Stewart v. Dutra Construction

United States Court of Appeals
For the First Circuit

Nos. 99-1487
00-1090

WILLARD STEWART,

Plaintiff, Appellant,

v.

DUTRA CONSTRUCTION COMPANY, INC.,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

David B. Kaplan, with whom Thomas M. Bond and The
Kaplan/Bond Group were on brief, for appellant.
John J. O'Connor, with whom Frederick E. Connelly, Jr. and
Peabody & Arnold LLP were on brief, for appellee.

October 31, 2000
 SELYA, Circuit Judge. In a case reminiscent of

Coleridge's storied seafarer, who was doomed to tell the same

tale over and over again, see Samuel T. Coleridge, Rime of the

Ancient Mariner (1798), plaintiff-appellant Willard Stewart

invites us to reexamine, narrow, or distinguish our holding in

DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir. 1992)

(en banc), and declare his floating work platform — a dredge

engaged in the excavation of a tunnel in the Boston Harbor — to

be a "vessel in navigation" as that term is used in the

jurisprudence of the Jones Act, 46 U.S.C. app. § 688. We

conclude that we are bound by our en banc precedent and that,

under it, the dredge in question is not a vessel in navigation

within the contemplation of the Jones Act. Consequently, we

affirm the district court's entry of partial summary judgment in

the defendant-employer's favor.

I. BACKGROUND

We divide our depiction of the relevant background into

three segments. The facts are mostly undisputed. Consistent

with the conventional summary judgment praxis, we take the few

controverted facts in the light most flattering to the nonmovant

(here, the appellant). See McCarthy v. Northwest Airlines,

Inc., 56 F.3d 313, 315 (1st Cir. 1995).

A. The Dredge.

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 The SUPER SCOOP is a large floating platform — its

exact dimensions do not appear in the record — equipped with a

clamshell bucket. It operates as a dredge, removing silt from

the ocean floor and dumping the sediment onto one of two scows

that float alongside. Once the scows are full, tugboats tow

them out to sea and dispose of the dredged material.

Though largely stationary, the SUPER SCOOP has

navigation lights, ballast tanks, and a dining area for the

crew. Crew members control the clamshell bucket by manipulating

a tag-line cable attached to a counterweight. The SUPER SCOOP

is incapable of self-propulsion. Crew members use anchors and

cables to achieve positional movement at near-glacial speeds.

The SUPER SCOOP typically moves once every two hours, covering

a distance of thirty to fifty feet. Its scows also lack any

means of self-propulsion. Tugboats normally are used to achieve

movement. Alternatively, the dredge's crew drops a bucket from

the dredge into one of the scow's hoppers; by manipulating the

cables, the crew then swings the bucket so that it guides the

scow around the dredge.

The SUPER SCOOP is classified as an industrial vessel,

and as such, it is required to register and comply with safety

regulations issued by the Coast Guard and the United States

Department of Transportation. Similarly, the American Bureau of

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Shipping has issued a load-line certificate to the SUPER SCOOP.

B. The Incident.

Defendant-appellee Dutra Construction Company (Dutra)

hired the appellant, a marine engineer, to maintain the

mechanical systems of the SUPER SCOOP. Dutra purposed to use

the SUPER SCOOP to help construct an immersed-tube tunnel across

the Boston Harbor. The operational plan called for floating

prefabricated tube sections to the site, sinking the tubes into

a previously dredged trench, and then covering the sunken tubes

with backfill.

The appellant began work in late 1991. The SUPER SCOOP

started to dig the cross-harbor trench needed for the tunnel.

The process was long and laborious. It was still ongoing on

July 15, 1993. On that date, however, the SUPER SCOOP lay idle

because one of its scows (Scow No. 4) was out of commission and

the other was at sea.

During this lull, the appellant boarded Scow No. 4 to

effect repairs. While he was working, the SUPER SCOOP's crew

proceeded to move the scow. When the scow reached its new

position on the SUPER SCOOP's starboard side, the two structures

collided. Dislodged by the collision, the appellant plummeted

headfirst to a deck below. He sustained serious injuries.

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 C. The Travel of the Case.

