injured over water when originally enacted), but explicitly excluding from its coverage a master or member of a crew of any vessel.

   The LHWCA, in pertinent part, reads as follows:

   The term employee' means 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, but such terms does not include--(g) a master or member of a crew of any vessel; ... .

33 U.S.C. § 902(3)).

   It must be kept in mind that the Jones Act does not define "seaman" just as the LHWCA does not define "master or member of a crew." It must also be kept in mind that the Supreme Court has held that the LHWCA restricts the benefits of the Jones Act to "members of the crew of a vessel." Senko, 352 U.S. at 371 (citing Swanson, 328 U.S. 1).

   The LHWCA and the Jones Act in theory are mutually exclusive, so that a "seaman" under the Jones Act is the same as a "master or member of a crew" of any vessel. McDermott Int'l v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) (1991); Swanson v. Marra Bros., Inc., 328 U.S. 1, 7 (1946); Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988); See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)) ("The terms "member of a crew" under the LHWCA and "seaman" under the Jones Act are synonymous.").

   However, from a practical view the limits may not always appear so black and white. See for example Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983) where the Fifth Circuit stated:

   Well recognized are the difficulties faced by injured maritime workers arguably both seaman and harbor workers who must choose whether by what means they will pursue remedies that in substantive theory are perfectly mutually exclusive (the [Longshore] Compensation Act, which for present purposes applies to all but seaman, and the Jones Act, which applies only to seaman, but which seem in practice to frequently overlap each other's borders:

    Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoreman's Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a "zone of uncertainly" inevitably connects the two Acts.

Simms, 709 F.2d at 411-12.

[ED. NOTE: Interestingly, in Simms, the claimant had filed a petition seeking review of an Order of the Board dismissing him as a party from an administrative appeal seeking a determination that the maritime worker was not a seaman. (The employer's worker's comp carrier had appealed the determination of non-seaman status.) Simms had a Jones Act claim pending and did not want to jeopardize his possible determination of seaman status. The Fifth Circuit noted his theory of appealable adverse effects arising out of the unique relationship of the Jones Act and the LHWCA but held that there had not yet been a final Board determination of non-seaman status.]

[ED. NOTE: For the period 1927-1946, the Supreme Court did not recognize the mutual exclusivity of the LHWCA and the Jones Act. Swanson, 328 U.S. 1.]

   "Master or member of a crew" is a refinement of the term "seaman" in the Jones Act; it excludes from LHWCA coverage those properly covered under the Jones Act. Wilander, 498 U.S. 337; White v. Valley Line Co., 736 F.2d 307 (5th Cir. 1984). Thus, the key requirement for Jones Act coverage (seaman status) is indirectly defined by elimination under LHWCA jurisprudence and, vice versa; the key requirement for LHWCA status is the elimination of seaman status (providing of course, the worker is a maritime employee).

   Thus, there is an ever present tension between the LHWCA and the Jones Act. The Jones Act is a maritime negligence statute that gives seamen a right of recovery against a ship or employer. The LHWCA, on the other hand, covers "maritime workers" but excludes members of the crew of a vessel as noted above. The LHWCA fact-finder is the administrative law judge. Recall, that the LHWCA is to be liberally construed with a presumption of coverage.

   There is also jurisprudence noting that the Jones Act is to be liberally construed as well. See Offshore Co. V. Robinson, 266 F.2d 769, 773-774, 1954 AMC 2049, 2054 (5th Cir. 1959); Wilson v. Crowley Maritime, 22 BRBS 459, 460, 462 n. 3(1989)(Jones Act, like the LHWCA is to be liberally construed in the claimant's favor); Cf. Gautreaux v. Scurlock Marine, Inc., 107 F.3d. 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held: (1) seamen in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); Smith v. Tow Boat Serv. & Management Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n. 2 (2nd Cir. 1986), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee, under the Jones Act, are charged with a duty of reasonable care under the circumstances); Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L.& Comm. 1, 31 (1994). Under the Jones Act, a plaintiff making use of the "saving to suitors" clause, 28 U.S.C.A. § 1333, usually requests a jury trial in federal district court. Thus, under the Jones Act, a jury is generally the finder of fact and the issue of seaman status is a mixed question of law and fact.

[ED. NOTE: Article III, § 2 of the United States Constitution extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction. The Judiciary Act of 1789, revised at 28 U.S.C.A. §1333, gave exclusive admiralty jurisdiction to the federal district courts, "saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it." This clause is the means by which a plaintiff in a Jones Act claim has the right to request a jury trial. For a thorough discussion of the "saving to suitors" clause, see Gilmore and Black, The Law of Admiralty, 2d Ed. (1975).]

   From a practical standpoint, since the Jones Act and LHWCA focus on a worker's employment/duties from two separate viewpoints, the outcome of a case/claim may, to some extent, depend on the forum in which it is adjudicated. But note Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) and see infra There will be occasions when, had the worker instituted an LHWCA claim, an administrative law judge might have found coverage under the LHWCA, but had the same worker, with the same factual situation, instituted a Jones Act claim, a federal district court jury might have found Jones Act coverage and there would not be a Judgment Not On Verdict (JNOV).

[ED. NOTE: For an example of what the Fifth Circuit has described as "a classic instance of the case that could have gone either way," see Abshire v. Seacoast Products, 668 F.2d 832 (5th Cir. 1982). See however the Ninth Circuit where the litigation under the LHWCA and Jones Act went both ways. Ramos v. Universal Dredging Corp., 15 BRBS 140 (1982), remanded from, 653 F.2d 1353 (9th Cir. 1981)(employer could waive situs and status arguments because it only presented issues of "personal coverage"- not subject matter jurisdiction), rev'g 10 BRBS 368, 372 (§§2(3) and 3(a) presented issues of subject matter jurisdiction that could not be waived by either party). Compare to Ramos v. Universal Dredging Corp., 547 F.Supp. 661 (D. Ha. 1982)(claimant was a seaman as a matter of law).

