Shade v. Great Lakes Dredge

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

9-3-1998

Shade v. Great Lakes Dredge
Precedential or Non-Precedential:

Docket 97-2023

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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1998/212

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Filed September 3, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-2023

JOHN D. SHADE

v.

GREAT LAKES DREDGE & DOCK COMPANY,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 97-00739)

Argued July 30, 1998

BEFORE: GREENBERG, SCIRICA, and MCKEE,
Circuit Judges

(Filed: September 3, 1998)

Robert B. White, Jr. (argued)
Rapp, White, Janssen & German,
P.C.
1800 John F. Kennedy Boulevard
Suite 500
Philadelphia, PA 19103

Attorneys for Appellant
 Marvin I. Barish (argued)
Marvin I. Barish Law Offices, P.C.
Sixth & Walnut Streets
The Curtis Center, Suite 801
Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. JURISDICTION

Great Lakes Dredge & Dock Company appeals from a
final judgment entered in favor of appellee, John D. Shade,
on October 22, 1997, pursuant to a jury verdict for Shade
in the amount of $870,000, and from the denial of its
renewed motion to alter or amend the judgment, or, in the
alternative, for a new trial entered on November 19, 1997.
The district court had jurisdiction over this case under 28
U.S.C. S 1331, and this court has jurisdiction pursuant to
28 U.S.C. S 1291.

II. FACTUAL AND PROCEDURAL HISTORY

The U.S. Army Corps of Engineers awarded Great Lakes
a contract to dredge and renourish the beach at Cape May,
New Jersey, which Great Lakes began performing on
November 12, 1994. This project consisted of removing
sand from the ocean floor at offshore locations and
transferring the sand to the beach through 6600 feet of
steel pipe, known as the submersible line. See app. at 637-
40. The dredge Long Island removed the sand from the
ocean floor; and once its hopper compartments were full,
the tug Conlon propelled the dredge to a self-contained
offshore transfer station buoy ("scots buoy"), a large round
floating buoy secured by four anchors. See id. at 337, 689.
In order to transport the sand to the beach, the dredge
would secure itself to a pipe attached to the scots buoy
which in turn was connected to the submersible line. The

2
dredge then would pump its load of sand into the pipe and
through the submersible line. Upon reaching the beach, the
submersible line ended at a "Y" valve. This valve, which
controlled the flow of the sand, connected the submersible
line to an additional line, known as the shore line,
extending in both directions along the beach parallel to the
ocean. As the sand flowed out of either end of the shore
line, bulldozers positioned the sand on the beach according
to a predetermined plan.

Shade arrived at the Cape May worksite on the night of
December 8, 1994, and began to work for Great Lakes at
the site on December 9, 1994. See id. at 472. Since 1974,
Shade had been employed by various companies to assist
in such dredging projects; and in the four years prior to his
injury, the majority of his work had been with Great Lakes.
See id. at 468-69. Shade received his work assignments
through his union, Local 25, Marine Division, International
Union of Operating Engineers, AFL-CIO. When he was
unemployed, Shade would place his name on the out-of-
work list until Local 25 assigned him to a new job. See id.
at 346-48, 519-20.

Great Lakes previously employed Shade from September
1992 until February 1994. See id. at 54-55, 509-10.
However, beginning in March 1994, Shade worked for
Bean-Weeks Joint Venture, another dredging contractor, as
a deckhand. See id. at 55, 510. Bean-Weeks subsequently
fired Shade, and he remained without work until Great
Lakes hired him for the Cape May job.

Great Lakes asserted that it hired Shade for Cape May as
a shoreman, see id. at 648, pursuant to its contract with
Local 25 which mandated the hiring of a shoreman for this
type of job. See id. at 69, 684-87. In fact, Great Lakes'
superintendent, David P. Rappe, and the Local 25 union
steward, Cecil C. Jackson, Sr., both testified that Great
Lakes hired Shade as a shoreman. See id. at 687, 794; see
also id. at 648 (testimony of deck captain James D. Joyner),
772-73 (testimony of shoreman Joseph H. Gurganus).

Shade, on the other hand, contended that Great Lakes
hired him as a deckhand assigned to the anchor barge 110,
which assisted in the dredging operation, see id. at 479,

3
and that the shore gang was already in place when he
arrived to work at Cape May. See id. at 472. Both Shade
and his supervisor, Mark Oldham, testified that he was
employed primarily on the navigable waters off Cape May.
See id. at 316-17, 473-84. In fact, Oldham testified that
Shade was on the water 90% of the time that he worked at
the Cape May project. See id. at 316-17.

