Chandris, Inc. v. Latsis – Oral Argument – February 21, 1995

Media for Chandris, Inc. v. Latsis

Audio Transcription for Opinion Announcement – June 14, 1995 in Chandris, Inc. v. Latsis

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William H. Rehnquist:

We’ll hear argument now in Number 94-325, Chandris v. Latsis.

Mr. McCreadie.

David W. McCreadie:

Mr. Chief Justice and may it please the Court:

This case involves the common and troublesome question of who is a seaman under the Jones Act.

Unfortunately, the Jones Act does not define the statutory term, seaman, so that task is left to the courts.

This Court has struggled with that issue over the years, as have the circuit and district courts.

Traditionally, the test that has been used, even if it has more than two parts, breaks the seaman test down into the examination of the connection of the employee to his employer, or the vessel and then, secondly, the employee’s contribution to the vessel itself.

In Wilander, this Court addressed the second part of that test, and answered the question of whether a seaman must contribute to the navigation of the vessel and, of course, the holding was that that is not necessary.

The seaman must merely contribute to the function or contribute to the mission of the vessel.

The issue today addresses the first question, and that is, what is the employment-related connection to the vessel that is necessary?

Wilander, although it addressed the navigation issue, did make statements and give clues as to what employment-related connection is necessary.

One important–

Sandra Day O’Connor:

Well, but I think what it didn’t do was answer the question whether the employee’s contribution has to be simply substantial, or a more permanent one, in effect, with regard to his maritime employment.

David W. McCreadie:

–That issue was certainly left open.

Sandra Day O’Connor:

Yes, it was, and the Fifth Circuit seems to have a more restrictive test, pointing, perhaps, to permanent employment in that capacity, and the Second Circuit spoke in terms of a substantial contribution in terms of duration or nature.

David W. McCreadie:

And I think that that focuses us squarely on the issue today.

Sandra Day O’Connor:

And what test do you say this Court must adopt?

David W. McCreadie:

Well, in analyzing, Justice O’Connor, those two tests, I believe that although there were some good intentions in the Latsis test, there are two fatal flaws in that test, and therefore I advocate the Fifth Circuit test which has withstood many, many years of tests under fire, under battle.

Sandra Day O’Connor:

What do you say are the fatal flaws with the Second Circuit’s articulation of the test?

David W. McCreadie:

The Latsis test… the problem with the Latsis test is that we do know from Wilander that Longshoreman and Jones Act seamen are mutually exclusive.

We also–

Sandra Day O’Connor:

Do you think Mr. Latsis could have been covered under the Longshoreman and Harbor Workers’ Act for these injuries?

David W. McCreadie:

–Yes.

Sandra Day O’Connor:

Did… to your knowledge, does the record disclose whether he ever made an application under that act?

David W. McCreadie:

The record does not disclose whether Mr. Latsis made an application.

Going outside the record, if may, Mr. Justice, there is no indication that he has done so.

I have, in anticipation of that question, tried to determine without unduly getting off the track to determine whether he still has that remedy, and my preliminary research is that under 33 U.S. 13(g), I believe it is, there is a tolling section that would allow him to proceed that remedy if he’s unsuccessful as this case runs through the courts.

John Paul Stevens:

Are engineers treated as longshoremen?

David W. McCreadie:

Traditional crew members who hold the position of engineers are not treated as longshoremen.

They are permanently assigned to a vessel, and therefore, under any tests–

John Paul Stevens:

No, but even a land-based engineer; would a land-based engineer be a longshoreman?

David W. McCreadie:

–A land-based engineer who was performing ship repairs would be a longshoreman under the Fifth Circuit Robinson test, and in my view the correct test, because he’s going to split time between shore and sea, and depending on how much time he spends at sea and how much time at shore, he could be a longshoreman.

Most of those questions, of course, are for the jury to decide, and this Court has been unequivocal also in that statement, that seaman status, unless it’s so clear–

John Paul Stevens:

But is it not true that there are a category of personnel who are neither seamen nor longshoremen who might go to sea once in a while?