   And, in fact, at least under present Ninth Circuit case law the LHWCA and Jones Act seem to coexist. Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) See also, Topic 1.4.6 for a discussion on this.]

   In McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 (5th Cir. 1982), the Fifth Circuit stated:

    Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoreman's Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a "zone of uncertainty" inevitably connects the two Acts. Confronted by conflicting evidence concerning a worker's duties or undisputed evidence concerning an occupation that exhibits the characteristics of both traditional land and sea duties, a fact finder might be able to draw reasonable inferences to justify coverage under either statute. (emphasis added).

   The Fifth Circuit in McDermott, however, went on to note that:

Even the ambiguous employee must elect a remedy, however. Section 5 of the Longshoremen's Act, 33 U.S.C. § 905, provides that the employer's liability under the Act is an exclusive remedy. Thus, we have held that the Longshoremen's Act and the Jones Act are "mutually exclusive," Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 274 (5th Cir. 1966), and that establishment of an employer's liability under the Longshoremen's Act "effectively abrogates any independent tort liability of the employer to its employees...." Ocean Drilling & Exploration Co. v. Berry Brothers Oilfield Service, Inc., 377 F.2d 511, 514 (5th Cir. 1967), cert. denied, 389 U.S. 849 (1967).

679 F.2d at 459 n.7.

   In Simms, 709 F.2d at 411, the Fifth Circuit went on to state:

...The recognition by this circuit that the Jones Act and the Longshoreman's Act each requires a "liberal application in favor of claimant to effect its purposes," McDermott, supra, 679 F.2d at 458, has further contributed to the zone of uncertainty and to the dilemma of injured workers within it. They, in reaping the rewards of such liberality, may find as Simms asserts is true here, that a formal victory as a harbor worker serves as a practical defect of what is perceived as the greater seaman's remedy, if prevailing under the Compensation Act indeed effectively precludes a subsequent opportunity for relief under the Jones Act. See G. Gilmore & Black, The Law of Admiralty 434-36 (2d ed. 1975)); 4 A. Larson, Workmen's Compensation Law § 90.51 (1983); 1 A Benedict on Admiralty § 23 (1982); 1 M. Norris, the Law of Maritime Personal Injuries §§ 8-11 (3d ed. 1975).

    While the mere acceptance of Compensation Act benefits without a formal adjudication of seaman status will not preclude a subsequent Jones Act suit, the extent to which collateral estoppel and res judicata will be applied to a Jones Act suit following a formal Board finding of non-seaman status and an award of benefits appears to be a matter of first impression in this circuit (and one about which the commentators suggest there is uncertainty).

709 F.2d 409, 411-12 (footnotes omitted).

   An unsuccessful plaintiff in a Jones Act case (i.e. where there is a finding of no actual Jones Act status) may still be able to bring a claim under the LHWCA since the period for filing a claim is tolled by the filing of the Jones Act claim. 33 U.S.C.A. 913(d). See also Young & Co. v. Shea, 397 F.2d 185 (5th Cir. 1968) (no collateral estoppel in compensation act proceedings following jury findings of no injury in Jones Act suit).

   The Fifth Circuit has held that where an administrative law judge issues a compensation order under the LHWCA ratifying a settlement agreement, a "formal award" is deemed to have been made and the injured party can no longer bring a Jones Act suit for the same injuries. Sharp v. Johnson Bros. Corp., 973 F.2d 423, 26 BRBS 59 (CRT) (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993). The court reasoned that once a final, formal award is made, the parties are no longer free to seek another mutually exclusive remedy.

   In the Fifth Circuit the entry of an order by the administrative law judge constituted a finding that the injuries were compensable under the LHWCA. By seeking and acquiescing to the finding, the plaintiff under the Jones Act case is collaterally estopped from contesting LHWCA coverage. Id.; Fontenot, 923 F.2d at 1133 ("...a finding of LHWCA coverage sought and obtained by the injured worker from the Department should preclude any subsequent action against his employer for the same injury.").

[ED. NOTE: See also Topic 1.4.6, Jurisdictional Estoppel, which includes a discussion of the Ninth Circuit position.]

   In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), an LHWCA case, the Court held that Congress had given to the deputy commissioner (district director), an administrative officer, the authority to determine who is a "member of a crew" under the LHWCA. If there was evidence to support the deputy commissioner's findings, they were conclusive. Id. In Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), the Supreme Court applied the same rule to findings by the jury in Jones Act cases. 352 U.S. at 374 ("A jury's decision is final if it has a reasonable basis.").

   The Court in Wilander stated that it was not asked to reconsider this rule, but noted that the question of who is a "member of a crew" and therefore who is a "seaman" is better characterized as a mixed question of law and fact. When the underlying facts are established, and the rule of law is undisputed, the issue is whether the facts meet the statutory standard.

   Significantly, the Court in Wilander summed up the LHWCA/Jones Act clash as follows:

It is for the court to define the statutory standard. "Member of a crew" and "seaman" are statutory terms; their interpretation is a question of law. The jury finds the facts and, in these cases, applies the legal standard, but the court must not abdicate its duty to determine if there is a reasonable basis to support the jury's conclusion. If reasonable persons, applying the proper legal standard, could differ as to whether the employee was a "member of a crew," it is a question for the jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986). In many cases, this will be true.