The appellant subsequently sued Dutra in the United

States District Court for the District of Massachusetts. One

count of his complaint invoked the Jones Act. After a

substantial period of pretrial discovery, Dutra moved for

summary judgment on all counts. See Fed. R. Civ. P. 56. In due

course, the district court, ruling ore tenus, denied the motion

as to certain counts, but granted brevis disposition on the

Jones Act count. This interlocutory appeal followed.1

II. APPELLATE JURISDICTION

We turn briefly to the threshold issue of appellate

jurisdiction. See BIW Deceived v. Local S6, 132 F.3d 824, 828

(1st Cir. 1997) (explaining that a federal court has an

unflagging obligation to inquire into its own jurisdiction).

In civil cases, the usual source of appellate

jurisdiction is 28 U.S.C. § 1291 (conferring appellate

jurisdiction over "final decisions" of the district courts).

Here, however, the order granting partial summary judgment did

not dispose of all the claims asserted. Thus, this court lacks

jurisdiction under section 1291. See North Carolina Nat'l Bank

1
In fact, there are two appeals before us — but the second
is from the district court's denial of a rehearing. Because it
adds nothing to the dimensions of the case, we proceed as if the
appellant had filed only an appeal from the entry of the order
granting partial summary judgment.

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v. Montilla, 600 F.2d 333, 334-35 (1st Cir. 1979) (per curiam);

see generally FDIC v. Ogden Corp., 202 F.3d 454, 458-59 (1st

Cir. 2000) (discussing concept of finality).

Withal, there are exceptions to the "final judgment"

rule — and one such exception pertains here. Congress, in its

wisdom, has enacted a special statute that permits immediate

appeals from interlocutory district court orders "determining

the rights and liabilities of parties to admiralty cases in

which appeals from final decrees are allowed." 28 U.S.C. § 1292

(a)(3). Thus, an interlocutory order in an admiralty case can

be appealed immediately so long as it conclusively determines

the merits of a particular claim or defense. Martha's Vineyard

Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned

Steam Vessel, 833 F.2d 1059, 1062-64 (1st Cir. 1987).

The case at hand satisfies that requirement: the

district court's order determining, as a matter of law, that the

SUPER SCOOP was not a vessel in navigation within the purview of

the applicable Jones Act jurisprudence (and that, therefore, the

appellant had no cognizable claim under that statute) plainly

implicates section 1292(a)(3). Accordingly, we have

jurisdiction to hear and determine this appeal.

III. THE MERITS

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 Having reached the merits, we first frame the issue.

We then group the appellant's arguments and address them under

two headings.

A. Framing the Issue.

The Jones Act provides in pertinent part:

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 . . . .

46 U.S.C. app. § 688(a). Congress enacted this legislation in

1920 to protect seamen because of their exposure to the perils

of the sea. Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995).

That taxonomy seems straightforward, but it is hardly self-

elucidating — and the devil is in the details. As a result, the

determination of who qualifies as a seaman for this purpose has

proven to be a gnarly proposition. E.g., id. at 356 (bemoaning

that, due to definitional difficulties, the "perils of the sea,

which mariners suffer and shipowners insure against, have met

their match in the perils of judicial review") (citation

omitted).

Over time, the Court has untangled some of the

doctrinal knots. Although the Jones Act itself does not use the

word "vessel," the Court has placed a gloss on the statute.

This gloss clarifies that a prospective plaintiff's status as a

seaman (and, therefore, his eligibility to sue under the Jones

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Act) depends, in the first instance, on his connection to a

"vessel in navigation." McDermott Int'l, Inc. v. Wilander, 498

U.S. 337, 354 (1991). But the Justices have spoken rather

elliptically as to the nature of that connection, e.g.,

Chandris, 515 U.S. at 368-71; Wilander, 498 U.S. at 354-57, and

they have left the lower courts to fret, largely unguided, over

what is — or is not — a vessel in navigation. That question is

of utmost importance here, as Dutra acknowledges the appellant's

status as a member of the SUPER SCOOP's crew. The pivotal

issue, then, is whether the SUPER SCOOP, at the time of the

accident, was a vessel in navigation as that term is used in the

jurisprudence of the Jones Act.