When Shade arrived at Cape May, the submersible line
had been laid, the scots buoy was in place, and the Long
Island had begun to dig the first portion of sand from the
ocean floor. See id. at 473, 642-43, 681-83, 793-94. The
dredge filled its hoppers and connected to the scots buoy,
but it was not able to pump the sand to the beach because
of a hole in the submersible line. See id. at 157. As a result,
from December 9th, when Shade began to work at Cape
May, until the early morning hours of December 13th,
Shade worked on the water assisting in the repair of the
submersible line, see id. at 690-92, while assigned to
anchor barge 110. See id. at 473-75.

After the workers completed the repair of the submersible
line, the Long Island once again had the capacity to pump
sand to the beach. However, between December 13th and
December 30th, the dredge only operated from the evening
of December 19th until December 22nd and from the
evening of December 25th until December 30th because of
poor weather conditions. See id. at 249-66, 694-99. Great
Lakes presented evidence that during the periods of bad
weather, Shade remained on the beach, assisting welders
and waiting on standby in case the weather cleared. See id.
at 601-02, 699-700, 745-46. Shade, on the other hand,
contended that during poor weather he would work in the
harbor which was protected from the rough seas. See id. at
311-14. For instance, Shade testified that he helped
construct a second submersible line, see id. at 480, and
assisted in repairing the scots buoy. See id. at 558-59; see
also id. at 305-15 (testimony of Oldham).

Great Lakes offered testimony that when the dredge was
able to pump sand to the beach, Shade performed the work
of a shoreman on the beach. See id. at 695-99. For
example, Shade assisted welders in securing the shore line,
operated the "Y" valve, and put fuel in welding machines.

4
See id. at 536-37, 769. Shade disputed Great Lakes'
account of his work between December 19th and December
22nd, and testified that he worked on the water during that
period. See id. at 556. However, he did not dispute that he
primarily worked on the beach performing these shore
based duties from December 25th until December 30th. See
id.

While working on the beach on December 30th, Shade
assisted Oldham in refueling a welding machine, a
procedure which required lifting the machine with a front-
end loader. See id. at 485-87. While Oldham was operating
the loader, the raised claw of the loader dropped
unexpectedly and severed Shade's thumb. See id. at 486-
88. Shade testified that even though doctors were able to
reattach his thumb, see id. at 491, he basically has no use
of the thumb, see id. at 501-02, and could not return to
work in his prior capacity. See id. at 502-03.

After initially receiving benefits under the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. S 901 et seq.
("LHWCA"), Shade filed a complaint against Great Lakes on
January 31, 1997, seeking damages under the Jones Act,
46 U.S.C. app. S 688(a), and the general maritime law
doctrine of unseaworthiness. On September 8, 1997, Great
Lakes filed a motion for summary judgment on the ground
that Shade was not a seaman. The district court denied this
motion without opinion on September 24, 1997. On
October 7, 1997, Great Lakes filed a motion in limine to
preclude testimony at trial regarding Shade's prior
employment with Great Lakes. The district court, however,
deferred ruling on the motion and at the trial ultimately
permitted Shade to introduce evidence of his prior
employment. See app. at 54-55, 509-10.

A jury trial began on October 14, 1997, solely on the
Jones Act claim. At the conclusion of the presentation of
Shade's evidence, Great Lakes moved under Fed. R. Civ. P.
50 for a judgment as a matter of law on the ground that the
evidence did not establish that Shade was a seaman at the
time of his injury. See app. at 41, 589. However, the district
court deferred ruling on that motion. See id. at 589. Great
Lakes renewed its Rule 50 motion at the conclusion of all

5
of the evidence, see id. at 45, 844; and again, the district
court deferred its ruling. See id. at 844.

The district court submitted a series of special
interrogatories to the jury; and on October 21, 1997, the
jury found that Shade was a seaman, and returned a
verdict in his favor in the amount of $870,000. See id. at
946-47. Pursuant to this verdict, the district court entered
judgment against Great Lakes on October 22, 1997. See id.
at 7. Great Lakes subsequently filed a renewed motion to
alter or amend the judgment pursuant to Fed. R. Civ. P.
50(b), or, in the alternative, for a new trial under Fed. R.
Civ. P. 59. See app. at 7. However, the district court denied
this motion on November 19, 1997, and Great Lakesfiled
its timely notice of appeal on December 18, 1997. See id. at
7, 9.

III. DISCUSSION

A. Jones Act Seaman Status

The Jones Act provides that "[a]ny 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. S 688(a). However,
the Jones Act does not define the critical term"seaman"
and thus "leaves to the courts the determination of exactly
which maritime workers are entitled to admiralty's special
protection." Chandris, Inc. v. Latsis, 515 U.S. 347, 355, 115
S.Ct. 2172, 2183 (1995). In a recent series of opinions, the
Supreme Court has clarified this definition and has
provided guidance as to how courts are to interpret this key
term. See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548,
117 S.Ct. 1535 (1997); Chandris, 515 U.S. 347, 115 S.Ct.
2172; Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112
S.Ct. 486 (1991); McDermott Int'l, Inc. v. Wilander, 498 U.S.
337, 111 S.Ct. 807 (1991).

