United States Court of Appeals
For the First Circuit
Nos. 99-1487
00-1090
02-1713
WILLARD STEWART,
Plaintiff, Appellant,
v.
DUTRA CONSTRUCTION COMPANY, INC.,
Defendant, Appellee.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
David B. Kaplan, Thomas M. Bond, and The Kaplan/Bond Group on
supplemental brief for appellant.
Frederick E. Connelly, Jr., and Peabody & Arnold LLP on
supplemental brief for appellee.
August 9, 2005
SELYA, Circuit Judge. This case comes before us on
remand from the United States Supreme Court. The question is
whether, in light of the Court's decision in Stewart v. Dutra
Construction Co., 125 S. Ct. 1118 (2005) (Stewart III), we should
rule, as a matter of law, that the plaintiff was a seaman for Jones
Act purposes. After studying the Court's decision and the parties'
supplemental briefs, we answer this question in the affirmative and
remand the case to the district court for trial on the remaining
Jones Act issues (e.g., liability, causation, and damages).
For present purposes, a decurtate sketch of the
background suffices. On July 15, 1993, plaintiff-appellant Willard
Stewart, an employee of defendant-appellee Dutra Construction Co.,
was injured while serving as an engineer on the dredge SUPER SCOOP
in Boston Harbor. Stewart sued Dutra in the United States District
Court for the District of Massachusetts. After some procedural
skirmishing, not relevant here, he filed an amended complaint
setting forth alternative statements of claim. See Fed. R. Civ. P.
8(a) (authorizing a pleader to seek "[r]elief in the alternative").
In a count premised on the Jones Act, 46 App. U.S.C. §
688(a), the plaintiff asserted that he was a seaman injured as a
result of negligence attributable to the SUPER SCOOP's owner
(Dutra). In a different and inconsistent count, premised on the
Longshore & Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §
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905(a), he asserted that he was a harbor worker, not a seaman, and
that he was entitled as such to recover compensation from Dutra.
In due course, Dutra moved for summary judgment on the
Jones Act claim. See Fed. R. Civ. P. 56(c). The district court
granted the motion on March 29, 1999, and the plaintiff appealed.
See 28 U.S.C. § 1292(a)(3) (allowing interlocutory appeals of
orders that "determin[e] the rights and liabilities of the parties
to admiralty cases"). This court, bound by stare decisis, affirmed
the entry of summary judgment on the ground that the SUPER SCOOP
was not a "vessel" for Jones Act purposes (and, therefore, the
plaintiff did not qualify as a seaman). Stewart v. Dutra Constr.
Co., 230 F.3d 461, 469 (1st Cir. 2000) (Stewart I) (citing
DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir. 1992)
(en banc)).
In later proceedings, the district court entered summary
judgment for the defendant on the LHWCA claim as well. We rebuffed
the plaintiff's ensuing appeal. Stewart v. Dutra Constr. Co., 343
F.3d 10, 18 (1st Cir. 2003) (Stewart II). The plaintiff then filed
a petition for a writ of certiorari to determine the SUPER SCOOP's
status. The Supreme Court granted the petition, 540 U.S. 1177
(2004), reversed our decision in Stewart I, and remanded the case
for further proceedings. Stewart III, 125 S. Ct. at 1129.
Whatever uncertainty trails in the wake of the Court's
decision is largely of the Court's own making. Although the
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certiorari petition's primary focus was on the Jones Act claim, the
Stewart Court explained that it had "granted certiorari to resolve
confusion over how to determine whether a watercraft is a 'vessel'
for purposes of the LHWCA." Id. at 1123. Closely read, however,
the opinion itself clears up any apparent confusion. It notes
that the LHWCA and the Jones Act are "complementary regimes that
work in tandem" and, hence, that the definition of what constitutes
a "vessel" for purposes of either statute is the same. Id. In
this sense, then, the LHWCA and the Jones Act are two sides of the
same coin. Since a Jones Act claim is at issue here, we
concentrate on that side of the coin.
The Jones Act does not define the word "vessel." In
giving meaning to that word, the Supreme Court looked to language
in § 3 of the Revised Statutes of 1873 (codified at 1 U.S.C. § 3),
which provides a "default definition of 'vessel' throughout the
U.S. Code, 'unless the context indicates otherwise.'" Stewart III,
125 S. Ct. at 1124 (quoting the statute). Under that definition,
"[t]he word 'vessel' includes 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. In reliance
thereon, the Court concluded that dredges are vessels because they
"serve[] a waterborne transportation function, since in performing
their work they carr[y] machinery, equipment, and crew over water."
