Johnson v. ADM/Gromark Rifer Systems

                               NO. 5-97-0236

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THOMAS E. JOHNSON,                  )  Appeal from the
                                    )  Circuit Court of
     Plaintiff-Appellant,           )  Pulaski County.
                                    )
v.                                  )  No. 96-L-12
                                    )
ADM/GROWMARK RIVER SYSTEMS, INC.,   )  Honorable
                                    )  George M. Oros,
     Defendant-Appellee.            )  Judge, presiding.
_________________________________________________________________

     PRESIDING JUSTICE WELCH delivered the opinion of the court:
     In this case brought under the Jones Act (46 U.S.C.A. 688
(West Supp. 1997)), we are asked to determine whether the circuit
court of Pulaski County properly entered summary judgment in favor
of the defendant, ADM/Growmark River Systems, Inc., and against
plaintiff, Thomas E. Johnson, finding as a matter of law that
plaintiff was not a "seaman" within the meaning of the Jones Act
because he had no connection to a "vessel in navigation".  
     The Jones Act provides a cause of action in negligence to any
"seaman" who suffers personal injury in the course of his
employment.  Chandris, Inc. v. Latsis, 515 U.S. 347, 132 L. Ed. 2d 314, 328, 115 S. Ct. 2172 (1995).  The Jones Act, however, does not
define the term seaman, and the question often arises whether a
maritime employee is a "seaman", who is entitled to recovery under
the generous provisions of the Jones Act, or a land-based maritime
worker, who is entitled to recovery only under the Longshore and
Harbor Worker's Compensation Act (LHWCA) (33 U.S.C.A. 901 et seq.
(West 1986)).  The LHWCA provides scheduled compensation, and the
exclusive remedy, for injury to a broad range of land-based
maritime workers.  Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 329,
115 S. Ct. 2172.  
     Drawing the distinction between those maritime workers who
should qualify as seamen under the more generous provision of the
Jones Act and those who should not has been the source of much
litigation (Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 329, 115 S.
Ct. 2172), and it is the source of the litigation before us in this
appeal.  What is clear, however, is that under the Jones Act the
term seaman does not include land-based workers.  Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 331, 115 S. Ct. 2172.  
          "With the passage of the LHWCA, Congress established a
     clear distinction between land-based and sea-based maritime
     workers.  The latter, who owe their allegiance to a vessel and
     not solely to a land-based employer, are seamen."  McDermott
     International v. Wilander, 498 U.S. 337, 347, 112 L. Ed. 2d 866, 877, 111 S. Ct. 807 (1991).
     While the Jones Act itself does not define who constitutes a
seaman for its purposes, the courts have attempted to give some
guidance.  In Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 337, 115 S. Ct. 2172, the Supreme Court found two essential requirements for
seaman status:  (1) the employee's duties must contribute to the
function of the vessel or to the accomplishment of its mission and
(2) a seaman must have a connection to a vessel in navigation that
is substantial in terms of both its duration and its nature.  It is
the second element which the circuit court of Pulaski County found
lacking in the case at bar.  Because that court found as a matter
of law that plaintiff was not employed on a "vessel in navigation"
and therefore was not a seaman, it granted summary judgment in
favor of defendant.
     The question whether an employee is a seaman within the
meaning of the Jones Act is a mixed question of law and fact. 
Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 338, 115 S. Ct. 2172. 
When the underlying facts are established and the rule of law is
undisputed, the issue is whether the facts meet the statutory
standard.  McDermott International v. Wilander, 498 U.S. 337, 356,
112 L. Ed. 2d 866, 883, 111 S. Ct. 807 (1991).  Because the
statutory terms are at issue, their interpretation is a question of
law and it is the court's duty to define the appropriate standard. 
Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 338, 115 S. Ct. 2172. 
Then, if reasonable persons, applying the proper legal standard as
defined by the court, could differ as to whether an employee was a
seaman, it is a question of fact for the jury.  Chandris, 515 U.S. 347, 132 L. Ed. 2d  at 338, 115 S. Ct. 2172.  The underlying inquiry
whether a vessel is or is not "in navigation" for Jones Act
purposes is a fact-intensive question that is normally for the jury
to decide, not the court.  Chandris, 515 U.S. 347, 132 L. Ed. 2d  at
340, 115 S. Ct. 2172.  Removing the issue from the jury's
consideration is only appropriate where the facts and the law will
reasonably support only one conclusion.  Chandris, 515 U.S. 347,
132 L. Ed. 2d  at 340, 115 S. Ct. 2172.  Nonetheless, summary
judgment is mandated where the facts and the law will reasonably
support only one conclusion.  Wilander, 498 U.S.  at 356, 112 L. Ed. 2d  at 883, 111 S. Ct. 807; Harbor Tug & Barge Co. v. Papai, ___
U.S. ___, 137 L. Ed. 2d 800, 117 S. Ct. 1535 (1997).  