David W. McCreadie:

–There is that category, and in that case they are entitled to traditional negligence remedies, but here, because he is performing ship repair, or species of ship repair, I believe he is covered by the Longshore Act.

William H. Rehnquist:

Well, is that technically correct to say he was… I mean, he wasn’t getting down there and soldering any wires himself, was he?

David W. McCreadie:

There–

William H. Rehnquist:

He was a supervising engineer.

David W. McCreadie:

–To my knowledge there are no Supreme Court cases that specifically define what a repair is for the purposes of the Longshore Act or the Jones Act.

However, there are some circuit cases, and my interpretation of those cases is that it’s a fairly common sense definition, and that if a person is utilizing his talents to replace communication equipment, or shore up communication equipment, or to fix engine problems or consult on engine problems, that that person then would be doing repairs.

Antonin Scalia:

You mean, he can work in a skyscraper in Manhattan… I guess the individual here worked in New York most of the time.

Is that… am I right about that?

David W. McCreadie:

He… his residence was in New York, but he spent most of his living time in Miami, Florida, in the company offices and in a condominium that had been rented for his purpose in Miami.

Antonin Scalia:

But if you had the right computer hookup, you could really be in Manhattan in a high rise office building and still be a longshoreman.

David W. McCreadie:

That’s correct.

William H. Rehnquist:

Virtual reality.

David W. McCreadie:

Under that circumstance, I think to correct myself, he would not be a longshoreman, because to be a longshoreman you need to satisfy the situs and the status test, and although he would satisfy the status test, he would not satisfy the situs test, so I stand corrected on that answer.

That–

David H. Souter:

Even though there may be difficult cases, is there a possibility here to at least carve out a category of easy cases, and that is, if we assume that the individual is employed by the vessel owner, that the vessel is on a voyage, which I take it this one indisputably was, that the person is supposed to do some work for the vessel owner on the voyage… he’s not a passenger, and he’s not a stowaway… would we get into trouble in carving out a central category in that case when all those conditions are met, and say anyone in that capacity is a seaman for purposes of that voyage?

David W. McCreadie:

–Justice Souter, if I understand your question correctly, you’re reviewing the elements of the voyage test, which would cover the situation that you’ve described, and I believe not only would you create difficulties, I think you would open the floodgates to more and more litigation over this issue, and more importantly, I think–

David H. Souter:

Well, would we open floodgates to more litigation over the issue, or just open floodgates to more claimants who would succeed on their claims?

Is there a difference?

David W. McCreadie:

–I think both would occur.

More importantly, I believe that the Congress’ intent under the Longshore Act would be vitiated by that test.

To give you an example–

Antonin Scalia:

Well, before you get to the example, I’m not following the discussion, because I had been under the impression that you can’t be a long… a seaman for purposes of the voyage, that it is an employment status; that you are either a seaman, or you are not a seaman.

And if you are a seaman, and have made one voyage, that makes you a seaman.

You remain a seaman when you’re back in Manhattan.

David W. McCreadie:

–That is correct, and–

Antonin Scalia:

And if you get injured in the office building, because of that one voyage… is that what the Second Circuit does with it?

David W. McCreadie:

–That’s not what the Second Circuit does.

That is the correct law that you’re describing.

Antonin Scalia:

All right, but the Second Circuit’s test would say you can be a seaman for one voyage, and then when you go back to land, you’re no longer under the Jones Act and you–

David W. McCreadie:

The two flaws that the Second Circuit… the Latsis test suffers from are not the same as the voyage test that was introduced in the respondent’s brief on the merits.

David H. Souter:

–The voyage test would even be more favorable–

David W. McCreadie:

More liberal, yes, sir.

David H. Souter:

–to seamen than the Second Circuit test would be.

Is there a textual reason why the voyage test is wrong?

David W. McCreadie:

The reason why the voyage test is wrong is, it has absolutely no resolving power, and the examples of who would qualify under that test, you can go on and on and on, and in fact the justice of this Court–

David H. Souter:

Well, we’re going on and on and on now.

Wherever we go, we seem to go on and on and on, and is there a textual reason why the voyage test is impermissible?