In many cases, the deceptively simple question of

whether a particular floating object is a vessel in navigation

reduces to a question of fact. See Chandris, 515 U.S. at 373.

But when the facts and the reasonable inferences extractable

therefrom, viewed in the light most congenial to the injured

worker, bring a particular structure outside any permissible

understanding of the term, the court may determine the status of

the structure as a matter of law. See Tonnesen v. Yonkers

Contracting Co., 82 F.3d 30, 33 (2d Cir. 1996); Bennett v.

Perini Corp., 510 F.2d 114, 116 (1st Cir. 1975). Believing that

this case came within that class of cases, the court below opted

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to decide the issue. And, it concluded that the dredge was not

a vessel in navigation. We review its determination de novo.

See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).

B. Stare Decisis.

In attempting to convince us that the district court

erred in not deeming the SUPER SCOOP a vessel in navigation for

Jones Act purposes, the appellant runs headlong into controlling

precedent. Eight years ago, this court, sitting en banc,

confronted a case in which a plaintiff had sustained injuries

while working aboard the barge BETTY F. We described the barge

as follows:

The BETTY F was a barge, 100 feet in length,
with a 40 foot beam and a raked bow and
stern, and with nautical equipment, such as
navigation and anchor lights. In all
respects it met the commonly understood
characteristics of a vessel, and, indeed,
was inspected by the Coast Guard. It had no
means of self-propulsion, except that
positional movement could be achieved by
manipulating its spud anchors. Its current
use was to float at the Jamestown, Rhode
Island, bridge, bearing a crane that was
being used for bridge construction. . . . It
had been at the Jamestown bridge for a
month. It was positioned about the bridge,
and moved away from the pilings at night, to
prevent damage.

DiGiovanni, 959 F.2d at 1120-21.

DiGiovanni, whose main responsibility was to handle a

tag-line to guide the crane, slipped and fell while standing on

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the deck of an appurtenant supply barge (which served as a work

platform). Id. at 1121. He attempted to sue under various

theories. We rejected his Jones Act claim on the basis that the

BETTY F was not a vessel in navigation. Id. at 1124. We held

squarely that "if a barge, or other float's 'purpose or primary

business is not navigation or commerce,' then workers assigned

thereto for its shore enterprise are to be considered seamen

[for Jones Act purposes] only when it is in actual navigation or

transit." Id. at 1123 (quoting Bernard v. Binnings Constr. Co.,

741 F.2d 824, 829 (5th Cir. 1984)).

The appellant exhorts us to scuttle the holding of

DiGiovanni, denouncing the standard it embodies as impractical,

unwise, and inconsistent with the decisions of other courts

(including the Fifth Circuit). But our precedent-based system

of justice places a premium on finality, stability, and

certainty in the law, particularly in the field of statutory

construction. See Hubbard v. United States, 514 U.S. 695, 711

(1995). Thus, the principle of stare decisis — the doctrine

that "renders the ruling of law in a case binding in future

cases before the same court or other courts owing obedience to

the decision," Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st

Cir. 1993) — is an integral component of our jurisprudence.

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This principle, fairly applied, demands our allegiance to

DiGiovanni.

We do not pledge this allegiance blindly. We recognize

that "stare decisis is neither a straightjacket nor an immutable

rule." Carpenters Local Union No. 26 v. United States Fid. &

Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000). Nevertheless, a

departure from a court's own precedent, in the teeth of the

principle of stare decisis, must be supported by some "special

justification." Dickerson v. United States, 120 S. Ct. 2326,

2336 (2000). For example, prior circuit precedent will yield to

a contrary decision of the Supreme Court or to a statutory

overruling. Williams v. Ashland Eng'g Co., 45 F.3d 588, 592

(1st Cir. 1995).2 Here, however, no subsequent opinion of the

Supreme Court has cast doubt on DiGiovanni, nor has the Jones

Act been amended in any relevant respect. Consequently, no

"special justification" exists to support a deviation from

circuit precedent.

In Williams, we also noted that on rare occasions a

circuit precedent, though not directly overruled or superseded,

nonetheless might crumble in the face of compelling authority.