     Thus, while the question of whether a person is a seaman is
normally a question of fact for the jury, the issue may be resolved
by summary judgment where the undisputed material facts establish
as a matter of law that an individual is not a Jones Act seaman. 
Snelling v. Elmer Logsdon River Construction Co., 120 Ill. App. 3d
80, 83 (1983).  Of course, we review the decision of the trial
court de novo.  Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90, 102 (1992).  
     The material facts presented to the trial court are
undisputed.  Defendant operated a facility on the Ohio River.  The
facility handled grain pellets and other grain products.  Products
came into defendant's facility by railcar and truck.  They were
then carried by conveyor belt out to defendant's dock on the river,
where they were loaded into barges belonging to numerous different
companies.  
     Defendant's dock consisted of two floating barges that were
moored between three round, cylindrical "cells" driven into the
river bottom.  These barges had been originally constructed to
transport cargo over water and had previously been used for that
purpose.  They had been retired from service because they were old
and were no longer capable of carrying cargo.  The hulls of the
barges were old and worn, and the cost to restore them to a
condition suitable to carry cargo would have exceeded the value of
the barges.  
     The barges floated between the cells so that they could ride
up and down with the rise and fall of the river.  However, steel
framework welded to the ends of the barges and attached to the
cells prevented them from moving upstream, downstream, or from
side-to-side, and they could not float away from the loading area. 
The barges provided a flat surface for the various customer's
barges to be tied to for loading, and they made it safer for
defendant's employees to get on and off the customer barges from
the dock at various stages of the river.
     In addition to the steel framework welded to the ends of the
barges to hold them in place, defendant had made numerous
modifications to the barges.  The doors on top of the cargo
compartments, into which cargo would normally have been loaded, had
been welded shut so that no one could fall inside and be injured. 
A yellow steel catwalk had been constructed between the two barges
so that defendant's employees could walk from one barge to the
other.  A cable pulley system was welded to the deck of the barges
so the tower operator could adjust the position of customer barges
during loading.  A trailer had been mounted on top of one of the
barges to store tools.  If defendant had wanted to restore the
barges for use to carry cargo, it would have been necessary to
remove all of these modifications.  
     Defendant had never used the barges to carry cargo.  On only
two occasions had the barges ever been moved.  At one time, the
river had flooded and caused the barges to float up near the top of
the mooring cells, which would have allowed the barges to drift
away.  Therefore, the barges had been temporarily moved away.  On
a second occasion, defendant had one of the barges removed from its
mooring for repairs.  Neither barge was used to carry any cargo on
either of these occasions.  The beams securing the barges into
place on the mooring cells had once been welded to the ends of the
barges, but after having to remove the barges from the cells, they
were modified so that they were held on with removable pins to
facilitate easy transportation.
     The barges were not essential to the process of loading grain
into customer barges, as defendant had continued loading operations
at the time when one of the barges had been removed.  The barges
simply provided a platform on which the workers could safely stand
while working on the customer barges.
     Defendant's facility was operated by a total of about 21
employees.  The facility operated seven days per week on three
shifts.  Each shift had a tower operator (who ran the conveyor
controls), a lead man, and two laborers.  The time to load each
customer's barge varied from three hours to as much as eight hours. 
Roughly 80% of the customers' barges were loaded with pellets; the
rest were loaded with grain.
     When pellets were to be loaded, one or both of the laborers
would go down to the dock to open covers on the customer's barge
and prepare it for loading.  This took roughly 15 to 30 minutes. 
The laborers would then go to a building on land called the pit,
where they would unload rail cars of pellets that were carried on
the conveyor out to the dock.  Once the tower operator called to
say the customer's barge was full, the two laborers would return to
the dock to close the covers on the barge and clean up any spills. 
This took approximately 30 minutes.  
     When grains were being loaded, the procedure was the same
except that one of the laborers would go down to the dock to record
the draft marks on the four corners of the customer's barge.  This
might take only a few minutes, or it might require one of the
laborers to remain at the dock during the entire loading process.
     Different customer barges came to the dock every day for
loading.  Defendant had no tug of its own, and all customer barges
were brought to the dock by a tug service.  Plaintiff never rode on
this tug in the course of his employment, nor did plaintiff ever
ride on any other kind of boat in the course of his employment.