In developing a test for seaman status, the Court noted
that prior cases recognized "a fundamental distinction
between land-based and sea-based maritime employees."
Chandris, 515 U.S. at 359, 115 S.Ct. at 2185. In
enunciating this difference, the Court has focused"on the

6
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. at 359-60, 115 S.Ct.
at 2185, and not on the situs of injury, because"land-
based maritime workers do not become seamen because
they happen to be working on board a vessel when they are
injured, and seamen do not lose Jones Act protection when
the course of their service to a vessel takes them ashore."
Id. at 361, 115 S.Ct. at 2186; see also Wilander, 498 U.S.
at 355, 111 S.Ct. at 817 ("The key to seaman status . . . is
employment-related connection to a vessel in navigation.").
The rule as developed by the Supreme Court furthers the
important goal of ensuring that a worker does "not oscillate
back and forth between Jones Act coverage and other
remedies depending on the activity in which the worker was
engaged while injured." Chandris, 515 U.S. at 363, 115
S.Ct. at 2187.

From these basic principles, the Court in Chandris set
forth a two-part test to determine if an individual is entitled
to Jones Act protection as a seaman:

First, as we emphasized in Wilander, `an employee's
duties must "contribut[e] to the function of the vessel
or to the accomplishment of its mission.' " The Jones
Act's protections, like the other admiralty protections
for seamen, only extend to those maritime employees
who do the ship's work. . . .

Second, . . . a seaman must have a connection to a
vessel in navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its
duration and nature.

Id. at 368, 115 S.Ct. at 2190 (citations omitted). The Court
also noted that although "seaman status is not merely a
temporal concept, . . . it necessarily includes a temporal
element." Id. at 371, 115 S.Ct. at 2191. In fact, both
portions of the Chandris test contain such an element,
because a court must determine how broad a time period to
consider when evaluating both an employee's duties and
his or her connection to a vessel in navigation. 1
_________________________________________________________________

1. In addition, the second portion of the test contains a direct
measurement of time through its durational element.

7
In its appeal, Great Lakes focuses on this temporal
concept. Specifically, Great Lakes argues that in evaluating
an employee's duties under the initial prong of the seaman
status test, the fact-finder must consider only the activities
of an employee at the time of his or her injury. Great Lakes
maintains that under this interpretation it is entitled to a
judgment as a matter of law, because it contends that
Shade was not acting as a seaman at the time of his injury.
Alternatively, with respect to the latter portion of the
seaman status test, Great Lakes asserts that only evidence
regarding the employee's present assignment with his or
her current employer is relevant and admissible to
establish a substantial connection to a vessel in navigation.
Thus, Great Lakes argues that if it does not receive a
judgment as a matter of law, it is entitled to a new trial
because the district court permitted Shade to introduce
evidence regarding his prior employment history.

After considering these arguments, we hold that Great
Lakes is not entitled to a judgment as a matter of law with
respect to Shade's seaman status, because Shade
presented sufficient evidence to create an issue of fact for
the jury to consider. However, we will reverse the judgment
entered against Great Lakes, and remand this case to the
district court for a new trial, because the district court
abused its discretion to admit evidence regarding Shade's
prior employment history.2

B. Duties Of The Employee

Under the first portion of the Chandris seaman status
test, an employee must demonstrate that his or her duties
" `contribute to the function of the vessel or to the
accomplishment of its mission.' " 515 U.S. at 368, 115 S.Ct.
at 2190 (citation omitted). In satisfying this requirement,
the seaman does not have to aid the vessel in navigation,
_________________________________________________________________

2. Great Lakes also raised a number of other issues in its appeal, such
as the failure to hold a charge conference, the alleged inadequacy of the
district court's jury charge, and the lack of a set-off against the
judgment for the amounts Shade received under the LHWCA; however,
we will not reach these issues on this appeal as their resolution could
not affect our result.

8
see Wilander, 498 U.S. at 353, 111 S.Ct. at 816; rather, the
employee must merely "perform the work of the vessel." Id.
at 355, 111 S.Ct. at 817.3 While this part of the Chandris
test does not contain any express time component, such an
element is implied, because a court must determine how
broad a time period to consider when evaluating an
employee's duties. Great Lakes argues for a narrow time
limitation, stating that a court is to determine the seaman
status of an employee solely based on "the activity in which
he was engaged at the time of injury." Desper v. Starved
Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218
(1952); see also Heise v. Fishing Co., 79 F.3d 903, 906-07
(9th Cir. 1996) ("The fact that if Heise performed well he
might be hired to work on the ship when it left Seward if
there were jobs available does not change his land-based
status at the time the injury occurred." (emphasis added)).
Applying this standard to the facts in this case, Great
Lakes contends that it is entitled to a judgment as a matter
of law, because Shade was ashore assisting in the refueling
of a welding machine when he was injured.