2
In Williams, we also spoke of a subsequent decision of the
court itself, sitting en banc. 45 F.3d at 592. That
justification does not apply here; DiGiovanni is an en banc
opinion, and the full court has not repudiated it.

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See id. We speculated that this might occur, say, when

persuasive case law postdating "the original decision, although

not directly controlling, nevertheless offers a sound reason for

believing that the former panel, in light of fresh developments,

would change its collective mind." Id. We are dubious that

this scenario can ever play out where, as here, a panel of a

court finds its path blocked by an earlier decision of the full

court. Cf. Ewing v. Williams, 596 F.2d 391, 397 (9th Cir. 1979)

(declaring that "an appellate panel simply cannot modify an en

banc decision"). A contrary rule — permitting a single panel in

a multi-panel circuit to revisit determinations made by the

court as a whole — would invite chaos. For that reason, panels

generally are precluded from following such a maverick course.

E.g., United States v. Norton, 780 F.2d 21, 23 (8th Cir. 1985);

United States v. Poolaw, 588 F.2d 103, 105 (5th Cir. 1979); cf.

Biggins v. Hazen Paper Co., 111 F.3d 205, 208 (1st Cir. 1997)

(holding that a panel may not reconsider issues decided earlier

in the same case by the en banc court).

In this case, all roads lead to Rome. DiGiovanni has

not been overruled by a higher authority and remains good law.

Even if we assume, for argument's sake, that in some

extraordinary circumstance a panel might be warranted in

declaring an earlier en banc decision obsolete and refusing to

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follow it, the appellant has offered no adequate justification

for applying such a long-odds exception here. We hold,

therefore, that we are bound by DiGiovanni.

C. Other Arguments.

The appellant's remaining arguments take a different

tack. He posits that, even under DiGiovanni, the SUPER SCOOP

qualifies as a vessel in navigation. This argument depends, in

the last analysis, on the appellant's ability to distinguish the

SUPER SCOOP from its DiGiovanni counterpart, the BETTY F. Like

the district court, we are unable to discern a meaningful

distinction.

To begin with, the appellant claims that the DiGiovanni

standard does not apply to the SUPER SCOOP at all because that

standard only applies to "barges or other floats." DiGiovanni,

959 F.2d at 1123. He then brings to bear a potpourri of other

criteria, citing, on the one hand, to formulations drawn from

statutes (other than the Jones Act), Coast Guard

classifications, and encyclopedia definitions, and, on the other

hand, to the SUPER SCOOP's appurtenances (such as ballast tanks,

navigational lights, and the like). These attributes, he says,

show that the SUPER SCOOP is a vessel in navigation. This

attempt to maneuver around DiGiovanni quickly runs aground.

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 In the first place, when the DiGiovanni court spoke of

"floats," that word was meant to encompass a wide variety of

objects. Surely, a dredge falls within its sweep. To read

DiGiovanni more narrowly, as the appellant urges, would strip

the en banc court's holding of all practical meaning.

In the second place, the term "vessel in navigation,"

as it has been employed in the Jones Act context, is a term of

art. Jones Act recovery hinges not on the physical

characteristics of a structure or on how others might view it,

but, rather, on the structure's function and use. Thus, in

DiGiovanni, the court refused to place decretory significance on

maritime classifications or equipage. See id. Indeed, the

DiGiovanni dissent made exactly the same sort of plea that the

appellant makes here, see id. at 1124-25 (Torruella, J.,

dissenting), and the full court nonetheless held the BETTY F not

to be a vessel in navigation for Jones Act purposes.3 Consistent

with that approach, we conclude that a dredge like the SUPER

SCOOP comes within the compass of this court's holding in

DiGiovanni.

3
Like the SUPER SCOOP, the BETTY F possessed "the commonly
understood characteristics of a vessel"; for instance, it was
registered with the Coast Guard, obliged to comply with various
safety regulations applicable to ships, and had navigation
lights, ballast tanks, and the like. See DiGiovanni, 959 F.2d
at 1120. We could continue, but the point is readily evident.