David W. McCreadie:

–Well, the voyage test does not comply with the requirements that were set down in Wilander, and the voyage test certainly would not be restricted to the master or members of the crew.

David H. Souter:

Well, I take it you’re telling me implicitly that there’s no textual reason why it’s wrong.

David W. McCreadie:

I’m not sure I–

David H. Souter:

I keep asking you, and you… there’s nothing in the act.

David W. McCreadie:

–The act unfortunately only has the word seaman–

David H. Souter:

It just uses the word seaman.

David W. McCreadie:

–Yes, sir.

Sandra Day O’Connor:

So there is no textual–

–Well, there is no definition, is there?

David W. McCreadie:

There is no–

Sandra Day O’Connor:

It’s been left to this Court to define, and I guess under the Longshoreman and Harbor Workers’ Act we’ve extended coverage to people who make short trips all the time.

They’re in and out of the harbor, and they’re making very short trips, and to use a voyage test might get us into some difficulty, I assume.

David W. McCreadie:

–For example, the justices of this Court could be seamen under the voyage test.

If the ABA or another bar group chartered a vessel and they operated the vessel, and there was a seminar on board, and one or more of the Court was invited to be a speaker on that cruise, that voyage, and there was an injury to one of the justices, the simplistic elements of the voyage test would be met, because the justice would be contributing to the mission of the vessel… i.e., giving an educational seminar, like an entertainer on a cruise ship, you would be hurt during the voyage, and it would be for the duration of the voyage.

John Paul Stevens:

But you wouldn’t be employed by the vessel.

David W. McCreadie:

But the voyage test does not require employment.

That’s another reason–

John Paul Stevens:

Well, my hypo did.

I thought Justice Souter’s hypo did.

David W. McCreadie:

–Then that would–

John Paul Stevens:

You could be employed by the vessel, and be… and further, be at sea when you get hurt.

David W. McCreadie:

–If you impose a further duty that was not mentioned in the respondent’s brief on the merits, that there be an employment relationship between the owner of the vessel and that employee, that would exclude the example of the justices of this Court, but it would not exclude the example of the general counsel of the cruise line, the CEO of a cruise line, the in-house marketing person from the cruise line, all who would have employment relationships with the vessel owner, and then you’ve satisfied that element, and then you go right back to the point of, they’re on a voyage for the duration of the voyage–

John Paul Stevens:

But those are all clearly examples of people who would not be longshoremen, I assume.

David W. McCreadie:

–That’s correct.

John Paul Stevens:

So we do have a category of people who are neither longshoremen or seamen.

David W. McCreadie:

There certainly are.

Anthony M. Kennedy:

I take it the situs of the injury, the fact that it occurred on a voyage, is relevant, is one of the factors?

David W. McCreadie:

In the Latsis case itself, the Longshore Act in my view does cover the situation, because he was a ship repairman.

The examples I gave of the general counsel, the CEO, and an in-house marketing person, they do not fall within the category of the Longshore Act.

Sandra Day O’Connor:

I’m asking–

–But if you’re a seaman, and the injury occurs on land, you are still covered under the Jones Act as a seaman, I assume.

David W. McCreadie:

Absolutely correct, and that is because the seaman status is not established at the exact time of the accident, or… and what you’re doing immediately before the accident.

In seaman’s cases, this Court over and over has decided that it doesn’t want seamen to walk in and out of coverage, so you looked to the overall employment relationship, decided what status the person was, and whether they were on shore or on a ship, they’re entitled to seamen’s remedies.

Anthony M. Kennedy:

But in a close case, where the claimant is arguing for seaman’s status, is it relevant that the injury occurred on the vessel on a voyage?

That’s where Justice Souter was leading.

It seems to me there may be a category of easier cases, and we can say that in a close case this can be the dispositive factor.

It occurred on the voyage, where he’s subject to the perils of the sea, he’s got to do what the ship’s doctor says, et cetera, et cetera.

David W. McCreadie:

That is certainly a complicating factor, and it makes it more difficult for us just to exclude that person.

I’ve tried to point out examples of how using just a voyage test creates problems.