The question of seaman status is often "fact specific," and
"[i]f 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." Wilander, 498 U.S. at
356, 111 S.Ct. at 818. However, "a directed verdict is
mandated where the facts and the law will reasonably
support only one conclusion." Id. This court utilizes a
plenary standard to review a grant or denial of a judgment
as a matter of law. See Salas v. Wang, 846 F.2d 897, 902
(3d Cir. 1988). A court should grant such a motion only "if,
_________________________________________________________________

3. The Court in Wilander definitively resolved the "inconsistent use of an
aid in navigation requirement" that arose between 1927 and 1946,
"during which [time] the Court did not recognize the mutual exclusivity
of the [LHWCA] and the Jones Act." Id. at 348, 111 S.Ct. at 814. The
Court explained that "the better rule" was to define seaman status
"solely in terms of the employee's connection to a vessel in navigation."
Id. at 354, 111 S.Ct. at 817. This rule would ensure that the Jones Act
would fulfill the purpose of protecting "[a]ll who work at sea in the
service of a ship [and who] face those particular perils to which the
protection of maritime law, statutory as well as decisional, is directed."
Id.

9
viewing the evidence in the light most favorable to the
nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from
which a jury reasonably could find liability." Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).

Although the contours of the seaman status test remain
difficult to apply, the Supreme Court has provided a
number of relevant principles to guide our determination of
this issue. First, the Court has emphasized that its status-
based approach to the definition of the term seaman
"determines Jones Act coverage without regard to the
precise activity in which the worker is engaged at the time
of the injury." Chandris, 515 U.S. at 358, 115 S.Ct. at
2185; see also id. at 363, 115 S.Ct. at 2187 ("[C]ourts
should not employ `a `snapshot' test for seaman status,
inspecting only the situation as it exists at the instant of
injury; a more enduring relationship is contemplated in the
jurisprudence.' " (quoting Easley v. Southern Shipbuilding
Corp., 965 F.2d 1, 5 (5th Cir. 1992))). By not focusing
exclusively on the activity of the employee at the time of
injury, courts prevent a worker from oscillating"between
Jones Act coverage and other remedies depending on the
activity in which the worker was engaged while injured." Id.
at 363, 115 S.Ct. at 2187.

For instance, in Thibodeaux v. Torch, Inc., 858 F.2d 1048,
1049 (5th Cir. 1988), the plaintiff sued under the Jones Act
for injuries he sustained while working ashore. The
employer argued that it was entitled to summary judgment,
because the plaintiff 's specific activities at the moment of
his accident were not the work of a seaman, but rather
were "traditional" duties of a longshoreman. Id. at 1050.
The Court of Appeals for the Fifth Circuit rejected the
employer's position and held that the specific activity at the
time of injury was "only one factor" in the analysis of the
employee's Jones Act seaman status. Id. at 1051; see also
Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415
(5th Cir. 1986); Savoie v. Otto Candies, Inc. , 692 F.2d 363,
365 (5th Cir. 1982); Guidry v. South La. Contractors, Inc.,
614 F.2d 447, 453 (1980); Higginbotham v. Mobil Oil Corp.,
545 F.2d 422 (5th Cir. 1977), rev'd on other grounds, 436
U.S. 618, 98 S.Ct. 2010 (1978). Thus, contrary to Great

10
Lakes' position, the employee's specific activity at the time
of his or her injury is not dispositive of the issue of seaman
status.

Second, although an examination based solely on the
specific activity at the time of injury is too narrow, the
Supreme Court also has cautioned against too broad of a
perspective in examining an employee's duties. In
evaluating the duties of an employee under the seaman
status test, courts should not consider an employee's entire
work history, but must consider only the nature of the
employee's basic job assignment as it existed at the time of
injury. After all, as the Court has stated, "[w]hen a
maritime worker's basic assignment changes, his seaman
status may change as well." Chandris, 515 U.S. at 372, 115
S.Ct. at 2191. To illustrate this holding, the Court
explained:

For example, we can imagine situations in which
someone who had worked for years in an employer's
shoreside headquarters is then reassigned to a ship in
a classic seaman's job that involves a regular and
continuous, rather than intermittent, commitment of
the worker's labor to the function of a vessel. Such a
person should not be denied seaman status if injured
shortly after the reassignment, just as someone
actually transferred to a desk job in the company's
office and injured in the hallway should not be entitled
to claim seaman status on the basis of prior service at
sea.

