Court of Appeals
For the First
DUTRA CONSTRUCTION COMPANY,
APPEALS FROM THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay,
U.S. District Judge]
Selya, Circuit Judge,
Bownes, Senior Circuit
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.
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
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). SeeMcCarthy v.
Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).
A. The Dredge.
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 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 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
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
C. The Travel of the
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
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 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
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
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
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 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 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
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 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. SeeHubbard v. United States, 514
U.S. 695, 711 (1995). Thus, the principle of staredecisis
-- 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. 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. Seeid. 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 enbanc
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 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.
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
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.
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 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. SeeBernard,
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
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, 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. SeeBennett, 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 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. SeeDiGiovanni, 959
F.2d at 1124.
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.
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
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.
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.