Wilander, 498 U.S. at 356, 111 S. Ct. at 818.

   The inquiry into seaman status is of necessity fact-specific; it will depend on the nature of the vessel, and the employee's precise relation to it. See Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190 (1952) ("The many cases turning upon the question whether an individual was a seaman' demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury."). Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion. Anderson, 477 U.S. at 248, 250-51; Texas Co. v. Gianfala, 222 F.2d 382, rev'd per curium, 350 U.S. 879 (1955); Texas Co. v. Savoie, 240 F.2d 674 (5th Cir. 1957); See also Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir. 1982)(issue of seaman status under Jones Act is to be left to jury even when claim to seaman status appears to be relatively marginal one; "only rarely may a district judge conclude as a matter of law that an injured individual is not a seaman."); Barrios v. Louisiana Const. Materials Co., 465 F.2d 1157 (5th Cir. 1972), citing Senko v. La Cross Dredging Corp., 352 U.S. 370, 77 S.Ct. 415 (1957); rehearing denied 353 U.S. 931, 77 S.Ct. 716 and Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.CT. 687 (1958); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966)(under same circumstances workers are seaman as a matter of law); Soncie v. Trantwein Bros., 275 Cal. App. 2d. 20, 25-26 (1969)(held: bargehand may be summarily adjudged "seaman" as a matter of law); Longmeie v. Sea Drilling Co., 610 F.2d 1342 (5th Cir. 1980).

   However summary judgements on the issue of seaman status:

depend largely on the facts of a particular case, or as stated, or the totality of circumstances. It would be the rare factual situation where the question could be resolved as a matter of law. The Second Circuit put it well in Hawn v, American S.S. Co., 107 F.2d 999 (2d Cir. 1939):

It is impossible to define the phrase, "member of a crew," in general terms; the words are colloquial and their fringe will always be somewhat ragged. Perhaps the best hope is that, as the successive variants appear, they will finally serve rudely to fix the borders."

Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966).

   More recently the Supreme Court espoused:

The seaman injury is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, "summery judgement or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion."

Harbor Tug and Barge Co. V. Papai, 117 S.Ct. 1535 (1997), citing McDermott International, Inc. v. Wilander, 498 U.S. 337, 356 (1991) and Chandris, Inc. v. Latsis, 515 U.S. 347, 368-369.

   The situation is complicated by the fact that an OALJ case is never routed through the federal district court during its appeal process. (The appeal process is as follows: Office of Administrative Law Judges to the Benefits Review Board to the appropriate circuit court to the U.S. Supreme Court.) As noted in McDermott, Inc. v. Boudreau, 679 F.2d 452 (5th Cir. 1982), this creates a "zone of uncertainty". See, e.g., Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991).

[ED. NOTE: For a well-researched historical treatment of the tension between administrative tribunals (district director/administrative law judge) and the federal courts, see Thorne, "The Impact of the Longshore and Harbor Workers' Compensation Act on Third Party Litigation," Tulane University School of Law Admiralty Law Institute (1993), 68 Tul. L. Rev. 557 (1993).]

   At least one commentator, Thorne, supra, acknowledges that a final finding of non-seaman status by an administrative law judge may bar a Jones Act suit. (Credit, in part, for this deference is attributed to the emergence of independent administrative law judges.) See Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993); Fontenot v. AWI, Inc., 923 F.2d 1127, 1132 (5th Cir. 1991); Richendollar v. Diamond M Drilling Co., 784 F.2d 580, 582 n. 1 (5th Cir. 1986), aff'd in part and rev'd in part, on recon., en banc, 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987); Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983; Hagens v. United Fruit Co.,135 F.2d 842 (2nd Cir. 1943). See also Harmon v. Baltimore & Ohio R.R., 560 F. Supp. 914 (D. D.C. 1983), aff'd, 741 F.2d 1398 (D.C. Cir. 1984). Cf. Vilanova v. United States, 851 F.2d 1, 4 (1st Cir. 1988), cert. denied, 488 U.S. 1016 (1989); Grijalva v. United States, 781 F.2d 472 (5th Cir.), cert. denied, 479 U.S. 822 (1986).

[ED NOTE: From a practical standpoint, an injured worker may now think twice before choosing to pursue a Jones Act claim in lieu of a LHWCA claim. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held (1) seaman in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); See also Smith v. Tow Boat Serv. & Management, Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n.2 (2nd Cir 1986), cert. denied 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee under Jones Act are charged with duty of reasonable care under the circumstances).

   Gautreaux concluded that "[t]he reasonable person standard under the Jones Act becomes one of the reasonable seaman in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seaman only for their gross negligence, which was not the contemplation of Congress." See Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L. &Comm. 1, 31 (1994). Thus, a worker preferring the security of workers compensation will file under the LHWCA coverage rather than gamble on a Jones Act claim where a finding of unreasonableness on the part of the maritime worker could deny him coverage.

[ED. NOTE: Naturally subsumed within this test is the requirement that there must be a "vessel". For a definition of "vessel" see Topic 1.4.3. Also note that in Papai the Court has now defined what as "identifiable group of vessels" or "fleet" actually is. See infra at Topic 1.4.3]

   A variation of this test was first developed by the Fifth Circuit in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), and refined in McDermott, 679 F.2d 452. In Wilander, the Supreme Court adopted this test as defined in McDermott, and recently, and most significantly, this test was revised by the Court in Chandris.