Id. at 372, 115 S.Ct. at 2191. Thus, while a court must not
concentrate exclusively on the employee's specific activity at
the time of injury, a court should limit its examination of
the employee's duties to the employee's basic job
assignment as it existed at the time of injury.

Applying these principles to the present appeal, we
cannot say that Great Lakes is entitled to a judgment as a
matter of law. Although Shade was on shore assisting in
the refueling of a welding machine when he was injured,
this activity cannot be the sole determining factor to resolve
whether Shade was a seaman. Instead, we must view
Shade's status in the larger context of his employment-

11
related duties. In deciding which duties to consider, a
reasonable juror could conclude that Shade's entire
performance at the Cape May job consisted of a single
assignment, because his duties remained fairly constant
during the pendency of that dredging operation. Under this
broader analysis, Shade presented sufficient evidence such
that a reasonable jury could determine that his duties
during the Cape May job contributed to the function of a
vessel or to the accomplishment of its mission. While
working at Cape May, Shade spent a considerable amount
of his time at the beginning of his employment working on
the water with the anchor barge 110 to repair the
submersible line. See app. at 473-75, 690-92. Beyond this
initial placement, Shade presented evidence at trial that he
spent significant time on the water as a deckhand on a
vessel in navigation performing his job responsibilities. See
id. at 311-14, 316-17, 473-84. Additionally, even Shade's
duties on the beach were not unrelated to the work of a
vessel in navigation; instead, they contributed to the
purpose of the dredging operation. Viewing this evidence in
a light most favorable to Shade, a reasonable juror could
find that Shade's job responsibilities at Cape May consisted
of a single job assignment and contributed to the function
of a vessel in navigation, thereby satisfying thefirst
requirement of the Chandris test. Thus, because Shade
presented sufficient evidence for a reasonable juror to find
in his favor, the district court correctly denied Great Lakes'
motion for a judgment as a matter of law.4

C. Connection To A Vessel

Under the second part of the Chandris seaman status
test, an employee must demonstrate that he or she has "a
connection to a vessel in navigation (or to an identifiable
group of such vessels) that is substantial in terms of both
its duration and nature." 515 U.S. at 368, 115 S.Ct. at
_________________________________________________________________

4. We note that in making this determination, we do not consider the
evidence of Shade's prior employment history with Great Lakes, because
as we hold below, such evidence is inadmissible, and thus cannot be
considered by a court in deciding a motion for a judgment as a matter
of law. See Lightning Lube, 4 F.3d at 1198-1200.

12
2190. Typically, this requirement is fulfilled by examining
the employee's connection with the vessel to which he or
she was assigned at the time of his or her injury. However,
in certain circumstances, this connection might not be
sufficient to meet the substantiality requirement of the
seaman status test, even though the employee performs
traditional seaman activities on a regular and continuous
basis. For example, the employee's job responsibilities
might require performance on a number of different vessels,
rather than permitting a permanent connection to one
vessel. Confronted with this problem, courts have enabled
employees to fulfill the seaman status test by
demonstrating that they are assigned to a fleet of vessels,
rather than to only one vessel, under a doctrine known as
the "Fleet Seaman Doctrine." See, e.g., Reeves v. Mobile
Dredging & Pumping Co., 26 F.3d 1247, 1253-55 (3d Cir.
1994) (describing the development of the doctrine). In fact,
the Chandris test contemplates this doctrine, because it
expressly permits an employee to demonstrate a connection
not only "to a vessel in navigation," but also"to an
identifiable group of such vessels." 515 U.S. at 368, 115
S.Ct. at 2190. By permitting this aggregation, the Fleet
Seaman Doctrine thus ensures that a seaman receives
Jones Act coverage even though he or she is not assigned
permanently to a specific vessel, but instead regularly
performs seaman's work on different vessels. See Gizoni v.
Southwest Marine Inc., 56 F.3d 1138, 1141 (9th Cir. 1995)
("Under the fleet seaman doctrine, one can acquire `seaman'
status through permanent assignment to a group of vessels
under common ownership or control.").

For instance, in Braniff v. Jackson Ave.-Gretna Ferry, Inc.,
280 F.2d 523, 528 (5th Cir. 1960), John Braniff worked as
the "Superintendent in charge of all maintenance, repair
and overhaul work" for his employer. Id. at 525. In
performing this job, he would travel from vessel to vessel,
but would be stationed only temporarily at each vessel.
Braniff subsequently drowned while repairing a machine on
one of his employer's ferries. See id. Based on his limited
contact with the ferry, Braniff could not establish a
substantial connection to a single vessel in navigation even
though his job required him to perform seaman's duties on
a regular and ongoing basis. In holding that Braniff could

13
be a seaman under the Jones Act, the Court of Appeals for
the Fifth Circuit permitted an aggregation of Braniff 's
connections to the other vessels in the fleet beyond the
single ferry he worked on immediately prior to his death,
because he was " `assigned permanently' " to those vessels
and performed " `a substantial part of his work on the'
several specified `vessel(s).' " Id. at 528 (citing Offshore Co.
v. Robison, 266 F.2d 769, 779 (5th Cir. 1959)).