Stewart III, 125 S. Ct. at 1126.
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To be sure, the Court recognized that "a watercraft is
not 'capable of being used'" as such — and thus not a vessel — "if
it has been permanently moored or otherwise rendered practically
incapable of transportation or movement." Id. at 1127. Although
the determination of whether a particular watercraft fits within
the exception typically involves factual questions, id. at 1128, no
such questions existed here because Dutra had "conceded that the
SUPER SCOOP was only temporarily stationary while Stewart and
others were repairing the scow" and that "the SUPER SCOOP had not
been taken out of service, permanently anchored, or otherwise
rendered practically incapable of maritime transport." Id.
Accordingly, the exception did not help Dutra; the SUPER SCOOP "was
a vessel within the meaning of 1 U.S.C. § 3." Id. at 1129. That
conclusion dictated an identical result under the Jones Act. See
id.
On remand, the defendant strives to persuade us that a
jury must decide whether the SUPER SCOOP was a vessel because
factual disputes linger as to whether the dredge was capable of
maritime transport. This is whistling past the graveyard. The
Supreme Court addressed this very issue and found that no factual
questions remain open. See id. at 1128. Because Dutra is trying
to relitigate a point squarely addressed and authoritatively
resolved by the Supreme Court, its effort is doomed to failure.
See McCoy v. Mass. Instit. of Tech., 950 F.2d 13, 19 (1st Cir.
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1991) (reiterating that federal appellate courts are bound by the
Supreme Court's determinations).
Dutra makes a second argument as well. In order for an
employee to be considered a seaman for Jones Act purposes, three
requirements must be met: (i) the watercraft on which he was
working when injured must have been a vessel; (ii) his duties must
have contributed to the vessel's function or mission; and (iii) his
connection to the vessel must have been substantial both in nature
and in duration. Stewart III, 125 S. Ct. at 1127. Even if the
SUPER SCOOP is a vessel, Dutra says, the plaintiff must be denied
Jones Act protection at this stage of the game because he cannot
satisfy the remaining two elements of the "seaman" definition (or,
at least, those elements remain open for jury determination in
subsequent proceedings). This argument is too little and too late.
In the first place, uncontradicted evidence in the record
makes plain both that the plaintiff's work contributed to the
performance of the SUPER SCOOP's mission and that his connection to
the dredge was substantial both in nature and duration. No less an
authority than the Supreme Court stated that Dutra effectively had
conceded as much. Stewart III, 125 S. Ct. at 1122 ("The company
acknowledged that Stewart was a member of the SUPER SCOOP's crew;
that he spent ninety-nine percent of his time while on the job
aboard the SUPER SCOOP; and that his duties contributed to the
function of the SUPER SCOOP.") (alterations, citations, and
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internal quotation marks omitted). It is too late in the day for
Dutra to attempt to backtrack on this acknowledgment.
In the second place, prior to this point Dutra has
asserted only that the SUPER SCOOP is not a vessel. It has not
heretofore challenged either of the remaining two prongs of the
seaman definition. See, e.g., id. at 1122; Stewart I, 230 F.3d at
466. The failure to raise these legal theories in the previous
proceedings constitutes a waiver.1 See Teamsters, Chauffeurs,
Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17,
21 (1st Cir. 1992) (holding that legal theories not raised squarely
in prior proceedings are waived); cf. United States v. Sacko, 247
F.3d 21, 24 (1st Cir. 2001) (holding that a party who failed to
present an argument in previous appellate proceedings "may not
revive in the second round an issue he allowed to die in the
first").
We need go no further. The Supreme Court decision,
viewed against the backdrop of the record and the proceedings to
this point, shows beyond hope of contradiction that the plaintiff
must be regarded as a seaman for Jones Act purposes. On that
understanding, we remand the matter to the district court for
further proceedings with respect to the remaining elements of the
1
We do not mean to imply that a party who seeks summary
judgment on one ground automatically waives other grounds should
its motion be denied. Here, however, Dutra made certain
concessions on appeal, and it cannot escape the effect of those
concessions.
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plaintiff's Jones Act claim (e.g., liability, causation, and
damages).
So Ordered.
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