   In Wilander, the Court addressed the type of activities that a seaman must perform and held that under the Jones Act, a seaman's job need not be limited to transportation related functions that directly aid in the vessels navigation. The Court determined that, although "it is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, a seaman must be doing the ship's work." 498 U.S. at 355. The Court concluded that under both the Jones Act and general maritime law "all those with that peculiar relationship to the vessel' are covered under the Jones Act, regardless of the particular job they perform." Id. at 354.

   Specifically, the Wilander Court stated:

We believe the better rule is to define "master or member of a crew" under the LHWCA, and therefore "seaman" under the Jones Act, solely in terms of the employee's connection to a vessel in navigation. This rule best explains our case law, and is consistent with the pre-Jones Act interpretation of "seaman" and Congress' land-based/sea-based distinction. All who work at sea in the service of a ship face those particular perils to which the protection of maritime law, statutory as well as decisional, is directed. ... It is not the employee's particular job that is determinative, but the employee's connection to a vessel.

498 U.S. at 354, 111 S. Ct. at 817 (emphasis added).

   In Chandris, the Court clarified what employment-related connection to a vessel in navigation is necessary for a maritime worker to qualify as a seaman under the Jones Act. The Chandris Court determined what relationship a worker must have to the vessel in navigation regardless of the specific tasks the worker undertakes, in order to obtain seaman status.

   The Chandris Court articulated two basic principles of seaman status:

(1) " seamen do not include land-based workers'" 115 S. Ct. 2172, 2185 (quoting Wilander, 498 U.S. at 348); and (2) "Jones Act coverage depends not on the place where the injury is inflicted but on the nature of the seaman's service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.'" Id. (quoting Swanson v. Marra Bros., 328 U.S. 1, 4 (1946)). Further, the Chandris Court acknowledged that cases under the LHWCA "recognize the converse: land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA." Id. at 2186. The Court added: "A maritime worker does not become a member of a crew' as soon as the vessel leaves the dock." Id.

   Thus, the Court, in Chandris, developed a status-based standard, that although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act's remedial goals. As set out above, to qualify as a seaman under the Jones Act (and therefore be excluded under the LHWCA), the worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in both duration and nature. 115 S.Ct. 2172. Thus, the employment connected to a vessel in navigation must be substantial both in terms of the nature of the work done and in terms of duration for there to be seaman status.

   Importantly for LHWCA purposes, the Chandris Court noted the Fifth Circuit's "temporal gloss" of Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), wherein a worker whose regular duties require him to divide his time between vessel and land, had to have his crew status determined in the context of his entire employment with his current employer. Citing the rule of thumb used by the Fifth Circuit in ordinary cases, the Court stated: "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation" is not performing a substantial portion of work "on board" and the worker is not a crew member. 115 S.Ct. at 2192; see Barrett, 781 F.2d at 1075; see also id. at 1077 (Rubin, J., dissenting).

   However, the Court cautioned that "seaman status is not merely a temporal concept" but rather is one element to be considered. Chandris, at ___U.S.___, 115 S.Ct. at 2191. The Ninth Circuit has noted that "the duration of time aboard a vessel is not enough, standing alone, to determine status as a seaman under the Jones Act." Boy Scouts of America v. Graham, 76 F.3d 1045 (9th Cir. 1996); See also Heise v. Fishing Co. Of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996) for a Ninth Circuit application of the Chandris formula. See also O'Hara v. Weeks Marine, Inc. 928 F.Supp. 257 (E.D.N.Y. 1996) for an application of Chandris by a district court in the First Circuit. The Chandris Court declared that "[t]he 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." 115 S.Ct. at 2191.

   In Wilson v. Crowley Maritime, 30 BRBS 199 (1996), the Board followed Chandris in holding that although a claimant spent 75% of his time aboard employer's barges, as a "cargo operations manager," claimant was not a seaman since most of his duties consisted of preparing for and supervising the loading of employer's dock-tied barges and claimant's duties upon completion of this task. Thus, the Board found that claimant's duties with employer were those traditionally associated with longshore work. Moreover, claimant was a land-based employee in that he lived on shore, had a shore-based office, and except for a few occasions, in emergency situations, never went to sea with the barges.

   See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (decedent who worked as a welder repairing barges and as a mate trainee/deckhand on tugboat was covered under LHWCA because most of his work was as a welder).

   The Court also rejected the "voyage test" (anyone working on board a vessel for the duration of a "voyage" in furtherance of the vessel's mission has the necessary employment-related connection to qualify as a seaman). The voyage test would have allowed the worker's activities at the time of the injury to be controlling. This voyage test relied on previous Court statements that the Jones Act was designed to protect maritime workers who are exposed to the "special hazards" and "particular perils" characteristics of work on vessels at sea. 115 S. Ct. at 219. ("Seaman status is not coextensive with seaman's risks." Id.)

   Chandris approved the "fleet seaman doctrine" under which a worker who works on several vessels is a seaman only if he works on a fleet of vessels under common control. See e.g., Reeves v. Mobile Dredging & Pumping Co., Inc., 26 F.3d 1247, 1995 AMC 352 (3d Cir. 1994); Vowell v. G & H Towing Co., 870 F.Supp. 162 (S.D.Tex. 1994); Harbor Tug and Barge Co. v. Papai, 117 S.Ct. 1535 (1997), 1997 U.S. LEXIS 2846 (refined fleet doctrine). Prior employments with independent employers can not be considered in making the seaman status inquiry since that would undermine "the interest of employers and maritime workers alike in being able to predict who will be covered by the Jones Act...before a particular work day begins." Papai, 117 S.Ct. 1535. The Court went on to state that there would be no principled basis for limiting which prior employments are considered for determining seaman status. It does not matter that all of the worker's employment was through the same hiring hall or that the union agreement classified claimant as a deckhand. For more on fleeting doctrine, see Topic 1.4.3.