We first considered the Fleet Seaman Doctrine in Reeves,
26 F.3d at 1256; and after determining that "the doctrine
comports well with and flows logically from Supreme Court
precedent," we adopted the doctrine as "the rule of law in
this circuit in analyzing Jones Act cases." Id. We held that
"[t]he Fleet Seaman Doctrine in our view applies to an
employee, one who is predominantly assigned by his
employer to a navigable vessel, but who occasionally is
assigned by that same employer to non-navigable vessels. It
would also apply to one who is assigned to a number of
navigable vessels and spends some time on shore, as in
Braniff." Id. Thus, we adopted the doctrine to afford Jones
Act protection to these types of employees, because
"stripping seaman status from such an employee, or
allowing that same employee to oscillate between seaman
and non-seaman status . . . would be a travesty of justice."
Id.

In the present case, Shade had worked as a deckhand
since 1974. See app. at 468. From September 1992 until
February 1994, Great Lakes employed Shade as a
deckhand. See id. at 54-55, 509-10. However, beginning in
March 1994, Shade worked for Bean-Weeks. See id. at 55,
510. Great Lakes did not re-employ Shade until December
1994 for the Cape May job. See id. at 472. During trial,
Shade sought to introduce evidence regarding his
employment history under the Fleet Seaman Doctrine in
order to satisfy the substantiality requirement of the
Chandris seaman status test. Over the objection of Great
Lakes, the district court permitted Shade to offer two types
of prior employment evidence. First, Shade introduced a
general account of his work history, with Shade testifying
that he had been working on the water since 1974, see id.
at 468, and had been a deckhand "all my life," id. at 479,

14
and with three other witnesses testifying that Shade had
been a deckhand throughout his career. See id. at 617
(testimony of Thomas E. Chandler), 660-61 (testimony of
Joyner), 809 (testimony of Jackson). Second, the district
court admitted specific evidence regarding Shade's work
history as a deckhand for Great Lakes from September
1992 until February 1994. See id. at 54-55, 468-69, 842.

In its appeal, Great Lakes maintains that it is entitled to
a new trial because this prior employment evidence was not
relevant to the determination of Shade's seaman status and
thus should not have been admitted under Fed. R. Civ. P.
402.5 We exercise an abuse of discretion standard to review
"a denial of a request for a new trial based on the district
court's alleged error in ruling on the admissibility of
evidence." Affiliated Mfrs., Inc. v. Aluminum Co. of America,
56 F.3d 521, 525 (3d Cir. 1995) (citing Lippay v. Christos,
996 F.2d 1490, 1496 (3d Cir. 1993)). However, where"the
district court's decision rests on the application of legal
precepts, we exercise plenary review." Failla v. City of
Passaic, 146 F.3d 149, 153 (3d Cir. 1998). We will grant
Great Lakes a new trial, because we hold that the district
court abused its discretion in admitting evidence regarding
Shade's prior work history.6

Even though the Fleet Seaman Doctrine permits an
employee to aggregate contacts with multiple vessels, it is
clear that these contacts must have occurred with vessels
owned or controlled by the same employer. As the Supreme
Court has stated, "[c]onsidering prior employments with
independent employers in making the seaman status
inquiry would undermine `the interests of employers and
maritime workers alike in being able to predict who will be
covered by the Jones Act . . . before a particular work day
_________________________________________________________________

5. Rule 402 provides: "All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by Act of
Congress, by these rules, or by other rules prescribed by the Supreme
Court, pursuant to statutory authority. Evidence which is not relevant is
not admissible."

6. Arguably we should exercise plenary review on the evidence issue. Of
course, if we did, we would reach the same result. Thus, we do not
prejudice Shade by using an abuse of discretion standard.

15
begins.' " Harbor Tug, 117 S.Ct. at 1541 (quoting Chandris,
515 U.S. at 363, 115 S.Ct. at 2187). The Court held that
without such a rule "[t]here would be no principled basis
for limiting which prior employments are considered for
determining seaman status." Id.; see also Reeves, 26 F.3d
at 1257 (rejecting an attempt to introduce evidence of a
prior employment with another employer under the Fleet
Seaman Doctrine because the prior employment "was
simply unrelated" to his present job).