Antonin Scalia:

Well, it’s not a complicat… it seems to me, if you’re being consistent to your argument, your answer to Justice Kennedy has to be no, that it is irrelevant where the injury happened to occur.

The individual is either a seaman or not a seaman.

Now, it may tug at the heartstrings, and it may be a… you know, an emotionally significant factor, but as I understand your theory, the question is whether the individual is normally doing the work of a seaman, and if not, even if he happens to have been injured at sea, during a voyage, it should make no difference.

David W. McCreadie:

And I agree with your summary.

Perhaps I misunderstood your question.

It does not fit the… or, the status tests that I advocate.

It does have a certain intuitive, simplistic appeal that it is an easy test to apply, and from that perspective, I thought that it is complicating, but it’s not–

Anthony M. Kennedy:

But it seems to me not only intuitive, but it has some bearing on the rationale for the act, which is that the seaman is subject to the discipline of the ship, the orders of the ship’s doctor, et cetera, which is precisely why we have seaman’s status at all.

David W. McCreadie:

–The perils of the sea is certainly one of the policy considerations in protecting seamen.

The problem comes in when you use that as your sole basis for fashioning a seaman test.

Anthony M. Kennedy:

Well, I’m suggesting that it is a weighty factor, not the sole factor.

David W. McCreadie:

It is one of the factors involved, but, for example, as we discussed earlier, seamen who are on shore are no longer subjected to the perils of the sea, and–

Ruth Bader Ginsburg:

Mr. McCreadie, I thought I had your position right, but from what you’re saying now, I’m not clear.

I thought your position is you could type every person, every employee.

Before the accident occurs, you say, tell me what Latsis’ work is, and I will tell you whether he’s a seaman or not.

David W. McCreadie:

–That is correct.

Ruth Bader Ginsburg:

So that, in answer to Justice Kennedy’s question, on your theory it should be irrelevant whether Latsis was injured in a sea storm, because you know from day 1, based on the obligations and duties of his job, that he will not be a sailor.

I thought that was your position.

David W. McCreadie:

That is my position, and I probably confused it by, again, conceding that there are some advocates who want to just look to the place of the injury to determine whether someone is a seaman.

That is contrary, I believe, to Wilander, contrary to the Fifth Circuit test–

Ruth Bader Ginsburg:

But your position is, it’s not even a relevant factor.

David W. McCreadie:

–That is correct.

William H. Rehnquist:

Okay.

Well, Mr. McCreadie, enlighten me, if a seaman is on land, and is injured, say, by a negligent automobile driver, can he recover from the ship’s owner?

David W. McCreadie:

Mr. Chief Justice, he can, and that’s the series of Supreme Court cases that hold that you’re not going to let a seaman walk in and out of coverage solely because of the fortuity of where the injury occurs.

His status is established by looking at his entire employment with that vessel, or that employer, and when he comes ashore and is injured, I think there’s cases dealing with dance halls and all… you know, all kind of activities that seamen engage in.

They all are entitled to maintenance and cure, and seamen’s remedies, including the Jones Act.

David H. Souter:

Mr…. I’m sorry.

No, you go ahead.

Go on… go on.

Let me go back to Justice Kennedy’s question with a slight variation, although I’m not sure it really is a variation.

Let’s assume whatever the test is, you need a tie-breaker.

I’m the judge.

I cannot decide.

You know, there’s this and there’s that… I’m on the fence.

Why is it an impermissible tie-breaker to give dispositive weight to the fact that the voyage… that the ship was on a voyage, that he was employed, that he was not a passenger, or a stowaway, and the injury resulted from an accepted hazard of sea voyages?

Why is that an impermissible tie-breaker on any test?

David W. McCreadie:

I agree with your position, and it is a line-drawing problem we have here today.

Where do you draw the lines?

I do not agree that whether they’re on a voyage should be the end-all and be-all of the tests, but I do advocate using that at the very end–

David H. Souter:

Justice Kennedy wasn’t suggesting that, and at this point I’m not suggesting that.

I’m just saying, whatever the test is, we come out at a point of equipoise.

Why is that factor, or that congeries of factors, not a reasonable and sufficient basis to break the tie?