       In Anders v. Ormet Corp., 874 F.Supp. 738 (M.D.La. 1994), a worker who accepted compensation benefits after an Administrative Law Judge found him not to be a seaman was collaterally estopped from claiming seaman status. But see Figueroa v. Campbell Indus., 45 F.3d 311 (9th Cir. 1995) (example of dual coverage where court found that while the LHWCA is the exclusive remedy for a covered "employee," "employee" does not include "crew member/master," and therefore employee was allowed to recover both LHWCA benefits and pain/suffering under the Jones Act because a substantial portion of employment occurred on the tug).

1.4.3 Vessel

[ED. NOTE: One must keep in mind that while there must be a determination that there is a "vessel" for purposes of the Jones Act (and therefore, the exclusion of the right to benefit under the LHWCA), the lack of vessel status does not necessarily preclude LHWCA coverage.]

   As defined by Congress, a "vessel" is "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3. See also 46 U.S.C. § 801. Obviously, this is a very broad definition. In fact, under a literal interpretation, any floating structure that could be used for transportation is a vessel. See John T. Lozier, Comment, 20 Tul.Mar.L.J. 139, 143 (1995). Thus, a barge with no mobility of its own, would fit the description. (See, however, the discussion as to whether a barge's transportation function is primary or has become incidental to its use as a work platform, infra.)

   Congress may have attempted to narrow the definition of "vessel" in the Shipping Act of 1916, where "vessel" is defined as "all water craft and other artificial contrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or capable of being or are intended to be used as a means of transportation on water." 46 U.S.C. §§ 801 (1988). Unfortunately, this definition only adds to the variety of other ambiguous definitions.

   The statutory definition of vessel that applies to the LHWCA is equally unhelpful. As amended in 1972, Section 2(21) of the LHWCA defines "vessel" as:

any vessel upon which or in connection with any person entitled to benefits under this Act suffers injury or death arising out of or in the course of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.

33 U.S.C. § 902(21).

   The jurisprudential definition of "vessel" has come to include, but not be limited to ships, barges, drilling barges, jack-up rigs, submersibles, and semi-submersibles. Note, these last three are not fixed platforms, rather they are floating structures, or structures capable of flotation.

[ED. NOTE: Fixed platforms will be addressed infra.]

    A submersible rig has hulls upon which it floats while being towed to the work site. At the site, the hulls are flooded and "submerged" until they come to rest on the bottom. The drilling deck (sometimes called the Texas deck) is built on long steel columns that extend upward from the hulls. Hence, the drilling deck is well above the water. Like jack-up rigs, submersibles are limited to relatively shallow water.

   A jack-up is constructed so that it floats with its "legs" up when being moved to the work site. Once at the site, the legs are cranked down to the ocean floor. Then the hull is "jacked up" on the same legs allowing the work area to be raised about 50 feet above the water level. Jack-up rigs are limited to drilling in water depths of up to 350 feet.

   A drill barge or drill ship is a barge with a drilling derrick that is towed to location and anchored in place. It is essentially shaped like any ocean-going ship. However, drilling equipment (and other modifications) make a drill ship distinctive. Drill ships are the most mobile of rigs and are often used to drill discover, or wildcat, wells in deep, remote offshore waters.

   A semi-submersible is similar to a submersible in that it has two hulls upon which the rig floats as it is being towed to the work site. As semi-submersible is a cross between a submersible and a barge. Once at the site, the hulls are designed so that, when flooded, they do not settle on the bottom. Rather, they submerge about 50 feet after which special anchors are lowered to complete the mooring of the rig. In reality, a semi-submersible floats but not on the water's surface.

[ED. NOTE: For illustrations and a discussion of oil-well drilling, including detailed explanations of the drilling rig and its components, see A Primer of Oil-Well Drilling, by Ron Baker (Petroleum Ext. Service: The Univ. Of Texas at Austin, Fourth Ed. 1979).]

   The basic criterion used to establish whether a structure is a vessel is "the purpose for which [it] is constructed and the business in which it is engaged." The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12 (1903). "The fact that it floats on the water does not make it a ship or a vessel " Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627 (1887). The business or employment of a watercraft is determinative, rather than its size, form, capacity, or means of propulsion. See 119 U.S. at 629-30.

117 S.Ct 1535 (1997).

   However a strong dissent by Justice Stevens, with whom Justices Ginsberg and Berger joined, noted that if all of the deckhand's work had been preformed by the worker for one towing company, there "would be no doubt about [his] status as a seaman." 117 S.Ct 1535 (1997). As the dissent stated, "Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the proceeding two years was primarily seaman's work." 117 S.CT 1535 (1997)

   In Robison, the Fifth Circuit had listed as an alternative requirement of seaman status "substantial work" instead of being permanently assigned to a vessel. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), went a step further, focusing on the duration of an employee's assignment in relation to his entire employment. See also Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247 (3rd Cir. 1994); Johnson v. Continental Grain Co., 58 F.3d 1232 (8th Cir. 1995); but see Fisher v. Nichols, 81 F.3d 319, 323 (2nd Cir. 1996)(rejecting common ownership or control requirement).