When introducing evidence concerning his general work
history, Shade and the other witnesses did not state with
any specificity who employed him during his work career.
However, undoubtedly at least a portion of this evidence
concerned employment with employers other than Great
Lakes. For instance, Shade testified that he worked for
Bean-Weeks during a portion of 1994; and Shade provided
evidence that out of his twenty year career, he worked for
Great Lakes during the Cape May job and between
September 1992 and February 1994. From this evidence, it
is reasonable to conclude that this general work history
evidence involved other employers beyond Great Lakes.
Thus, because the evidence of Shade's general work history
apparently referred to employment with independent
employers, this testimony clearly was irrelevant to the
determination of Shade's seaman status, and the district
court abused its discretion to have permitted the jury to
consider it.7

The admission of evidence concerning Shade's specific
work history with Great Lakes poses a more difficult
question. Typically, an employee introducing evidence of
connections to other vessels in an employer's fleet under
the Fleet Seaman Doctrine has worked for the same
employer on a continual, uninterrupted basis. See, e.g.,
Braniff, 280 F.2d at 525-26. Shade's connections to other
vessels in Great Lakes' fleet, however, did not concern a
single employment period. Instead, Shade presented
_________________________________________________________________

7. Even if Shade's employment prior to 1992 had been with Great Lakes
our result would be the same, because as we hold below, such
employment evidence is not admissible if the employment relationship
was not continuous.

16
evidence of two distinct employment periods with Great
Lakes in order to establish a substantial connection to a
vessel in navigation: his final employment with Great Lakes
from December 9, 1994, until December 30, 1994, and his
previous employment with the company from September
1992 until February 1994. Between these two employment
periods, Shade did not work for Great Lakes, and he had no
connection to Great Lakes or the vessels in itsfleet. Rather,
Bean-Weeks employed him. Thus, in this unusual
situation, we must determine whether the Fleet Seaman
Doctrine permits Shade to aggregate his prior assignments
with Great Lakes and his work for the company at the Cape
May job to establish a substantial connection to a vessel in
navigation, even though he was not employed continuously
by Great Lakes.

The Supreme Court's consideration of the substantiality
prong of the Chandris seaman status test in Harbor Tug,
520 U.S. 548, 117 S.Ct. 1535, provides some guidance to
resolve this issue. In that case, John Papai, an employee of
Harbor Tug & Barge Company, was injured while painting
a tugboat. See Harbor Tug, 117 S.Ct. at 1538. During the
2-1/4 years prior to his injury, Papai received various
assignments with a number of different employers,
including Harbor Tug, through a central union hiring hall.
See id. at 1538. In fact, during the 2-1/2 months prior to
his injury, Harbor Tug had employed Papai on 12 separate
occasions. See id. at 1542. In attempt to establish a
substantial connection to a vessel in navigation, Papai
sought to introduce evidence of his prior employments with
Harbor Tug and with other employers. See id. at 1540. After
rejecting the evidence relating to other employers, the Court
examined Papai's specific employments with Harbor Tug.
See id. at 1542. Given the fact that Papai described a
number of these jobs as non-deckhand work, the Court
held that "it would not be reasonable to infer" that the rest
of his employments with Harbor Tug were of a seagoing
nature. Id. Thus, the contacts would not seem to assist
Papai in establishing seaman status. More importantly, the
Court stated "[i]n any event, these discrete engagements
were separate from the one in question, which was the sort
of `transitory or sporadic' connection to a vessel or group of
vessels that . . . does not qualify one for seaman status." Id.

17
(citation omitted). Thus, the Court held that these prior
assignments could not be used to establish seaman status
because they were separate from Papai's present
employment.

The Court of Appeals for the Fifth Circuit has addressed
this question more directly in Patton-Tully Transp. Co. v.
Ratliff, 797 F.2d 206 (5th Cir. 1986). In that case, Tommy
Lee Ratliff worked for Patton-Tully Transportation Company
from 1979 until he quit in May 1980; but he returned to
the company in September 1980 and worked there until his
death in March 1981. See id. at 208. Subsequently, his
mother filed a claim under the Jones Act against the
company, seeking to recover damages for the death of her
son. See id. at 209. In evaluating Ratliff 's seaman status,
the court confronted the question of whether it should
consider both periods of Ratliff 's employment with Patton-
Tully, or whether it only should consider Ratliff 's final
period of employment with the company. The court held
that it should focus solely on Ratliff 's final period of
employment, because "the four-month hiatus in Ratliff 's
employment was a significant break requiring separate
evaluation of his duties during the re-employment period."
Id. at 210. Thus, the court upheld the exclusion of evidence
of a prior employment with the same employer, because the
employee had not worked for the employer on a continuous
basis. See also Reeves, 26 F.3d at 1256 ("The key to the
Fleet Seaman Doctrine is that the seaman maintain the
employment relationship with the same employer.").