David W. McCreadie:

–I argue that that’s how the tie should be broken, and that the perils of the sea that occur at sea or on vessels that are in movement, that that should be added to the Fifth Circuit test to provide the proper test for this Court.

William H. Rehnquist:

Well, you’ve taken several different positions here.

First, you seemed to agree with Justice Kennedy, and then in response to Justice Scalia’s and Justice Ginsburg’s questions, you say it was irrelevant that… and now you say it’s a permissible tie-breaker.

You’ve taken three different positions.

Which do you end up with?

David W. McCreadie:

My position is that you cannot use perils of the sea as the sole basis for your test.

You have to start with Wilander, and use an employment-related connection to a vessel.

The only place that the perils of the sea comes into play is, when you’re trying to draw the fine line at the very end of the test, I think it’s relevant to distinguish between longshoremen and seamen.

Anthony M. Kennedy:

Well–

–Well, then you have to retract your answer to Justice Ginsburg, who suggested to you, shouldn’t we be able to know, before the voyage ever occurs, by looking at the person’s job description, whether or not he or she is a seaman?

David W. McCreadie:

The test that we’ve advocated here would allow the employer or the court to make that determination–

Sandra Day O’Connor:

No, it wouldn’t–

–Isn’t that what the Fifth Circuit does?

You look at the job as a whole, and look to see whether there is a permanent employment as a seaman on a vessel?

David W. McCreadie:

–The permanent connection–

Sandra Day O’Connor:

Is that right?

I mean, is that more the focus of the Fifth Circuit test?

David W. McCreadie:

–The Fifth Circuit test, the first prong, or… is the permanent connection.

There is–

Sandra Day O’Connor:

All right.

Now, the Second Circuit does not require a permanent connection.

It says, there can be some in-and-out coverage to the extent that the employment, or the contribution of the employee was substantial in terms of its duration and nature, is that right?

David W. McCreadie:

–That is correct.

Sandra Day O’Connor:

Now, neither the Second Circuit nor the Fifth Circuit use the so-called voyage test, as I understand it.

David W. McCreadie:

No port that I know of has used that test.

Sandra Day O’Connor:

And we’re not reviewing a judgment that used that test.

That would be going off in another direction, would it not?

David W. McCreadie:

That is correct.

This case involves a dispute between the Robinson-Barrett test and the Latsis test, and the problem with the Latsis test is that when it uses the terms, duration or nature, it allows a person who spends, in the jury’s eyes, 90 percent of their time on shore, and who have some contact with vessels, to be seamen, and that is contrary to the Fifth Circuit test, and I believe to the statements in Wilander.

Anthony M. Kennedy:

Is that one of the fatal–

–I think it’s relevant to what we’re considering here.

I mean, the concession you’ve made with regard to the place of the injury, because frankly, I thought the strongest part of your case was the necessity for the employer to be able to tell whether the employee is a Jones Act employee, or not a Jones Act employee, and I thought we had two categories of people.

You could study the person’s job and decide he was or he wasn’t.

But you have now told us that there are three categories of employees.

There are those who are clearly Jones Act, there are those who are clearly not Jones Act, and there is a third category where it’s too close to call, as Justice Kennedy says, and they either are or are not Jones Act, depending upon where they get injured.

David W. McCreadie:

I think the–

Antonin Scalia:

That does not strike me as a very happy system of–

David W. McCreadie:

–The difficulty is, and the reason that that is a problem, is because, as this Court has pointed out, the Court has to give the law, and the jury has to make the decision, and what I’m trying to explain is that there are situations that superficially fall under the Robinson-Barrett test, and makes a longshoreman into a seaman, and that is contrary to Congress’ intent as to what they want to occur.

And what I’m trying to explain in the fourth part of my brief on the merits is that, in order to fortify the Fifth Circuit test, to shore it up so that it is more precise, so that it does help a jury reach a realistic and honest appraisal of the seaman’s status and also help an employer know what his employees are, that conceptually it is fair to shore that up by adding in that you need either a permanent connection, or a substantial connection, as long as the substantial prong is fortified by exposure, the perils at sea, not at the dock, or to the dangers of vessels while they’re underway at sea.