[ED. NOTE: There are possibly two instances when a maritime worker might not be attached to either a vessel or technically to a fleet of vessels and yet may still have seaman status under the Jones Act. However, the reader is cautioned that while Papai did not mention "anchor handlers or "river pilots" the same Papai fleet doctrine may, and in the case of pilots, probably does now apply to issues of status involving these types of work (remember Bach II). The result of applying the Papai test is not a per se exclusion of pilots from Jones Act coverage. Blue water pilots do sleep on there boats for days or weeks at a time, and thus are more likely to be found as passing the seaman's status test. This is differentiated from the brown water pilots that tend to sleep ashore at night. The facts must be studied closely in order to determine the strength of the connection to the vessel. Thus the following discussion should be viewed cautiously.]

   In Bertrand v. International Mooring & Marine, 700 F.2d 240 (5th Cir. 1983), cert. denied, 464 U.S. 1069 (1984), anchor handlers who spent all of their time aboard vessels "used" by their employer, met the fleet general exception and would be covered under the Jones Act. This case should be noted with care, however, since it is probably limited to a particular fact situation.

   In Evans v. United Arab Shipping Co., 767 F. Supp. 1284 (D.N.J. 1991), the court found that, based on Wilander, a river pilot is a Jones Act seaman because at the time the Jones Act was passed prevailing general maritime law categorized a river pilot as a seaman. The district court concluded that if a plaintiff's position is indispensable to a vessel even though there is no permanency, the permanency can be overlooked if the person is performing an essential navigation function. The district court concentrated on the river pilot's essential navigational function and substitution for the vessel's captain/master.

   In Harwood v. Partredereit, 944 F.2d 1187 (4th Cir. 1991), cert. denied, 112 S. Ct. 1265 (1992), however, the Fourth Circuit found the river pilot not to be a Jones Act seaman, but rather, covered under the LHWCA. The court found that permanent attachment to a vessel or fleet of vessels was still a requirement under Wilander. The strong and well-written dissent in this case is noteworthy and makes reference to the historic position of the United States Employment Compensation Commission (the federal agency charged with compensation matters when the LHWCA was passed). Pre-1972 amendment jurisprudence held that pilots were not covered by the LHWCA.

   In Bach v. Trident Steamship Co., 920 F.2d 322 (5th Cir.), vacated, 111 S. Ct. 2253 (1991), reinstated on recon., 947 F.2d 1290, cert. denied, 112 S. Ct. 1996 (1992), the Fifth Circuit held that a river pilot is not a Jones Act seaman because he is not permanently attached to a vessel or fleet of vessels. The Supreme Court vacated and remanded Bach for further consideration in light of Wilander, 111 S. Ct. 2253 (1991) (issue of river pilot raised but not decided). The Fifth Circuit on remand again found that a river pilot is not a seaman stating: "We did not base our decision on Bach's seaman status on the relationship of his duties to navigation. Indeed, this issue was never in doubt. Instead, we concluded that Bach was not a seaman because he was not permanently assigned to any particular vessel or fleet of vessels." 947 F.2d at 1291.

   Similarly, in Stoller v. Evergreen, (N.D. Calif. 1992) (unpublished), the northern district of California held that a pilot should not be a Jones Act seaman because no employment relationship existed with the vessel.

[ED. NOTE: Thus, both the Fourth and the Fifth Circuits, have held that a river pilot is not a Jones Act seaman. Since a river pilot performs his duties on navigable water aiding in navigation and maritime commerce, he should be found to be covered under the LHWCA. Ironically, a river pilot possibly may be entitled to an unseaworthiness remedy under the general maritime law as a "Sieracki Seaman." See Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) (longshoreman injured while working aboard a ship was classified as a "seaman" and therefore entitled to sue under the unseaworthiness doctrine). This "Sieracki Seaman" classification was theoretically supposed to have ended with the enactment of the 1972 amendments to the LHWCA. In return for giving up general maritime law/unseaworthiness remedies for recovery, longshore and harbor workers were to benefit from the landward extension of coverage under the amended LHWCA.]

   In the Fifth Circuit, the Sieracki concept (see note above) is not completely obliterated. See Cormier v. Oceanic Contractors, 696 F.2d 1112 (5th Cir.), cert. denied, 464 U.S. 821 (1983); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). In Smith v. Harbor Towing & Fleeting, 910 F.2d 312 (5th Cir. 1990), cert. denied, 499 U.S. 906 (1991), however, the Fifth Circuit held that the remedy of unseaworthiness was available only to seamen or members of the crew of a vessel. But see: Blancq v. Hapag-Lloyd, 1997 WL 732421 (E.D.La.); Laakso v. Mitsui & Co. U.S.A., Inc., 1989 WL 149186 at *8-*9 (Dec. 6, 1989 E.D.La)(unpublished but still has precedential value under 5th Circuit Local Rules); Clark v. Solomon Navigation, Ltd., 631 F.Supp. 1275 (S.D.N.Y. 1986).

   The Third, Fourth, and Ninth Circuits have held to the contrary. (Remedy of unseaworthiness is available to non-seamen.) Normile v. Maritime Co. of Philippines, 643 F.2d 1380 (9th Cir. 1981); Lynn v. Heyl & Patterson, Inc., 636 F.2d 1209 (3d Cir. 1980), United States Lines v. United States, 593 F.2d 570 (4th Cir. 1979).

   The Board has held that a claimant is not a Jones Act seaman where the worker's assignment to a vessel was random, sporadic, and transitory; and where the claimant worked not only on the employer's 20 mooring launches, but also aboard tugboats and ocean-going vessels which employer had contracted to moor. Griffin v. T.Smith & Son, Inc., 25 BRBS 196 (1992). The Board reasoned that the claimant was never assigned to nor did he perform a substantial part of his work aboard any vessel; and claimant lacked any permanent connection with a fleet of vessels. Therefore, the claimant was deemed to be a linesman and boat operator who moored vessels at docks as a linesman and who drove boats around ships as a boat operator.