     The plaintiff was employed as a laborer by defendant from July
1990 until his injury on December 4, 1990.  Plaintiff's foot was
injured when a customer's barge cover fell on it.  The plaintiff
testified in his deposition that he spent about 90% of his work
time on the barges.  Some of plaintiff's coworkers testified in
their depositions that plaintiff spent about 80% to 90% of his work
time on land unloading rail cars, operating the locomotive, and
performing other duties.  The circuit court found that this factual
dispute was immaterial and did not prevent the grant of summary
judgment because even if the plaintiff spent as much time on the
barges as he claimed, the barges were not vessels in navigation for
purposes of the Jones Act.
     In its motion for summary judgment, filed December 23, 1996,
defendant argued that plaintiff was not a seaman within the meaning
of the Jones Act because he did not have a substantial connection
to any vessel in navigation.  Defendant argued that the barges were
permanently moored, never travelled on the river, and were used
essentially as a stationary, floating dock.  Accordingly, defendant
argued, the barges were not "vessels in navigation" within the
meaning of the Jones Act.  Defendant argued that many of
plaintiff's duties were land-based and that when he worked over
water, his work was that of a classic longshoreman assigned to help
load various vessels.
     Plaintiff countered that a jury could reasonably find that the
barges are vessels in navigation.  Plaintiff argued that the barges
were clearly vessels and that they were in navigation because they
were floating on a navigable waterway.  Plaintiff argued that the
barges had at one time carried cargo, that they were still capable
of carrying cargo with some modification, and that they were only
temporarily moored.  Accordingly, plaintiff argued, a jury could
reasonably find that the barges were vessels in navigation and that
plaintiff was a seaman within the meaning of the Jones Act.
     The circuit court found as a matter of law that the barge on
which plaintiff was injured was not a vessel in navigation. 
Because the circuit court found that no reasonable jury could find
plaintiff to be a seaman within the meaning of the Jones Act, it
granted summary judgment for defendant.  For reasons which follow,
we affirm.
     Courts have long held that floating work platforms are legally
indistinguishable from floating dry docks and, at least while
secured to land, are not vessels for purposes of the Jones Act. 
Cook v.  Belden Concrete Products, Inc., 472 F.2d 999, 1000 (5th
Cir. 1973).  In Cook, the court pointed out that neither the
capability of movement on water nor the fact that the platform had
been moved through navigable waters in the past establishes that
the platform, while secured to land and in service, is a vessel. 
472 F.2d  at 1001.  As a matter of law a floating dry dock is not
a vessel when it is moored and in use as a dry dock.  472 F.2d  at
1001.  
     In Cook, the plaintiff was injured while working on
defendant's construction platform, consisting of a flat-deck barge
that was secured to defendant's dock by ropes.  The barge was used
for the construction of fabricated concrete barges and was
occasionally moved on the water for launching of the fabricated
concrete barge and to pick up materials on defendant's dock.  A
summary judgment in favor of the defendant was affirmed where the
work-platform barge was found as a matter of law not to be a vessel
in navigation within the meaning of the Jones Act.
     In Ducrepont v. Baton Rouge Marine Enterprises, Inc., 877 F.2d 393 (5th Cir. 1989), plaintiff was injured on a barge used as a
stationary work platform by defendant/employer, who was in the
business of cleaning and repairing barges for a variety of
companies.  The work barge had originally been designed as a cargo
barge but then was moored to shore by wires and was used as a work
platform.  It was occasionally tugged a short distance from shore
due to the water level.  The court affirmed a summary judgment in
favor of defendant on the ground that, as a matter of law, the
barge was not a vessel in navigation within the meaning of the
Jones Act.  Ducrepont, 877 F.2d  at 394.  The court stated, "We
have consistently held `that dry docks and analogous structures
whose primary purpose is to provide a work platform, even if the
structures are afloat, are not Jones Act vessels as a matter of
law.'"  877 F.2d  at 395.  The fact that the barge was not
originally constructed as a work platform but as a cargo-carrying
barge does not mandate that the barge is a vessel for Jones Act
purposes where it is used as a work platform and not to carry
cargo.  877 F.2d  at 395.  
     In Ellender v. Kiva Construction & Engineering, Inc., 909 F.2d 803 (5th Cir. 1990), plaintiff was injured while working on a
four-barge work platform.  The barges were tied together and were
moved around the construction site with a tug.  They were not
otherwise moved.  A summary judgment for defendant/employer was
affirmed because the barges were found as a matter of law not to
constitute a vessel within the meaning of the Jones Act.  