Stephen G. Breyer:

–That’s why I didn’t really see the difference between the briefs.

I mean, I know this must be my fault, but they… it seems to me it comes down to whether the perils of the sea, and they say the hazards of the sea, and then later on they define hazards of the sea to be deep sea perils and the dangers incident to the movement of vessels on navigable waters, and once I saw that, it seemed to me, what’s the difference?

I take it what you’re trying to get at is, there are people who wear blue suits, used to put up sails, work on the motors, everyone would say they’re seamen, and they’re covered all the time.

David W. McCreadie:

Correct.

Stephen G. Breyer:

Then there are some other people like a welder, who may come on the ship when it’s at the dock, and the question, suppose the ship, while the welder’s on it, goes out on a little trip, and he keeps welding.

Well, common sense would say he should be covered while he’s out there but not when he gets back to the dock.

And then we’re trying to get a test to work that out.

All right.

My questions, I guess, are, is that right, and if that’s not right, still, what’s the difference between your two tests?

David W. McCreadie:

The difference between the tests are that the perils of the sea is mentioned in the Latsis test, but when they use the term, regularly exposed to the perils of the sea, they did not address or use the word regularly, so under the Latsis test–

Stephen G. Breyer:

Regularly.

David W. McCreadie:

–all a person has to be is exposed at the time of his injury, he’s a seaman–

Sandra Day O’Connor:

Well, now, wait a minute.

I thought that the Second Circuit in the very case we’re looking at here said that one of the requirements of their test was that the course of the plaintiff’s employment regularly exposed the plaintiff to the hazards of the sea.

David W. McCreadie:

–That’s right.

Sandra Day O’Connor:

That was their express test, and that’s what I hear you saying the test ought to be.

David W. McCreadie:

But they didn’t apply the “regularly” portion, because regularly–

Sandra Day O’Connor:

Well, did they articulate the right test?

Sandra Day O’Connor:

Let’s go that far.

David W. McCreadie:

–The perils of the sea prong is correct.

That does conform with what I believe the rule should be.

The problem with the Latsis test is that they use that alternative, nature or duration, and they allow the shore-based person to gain sea-time, if you will, while he’s endeavoring to provide services to a ship while he’s sitting in his office, and it’s that activity which can be up to 90 percent, according to the facts in this case, that I believe violates Congress’ intent under the Longshore Act, and therefore, pursuant to Wilander, violates the Jones Act.

Sandra Day O’Connor:

Well, you know, it’s very hard to pin you down, because you’ve just wavered this way and that throughout this argument, but the Second Circuit had several requirements in its test, and one of them was that the plaintiff’s contribution was substantial in terms of its duration or nature.

David W. McCreadie:

Correct.

Sandra Day O’Connor:

And you take issue with that, is that where you differ?

David W. McCreadie:

That is the main problem.

That is a problem with the test itself, because it allows shore-based employees, contrary to Wilander, to be seamen.

I also take exception with the fact that they articulate, regularly exposed to the perils of the sea, but they never used it and never applied it to the facts of the case, because if a person who is only out there 10 percent of the time is regularly exposed to the perils of the sea, then that doesn’t have any meaning that will help with a test that will resolve these cases.

Anthony M. Kennedy:

Those are the two fatal flaws that you were going to tell us about at the very beginning–

David W. McCreadie:

Yes.

Anthony M. Kennedy:

–of your argument?

All right.

And is there anything wrong with covering the welder if, in fact, he does go out on this mission, and they sail about 1,000 miles, and he sits there and welds?

I can see there would be something wrong with covering him once he comes back to shore, but is there anything wrong with covering him while he’s at sea?

David W. McCreadie:

That would be tantamount to the voyage test, and I believe there are problems with covering an employee just because he goes on one voyage.

You have to look to his entire employment-related connection to the vessel.

Antonin Scalia:

You say that he can’t go in and out.

David W. McCreadie:

That’s correct.

Antonin Scalia:

I thought your position was you cannot cover someone just for a voyage, and then when he comes back he goes out of his Jones Act status.