   Certain structures which are used for the exploration and production of oil and gas have produced a great amount of litigation over vessel status. In Offshore Co. V. Robison, 266 F.2d 769 (5th Cir. 1959), the court held that a floating submersible jack-up oil rig (see supra for definition) is a vessel since its inherent characteristic is the ability to be towed from place to place. Id. Since Robison, many structures designed to be moved on a regular basis have been held to be vessels. See Producers Drilling Co. V. Gray, 361 F.2d (5th Cir. 1966) (submersible drilling barge designed to transport drilling equipment, submerge for drilling operation, and refloat for movement to new site, is a vessel); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5th Cir. 1975) (submersible oil storage facility is a vessel); Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154 (5th Cir. 1983) (drilling tender, capable of transporting men and equipment, which is anchored for extended periods of time to fixed offshore platform, is a vessel).

   A "movable drilling unit" which had been moved only twice in 20 years and was attached to the bottom by pilings driven into the sea bed, though designed for navigation, was not "in navigation" at the time of injury and not intended to be moved and thus, was not a vessel. Hemba v. Freeport McMoran Energy Partners, 811 F.2d 276 (5th Cir. 1987); Marathon Pipe Line v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir. 1985) (floating, movable jack-up drilling rig is a vessel for purposes of admiralty law); Lewis v. Keyes 303, Inc., 834 F. Supp. 191 (S.D. Tex. 1993) (floating, movable jack-up drilling rig).

   However, several cases illustrate that floating structures are not always what they seem to be, or what they were constructed to be. Although these cases deal primarily with barges that have become work platforms, a case dealing with a small raft has provided the basis for a loose test to determine whether or not a platform is a "vessel." Bernard v. Binnings Constr. Co., 741 F.2d 824 (5th Cir. 1984).

   Floating work platforms which were determined not to be vessels had at least some of the following criteria in common:

(1) The structures were constructed/re-constructed for use primarily as work platforms;

(2) The structures were moored/secured when the injury occurred;

(3) Although "capable" of movement and sometimes moved, the transportation function was merely incidental to the primary purpose of serving as a work platform;

(4) The structure generally had no navigational lights and/or navigational equipment;

(5) The structures had no means of self-propulsion;

(6) The structures were not registered with the Coast Guard;

(7) The structures did not have crew quarters/a galley.

   This test is a composite based principally on Bernard, 741 F.2d 824, and the following noted cases. Bernard specifically set out the first three criteria. See 741 F.2d at 831.

   See also Green v. C.J. Langenfelder & Sone, Inc.,30 BRBS 77 (May 9, 1996) (dredge, with no engine or navigational capabilities except for pull lines, which was used to excavate oysters and load them onto barges, and moored to virtually the same position during each 6-month work cycle held not to be a vessel).

   See also Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir. 1995) (midstream bulk cargo transfer barge which was constructed/used primarily as work platform, which had been moored for ten years, and whose transportation function was incidental to its primary purpose, was not a vessel); Sharp v. Wausau Ins. Cos., 917 F.2d 885 (5th Cir. 1990), amended sub nom. Sharp v. Johnson Bros. Corp., 923 F.2d 46 (5th Cir. 1991) (four barge assemblies, including two spud barges and two flat deck barges used in connection with rebuilding a bridge and which were frequently moved during the work could be vessels--case remanded to trial court for a jury determination); Ellender v. Kiva Constr. & Eng'g, 909 F.2d 803 (5th Cir. 1990) (general purpose and spud barges assembled solely to build a platform were transported to a job until its completion; a crane temporarily positioned on the spud barge is not equivalent to a derrick barge); Menard v. Brownie Drilling Co., 1991 U.S. Dist. LEXIS 13531 (E.D. La. 1991) (workover rig placed on barge which was lowered and sunk until the job was finished, then floated to a new location was not a barge).

   See also Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5th Cir. 1990) (a quarter boat barge specially equipped with living quarters/work area brought to a shore, and which was spudded down and moored, was not a vessel); Ducrepont v. Baton Rouge Marine Enters., 877 F.2d 393 (5th Cir. 1989) (cargo barge converted to a stationary work platform by permanently mooring to shore and only moved short distances due to water level changes was not a vessel); Davis v. Cargill, Inc., 808 F.2d 361 (5th Cir. 1986) (cargo barge converted to a permanent painting and sandblasting work platform anchored to the river bed and permanently attached to land was not a vessel though moved to accommodate changing river tides).

   See also Waguespack v. Aetna Life & Casualty Co., 795 F.2d 523 (5th Cir. 1986), cert. denied, 479 U.S. 1094 (1987) (small floating work platform permanently located in a slip and used to facilitate removal of grain barge covers is not a vessel); Blanchard v. Engine & Gas Compressor Servs., 575 F.2d 1140 (5th Cir. 1978), question certified, 590 F.2d 594 (5th Cir. 1979) (barges sunk in marsh to use as compressor station and not moved in 15 years, with no intent to move are not vessels); Cook v. Belden Concrete Prods., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868 (1973) (barge which became a construction platform on which concrete barges were built, served as a stationary platform and was not a vessel).

   See also Ducote v. Keeler & Co., 953 F.2d 1000 (5th Cir. 1992) (for purposes of determining whether floating structure is a "vessel," one objective factor used to determine whether the primary purpose of the structure is that it is used for transportation, is raked bow. Although the mere presence of raked bow does not mean that the floating structure is a "vessel," raked bow is a piece of evidence from which conflicting inferences could be drawn).