     These holdings are not confined to the fifth circuit.  In
DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119 (1st Cir.
1992), plaintiff was injured while working on a barge at a bridge
construction sight.  The barge was used to hold a crane.  It was
positioned about the bridge and was moved away from the piling at
night for safety.  The barge had been towed by a tug to the job
site.  The court distilled from various cases that mere floating is
not enough to make something a vessel, nor is capability of
movement across navigable waters.  DiGiovanni, 959 F.2d  at 1123. 
The court stated that the test is whether the structure is used
primarily for the transportation of cargo or persons across
navigable waters or was, at the time of injury, engaged in
navigation.  959 F.2d  at 1123.  The court pointed out that the
current use of a structure, and not its previous purpose, should be
the test of vessel status.  959 F.2d  at 1123.  The court concluded
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 only when it is in actual
navigation or transit.  959 F.2d  at 1123.  The court found that
the barge on which plaintiff was injured had not transported
anything for a month and was simply moved around the construction
site.  It was therefore not engaged in navigation or commerce and
was used primarily as a stationary work platform.  It was not a
vessel within the meaning of the Jones Act. 
     Although a myriad of cases discuss the issue of what
constitutes a vessel in navigation for Jones Act purposes, it
serves no useful purpose to discuss them all herein.  Suffice it to
say that plaintiff has cited no case in which a stationary work
platform which is never used to transport cargo or passengers over
navigable waters, such as in the case at bar, has been held to be
a Jones Act vessel.
     There is no question in the case at bar that the barge on
which plaintiff was injured had never, in anyone's memory, been
used by defendant or its predecessor in interest to transport
cargo, equipment, or passengers.  It is further undisputed that,
although the barge had originally been designed to transport cargo,
defendant had so modified it that it was no longer capable of doing
so.  Plaintiff argues that the barge was only temporarily moored
and therefore still constituted a vessel within the meaning of the
Jones Act.  To the contrary, we think the evidence leads only to
the conclusion that the barge was permanently moored, even if not
irrevocably moored.  There was no evidence of any intent on the
part of the defendant to remove the barge from its mooring or to
use it for any purpose other than a permanent, stationary work
platform.  As the cases cited above have held, the fact that the
barges had in the distant past been used to transport cargo is not
dispositive, as it is their current use which determines their
status.  In their current use, the barges are no more than
extensions of land.  
     Plaintiff argues that once a vessel is in navigation it does
not easily lose this status and that a vessel does not cease to be
a vessel when she is not voyaging.  However, the cases plaintiff
relies upon for these propositions are completely inapposite.  For
example, in Senko v. La Crosse Dredging Corp., 352 U.S. 370, 1 L. Ed. 2d 404, 77 S. Ct. 415 (1957), plaintiff was a deckhand on a
dredge which the court acknowledged was not frequently in transit. 
The dredge was anchored to the shore at the time of plaintiff's
injury.  The court pointed out:  "[E]ven a transoceanic liner may
be confined to berth for lengthy periods, and while there the ship
is kept in repair by its `crew'.  There can be no doubt that a
member of its crew would be covered by the Jones Act during this
period".  Senko, 352 U.S.  at 373, 1 L. Ed. 2d  at 408, 77 S. Ct. 415.  Clearly, the work barges in the case at bar are not analogous
to the dredge, which sometimes cruised, or a transoceanic liner,
which also cruises.  The work barges in the case at bar had never
been used by defendant for transportation, and there was no
intention on the part of defendant to ever so use them in the
future.
     Another case relied on by plaintiff, McCarthy v. The Bark
Peking, 716 F.2d 130 (2d Cir. 1983), has no bearing on the case at
bar.  That case involved the LHWCA and did not implicate the Jones
Act in any way.  Even the court in McCarthy acknowledged that
"cases decided under the Jones Act [citation] have looked to a
different test in determining what is a vessel for Jones Act
purposes."  716 F.2d  at 134 n.2.
     The evidence in this case is undisputed, and it leads to only
one reasonable conclusion:  the barge on which plaintiff was
injured is not a "vessel in navigation" within the meaning of the
Jones Act.  Plaintiff does not qualify as a "seaman" and is not
entitled to recover under the Jones Act.  The trial court properly
entered summary judgment in favor of defendant on plaintiff's Jones
Act claim.           
     For the foregoing reasons, the judgment of the circuit court
of Pulaski County is affirmed.

     Affirmed.

     HOPKINS and CHAPMAN, JJ., concur.