If he has the status, he has it for his entire employment.

David W. McCreadie:

That is correct.

Stephen G. Breyer:

Is that–

–Why is that?

I mean, why is it in the law… why is it that a person couldn’t, for example, be a welder, and then he says, I’m going to sign up now to help with this ship, and he goes on the ship and pulls the ropes and everything–

David W. McCreadie:

If he totally changes his job status–

Stephen G. Breyer:

–Yes.

David W. McCreadie:

–and is permanently assigned to the vessel, he changes from a longshoreman into a seaman.

Stephen G. Breyer:

All right, and why do you have to say that while he’s on the shore and doing the welding at the dock, he’s the one thing, and then when he goes out to sea we couldn’t say he’s the other?

David W. McCreadie:

Because this Court and Congress have shown a disinclination to allow people to wander in and out of coverage.

Sandra Day O’Connor:

Well, is part of the problem that the Longshoreman and Harbor Workers’ Act is set up as a sort of a scheduled Workman’s Compensation type program, and you calculate the benefits and the employer’s liability based on predictable factors of the employment, whereas the Jones Act is just an open-ended damages cause of action, isn’t that right?

David W. McCreadie:

That is correct.

Sandra Day O’Connor:

And so what the courts have done, basically, is not to adopt this voyage test so that they keep a stable Longshoreman and Harbor Workers’ Act compensation scheme in place, is that right?

David W. McCreadie:

That is correct, and that’s the benefit of this system.

Sandra Day O’Connor:

But you’ve got problems, because the two systems are not the same, and so at the margins you run into some difficulties.

David W. McCreadie:

I’ll reserve my remaining time, Mr. Chief Justice.

William H. Rehnquist:

Very well, Mr. McCreadie.

Mr. Rosenberg, we’ll hear from you.

Would you enlighten me on the same question I asked Mr. McCreadie?

I’ll detail it more.

Supposing that someone who is concededly a seaman is on a ship which ends a voyage at Boston, and he lives in Boston.

He’s walking down Washington Street and is run over by a car, and the ship is going to sail next week.

He’s just home for a week.

Is the ship owner liable to him for any damages under the Jones Act?

Lewis Rosenberg:

Mr. Chief Justice, and may it please the Court:

I was thinking about answering that question when I got on my feet immediately.

There’s an important element necessary in the Jones Act before an employee can bring suit successfully.

He must show that the employer is negligent.

It’s not a–

William H. Rehnquist:

It’s not a–

Lewis Rosenberg:

–no-fault system.

He must establish that there’s some neglect on the part of the employer.

William H. Rehnquist:

–And if the shipping company had nothing to do with the car that ran him over on Washington Street, it’s not responsible–

Lewis Rosenberg:

Exactly.

William H. Rehnquist:

–under the Jones Act.

Lewis Rosenberg:

Exactly, Your Honor.

There’s no… they control their risk.

It’s not something that makes them a guarantor of the safety of all their employees.

Antonin Scalia:

What if it was the company’s car?

Antonin Scalia:

What if it was the company’s car, and it was negligent?

Lewis Rosenberg:

And it was negligent–

Antonin Scalia:

And he’s on land–

Lewis Rosenberg:

–Then the employer would be liable.

Ruth Bader Ginsburg:

–I think Mr. McCreadie was mentioning that he would be typed a sailor for purposes of other relief like maintenance and cure.

He’d get maintenance and cure, wouldn’t he, if he had a sailor status?

Lewis Rosenberg:

Of course, Your Honor.

As a matter of fact–

Ruth Bader Ginsburg:

Which he wouldn’t have, if he didn’t have sailor status.

Lewis Rosenberg:

–Exactly.

Ruth Bader Ginsburg:

Even though there’s no question of negligence.

Lewis Rosenberg:

That’s right.

That’s right, and that’s an important feature of it.

If I might just digress just for a moment from the discussion about the particular test to be applied to something of a very important nature with regard to the status of this appeal that I think I should bring it to the Court’s attention, the decision below is based upon two independent bases.