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 The appellant next notes that, according to the

DiGiovanni court, a barge or float may be considered a Jones Act

vessel if "its purpose or primary business" is navigation or

commerce. Id. at 1123. Seizing on this statement, he alleges

that the SUPER SCOOP qualifies under this rubric. In his view,

dredging itself is a form of navigation and transportation: to

dredge, the SUPER SCOOP must transport the clamshell bucket and

associated equipment across the harbor, and must cause the

dredged material to be carried out to sea. He notes, too, that

the SUPER SCOOP was situated in the harbor at the time of the

accident, had a captain and a crew (but no shoreside employees),

and carried navigational equipment.

This construct distorts the functional analysis that

we endorsed in DiGiovanni. That analysis focuses on primary

functions and, at bottom, dredging is primarily a form of

construction. Any navigation or transportation that may be

required is incidental to this primary function. In this

respect, the only real distinction between the SUPER SCOOP and

the BETTY F is that the former was being used in the

construction of a cross-harbor tunnel while the latter was being

used in the construction of an over-the-bay bridge. It does not

help the appellant that both structures were moved with some

regularity across navigable waters; even regular movement of a

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floating structure across navigable waters will not transform

that structure into a vessel when that motion is incidental to

the central purpose served by the structure. See Bernard, 741

F.2d at 830-31. Because both the SUPER SCOOP and the BETTY F

were floating stages used primarily as extensions of the land

for the purpose of securing heavy equipment to construct a

passage across the sea, neither is a vessel in navigation within

the jurisprudence of the Jones Act. See Powers v. Bethlehem

Steel Corp., 477 F.2d 643, 646 (1st Cir. 1973).

The appellant has one last fallback position. He

maintains that even if the SUPER SCOOP was not a vessel in

navigation, Scow No. 4 — the structure on which he was working

when the accident occurred — was a vessel in navigation because

it was actually in transit at that time. Building on this

foundation, he argues that since Scow No. 4 was part of the

SUPER SCOOP's flotilla, liability under the Jones Act should

attach.

This argument, too, is targeted at an exception to the

rule laid down in DiGiovanni. There, we recognized that, even

if a floating structure's primary purpose was not navigational,

workers nonetheless might be considered seamen within the

contemplation of the Jones Act if the structure "is in actual

navigation or transit" at the time an injury occurred.

DiGiovanni, 959 F.2d at 1123. The facts of this case, however,

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do not bring the appellant within the contours of this

exception.

First and foremost, the appellant's status as a seaman

depends upon the movement vel non of the SUPER SCOOP, not the

incidental positioning of an appurtenant scow. The

determinative factor in this equation is that the appellant was

assigned permanently to (i.e., was part of the crew of) the

SUPER SCOOP, not Scow No. 4. See Bennett, 510 F.2d at 116-17.

And by his own admission, the SUPER SCOOP was not in motion when

the accident occurred. Thus, the fact that the scow was being

moved is irrelevant. See DiGiovanni, 959 F.2d at 1124 (holding

that the plaintiff's location on the supply barge at the time of

the accident did not alter his status). The DiGiovanni

exception does not obtain.

In an effort to sail around this obstacle, the

appellant asseverates that we should attach significance to Scow

No. 4's movement at the time of the accident because the scow

was a part of the SUPER SCOOP's flotilla. This asseveration

misconstrues Supreme Court precedent. The Court has held that

a plaintiff's relationship to a fleet of vessels, rather than to

a particular ship, can establish the connection needed to confer

seaman status. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548,

555-57 (1997); Chandris, 515 U.S. at 368. Here, however, the

connection element is not in issue (Dutra has conceded the

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point). The common ownership of the dredge and scow has no

probative force on the subjacent issue: whether the floating

work station was — or was not — a vessel in navigation for Jones

Act purposes. See DiGiovanni, 959 F.2d at 1124.

IV. CONCLUSION

We need go no further. Given the on-point precedent

established by the en banc court less than a decade ago and the

absence of any trialworthy issue of material fact, the SUPER

SCOOP is not a "vessel in navigation" as that term has developed

in the jurisprudence of the Jones Act. Consequently, the lower

court appropriately jettisoned the Jones Act count.

Affirmed.

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