Excluding such evidence is consistent with the Fleet
Seaman Doctrine. Although the doctrine developed as a
means to protect employees from losing seaman status
"when on temporary non-navigable assignments or when
assignments preclude attachment to one," Reeves, 26 F.3d
at 1256, the doctrine specifically excludes individuals who
perform seaman's work on multiple vessels, but do so as
part of their employment with multiple employers. See
Harbor Tug, 117 S.Ct. at 1541. The distinction developed in
part because each new assignment with a different
employer is distinct from the employee's prior jobs with
other employers, and "[n]o principled basis" existed to limit
"which prior employments are considered for determining

18
seaman status." Id. This distinction served the purpose of
permitting "employers and maritime workers alike" to
predict the Jones Act status of an employee based on the
job for which the employer hired the individual, rather than
based on the prior experiences of the employee with an
independent employer. Id.

Applying this rationale to a situation where an
employment relationship is terminated and subsequently
the employer rehires the employee, the employee's posture
is more akin to those excluded by the doctrine rather than
those afforded protection under it. After the termination of
the employment relationship, the employee severs any
duties that the employee had towards the employer with
respect to the performance of the former job. The employee
does not have any ongoing or regular responsibilities
relating to the vessels in the former employer'sfleet. Upon
being rehired, the employee does not recapture that prior
relationship. Instead, the employee adopts a prospective set
of duties and responsibilities that may be distinct from the
employee's former performance, and the connections the
employee once had to any vessels in the employer'sfleet are
thus separate from the employee's new status. In effect, the
employment in the new position could be considered to be
for an entirely different employer, and as such, evidence of
the prior employment would have no relevance to the
employee's later position with the employer. Thus, we hold
that evidence of an employee's prior assignment with the
same employer is not admissible under the Fleet Seaman
Doctrine if those assignments were not part of a continuous
employment relationship between the employer and
employee.8

Shade severed all ties with Great Lakes and with his
prior assignments with the company by working for Bean-
Weeks. When Shade returned to Great Lakes after
_________________________________________________________________

8. Conceivably there could be such a short interruption in an otherwise
continuous employment relationship that it might be reasonable to
regard the employment as practically continuous and thus to apply the
Fleet Seaman Doctrine. Here, however, the interruption was not so short,
and Shade worked for Bean-Weeks in the interim. These facts preclude
a finding that Great Lakes' employment of Shade was practically
continuous.

19
approximately ten months, his final employment only
concerned the Cape May job and his duties during that
dredging operation. He had no regular responsibilities that
required him to move from vessel to vessel in Great Lakes'
fleet; instead, he was hired for a distinct job and only could
establish a connection to vessels being used at the Cape
May dredging operation. Thus, because he did not maintain
a continuous employment relationship with the company,
the evidence of Shade's prior employment with Great Lakes
was completely irrelevant to the determination of his
seaman status, and the district court abused its discretion
to have admitted this prior employment history into
evidence.

Because the district court abused its discretion to admit
Shade's prior employment history into evidence,"we must
reverse unless we find that its admission was harmless
error." Lippay, 996 F.2d at 1500. An error is harmless if "it
is highly probable that the error did not substantially
affect" the judgment. Id. The issue of seaman status was
one of the central issues at trial and was the subject of a
great deal of disputed evidence. The admission of Shade's
prior work history was significant, because it permitted
Shade to argue to the jury that he should be considered a
seaman based on the status he held during his prior
employment assignments and regardless of his actual
status at Cape May. During closing arguments, Shade's
counsel stated:

[T]he Supreme Court has said that in evaluating the
status of an individual, you do not look at what he was
doing on the day of the injury, or even at the time of
the injury. You look at Mr. Shade's history with this
company Great Lakes.

And if you do that, you will know that Mr. Shade has
always been a seaman for Great Lakes . . . .

And you also know that while he was on the beach
[at Cape May] he was called out to perform functions
on the sea. That is not necessary for you to find. You
can find that he wasn't, and still determine he was a
seaman, because, as the records will show, he has
worked for Great Lakes for over four years, every time
as a seaman, as a deck hand.

20
App. at 849. Because of the centrality of the issue and the
extremely prejudicial use of this evidence, we cannot say
that it is highly probable that the error did not affect the
verdict.9 Therefore, we will reverse the judgment and
remand this matter for a new trial in a matter consistent
with this opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

9. We do not preclude admission of evidence of the character leading to
the reversal here if the evidence is admitted for a purpose other than to
establish an employee's seaman status. Of course, in the event that such
evidence is admitted, the district court should give an appropriate
instruction as to its use.

21