   But see Tonnesen v. Yonkers Contracting Co., Inc., 82 F.3d 30 (2d Cir. 1996) (Second Circuit disagreed with regard to the first Bernard factor (namely, the Fifth Circuit's focus on the original purpose of the structure), finding that the first prong of the test should focus on the present purpose of the floating structure).

   In this regard, it is important to note that a floating dry dock may serve as a floating platform. See e.g., Bernard, 741 F.2d at 832. Tonnesen is also noteworthy for the fact that the Second Circuit reversed the district court's summary judgement on seaman status, remanding the matter for further fact-finding as to whether the floating platform was "a vessel in navigation." The Second Circuit noted several Fifth Circuit cases dealing with the factual determination necessary to determine vessel status. The circuit court determined that factual issues prevented summery judgement.

   Construction and Repairs

   A ship under construction on land, not on or in navigable waters and incapable of floating, is not a vessel. Richendollar v. Diamond M Drilling Co., 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987). (Note, however, that a person working on such a vessel would be covered under the LHWCA as a shipbuilder.)

   A hull under construction, floating on navigable waters, but not itself navigable, which did not yet have navigation equipment installed and had not undergone dock and sea trials, and had no crew assigned to it, did not qualify as a "vessel." Rosetti v. Avondale Shipyards, 821 F.2d 1083 (5th Cir. 1987), cert. denied, 484 U.S. 1008 (1988).

   A vessel being repaired on land does not necessarily lose its vessel status. In Chandris, Inc. v. Latsis, the Court held that a vessel does not cease to be "in navigation" merely because it is taken to a dry dock or shipyard to undergo repairs. __U.S.__, 115 S.Ct. 2172, 2193 (1995). The question of whether repairs are sufficiently significant so that the vessel can no longer be considered to be in navigation is a question of fact for the jury to decide. Id.

<   One must keep in mind that Section 903 provides compensation to workers who die or are injured while repairing or building a vessel. The above cases are included in the materials to remind the reader that the lack of a vessel means there is no Jones Act coverage, not that there is no LHWCA coverage.

   Helicopters, Seaplanes, etc.

   An amphibious military vehicle known as a LARC has been found to be a vessel under the LHWCA. Stevens v. Metal Trades, 22 BRBS 319 (1989).

   Aircraft, helicopters, and even seaplanes are ordinarily not vessels, since their purpose is to fly through the air, not to navigate on water. See Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982); Barger v. Petroleum Helicopters, 692 F.2d 337 (5th Cir. 1982), cert. denied, 461 U.S. 958 (1983); Herbert v. Air Logistics, Inc., 720 F.2d 853 (5th Cir. 1983).

   A seaplane that is navigating on the water may be a vessel, however. Reeves v. Offshore Logistics, Inc., 720 F.2d 835 (5th Cir. 1983).

   Airplane/helicopter pilots are not excluded from coverage under the LHWCA on the grounds that they are members of crews. A pilot traveling over water, however, is not automatically covered under the LHWCA as a maritime employee.

   In Ward v. Director, OWCP, 684 F.2d 1114, 15 BRBS 7 (CRT) (5th Cir. 1982), rev'g 14 BRBS 74 (1981), cert. denied, 459 U.S. 1170 (1983), the court cited Smith, 648 F.2d 1102, reiterating that a plane is not a vessel under the Jones Act and, therefore, that the airplane pilot, a fish spotter, was not excluded from LHWCA coverage as a member of a crew. The court found coverage because the claimant was injured on actual navigable waters. Importantly, the fish spotter was found to be engaged in maritime employment over navigable waters. See also Barnard v. Zapata Haynie Corp., 23 BRBS 267 (1990).

   A submerged cleaning and maintenance platform known as a SCAMP has been found to be a vessel. Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326 (9th Cir. 1983)(Relying on the "Bullis test," Bullis v. Twentieth Century Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973) the Ninth Circuit found that a SCAMP - a saucer-shaped unit six feet in diameter and twenty inches deep, which traveled underwater along a ship's hull and could be operated manually by divers - was a vessel.) The Bullis test was reaffirmed by the Ninth Circuit in Gizoni v. Southwest Marine Inc., 909 F.2d 385 (9th Cir. 1990), aff'd, 502 U.S. 81, 112 S.Ct. 486 (1991).

   It has been suggested that "three men in a tub would also fit within our definition [of vessel], and one probably could make a convincing case for Jonah inside whale." Burks v. American River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982).

Id. at 568.

   After analyzing the withdrawn-from-navigation factors and the work platform attributes, and comparing the characteristics of the Biloxi Belle with the structures which have been held as a matter of law to be non-vessels, the Fifth Circuit concluded that "there can be little doubt that indefinitely moored, shore-side, floating casinos, such as the Biloxi Belle, must be added to that list." Id. at 570. Consequently, the court held that the Biloxi Belle was removed from navigation and was a work platform so that it did not qualify as a vessel. Id.

   The weight of the trial court decisions also establish that a floating dockside casino is not a vessel. Ketzel v. Mississippi Riverboat Amusement, Ltd., 1995 AMC 1385, 867 F. Supp. 1260 (S.D. Miss. 1994) ("Similar to [a] floating factory' and [a] floating dance hall' , the Biloxi Belle is nothing but a floating casino' it is not a vessel'"); In Re: Biloxi Casino Belle Inc., White v. MRA, LTD, d/b/a/ Casino Belle of Tunica, 176 Bankr. 427 (1995).

[ED. NOTE: Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's compl