One of them, of course, is what we’ve been focusing on so far, which test to be applied, but there’s another one as well, and that has not been addressed in the petition, nor has it been addressed in the brief on the merits, and that is to say, the Second Circuit’s holding that the trial judge was in error in instructing this jury as a matter of law that the vessel was out of navigation when it was in drydock in Germany, and that is an independent basis for the Court’s decision, and it has not been addressed in the petition nor in the brief on the merits.

Now, I’m prepared… and we have addressed that merits of that position in our brief, because we support it.

There are two cases of this Court that support that position, and are very important in the Jones Act and the evolution of the Jones Act which was cited in the Wilander case, and those are the Senko cases and the Butler case.

William H. Rehnquist:

Those are rather extreme decisions, though, some 30 years ago, weren’t they?

Lewis Rosenberg:

Well, I would not characterize them as extreme, because they’ve been guiding courts all along since that time, in terms of coverage, but just let’s examine factually what Butler involved and see how it fits in with the situation at hand.

In Butler, there was a tugboat that had not been moved in the year in question, except when it was towed to a drydock.

It was, I guess, effectively decommissioned.

It was awaiting Coast Guard inspection, it had no captain, it had no other crew members except a laborer who was assigned to it, and the laborer was mysteriously found drowned, and the assumption was that he had somehow fallen from a gangplank.

Now, that vessel, this Court held, that question as to whether that vessel was or was not in navigation was a question for a jury, in the same way that the Second Circuit held that whether or not that drydock, 6 months, with very close planning, which had a crew on board, where Mr. Latsis was, I contend, one of the crew members on that boat, on that ship for that period of time, they executed a plan where they restored that vessel in 6 months and she was on her way, and as a matter of fact, Mr. Latsis attended the shakedown cruise, and when they put it back into drydock in Norfolk–

William H. Rehnquist:

Was he on the ship during the 6 months it was in the drydock?

Lewis Rosenberg:

–He worked on that ship for 6 months, 7… the testimony is, 7 days a week for 6 months, from early in the morning to 11:00 at night.

William H. Rehnquist:

But he didn’t live on the ship?

Lewis Rosenberg:

He didn’t live on the ship, no.

There were some… there were some personnel living on the ship.

He was not one of the personnel that was accommodated on the ship, but nonetheless, that certainly shows a very intimate connection.

Now, if this Court is going to reverse the Second Circuit, considering that finding, it’s going to do so without considering this point as to whether the… this Court’s prior holdings have vitality, without anybody briefing this point, and I think it’s elementary in procedure before this Court that before you take such action, reversing precedent, even if it’s old precedent, Your Honor… it’s old, but it was cited in Wilander, in the unanimous opinion of this Court.

Lewis Rosenberg:

Wilander took cognizance of both Senko and Butler, and the efficacy of the rules laid down there, and I don’t think that was a casual observation that was made.

Ruth Bader Ginsburg:

But didn’t Judge Oaks say that if the accident had happened while the boat was in drydock, maybe Latsis would not have been a sailor?

Lewis Rosenberg:

He said it was an open question.

He said, whether… in those circumstances an employee connected to that vessel might or might–

Ruth Bader Ginsburg:

And if it was an open question, then he had to at least have contemplated the possibility that Latsis is a seaman sometimes and not a seaman at other times.

Lewis Rosenberg:

–I think what he meant by that is, how substantial was the association of Mr. Latsis to that vessel during that period of time, in the context of his whole employment?

In other words, the–

Antonin Scalia:

How is that affected by where he’s injured?

Lewis Rosenberg:

–Excuse me?

Antonin Scalia:

How is that affected by where he is injured?

Lewis Rosenberg:

Well, you know, there was an issue raised about the intuitive approach to these kind of cases.

As a matter of fact, the Fifth Circuit used those very words when it rejected affording seaman status to pilots, which forever have always been considered seamen.

But in any event, to address that point, I think it’s very compelling.

It’s a tie-breaker, as Justice Souter pointed out.

The man was enduring the risk that–

Antonin Scalia:

I don’t find it compelling at all.

I… why is it compelling–

Lewis Rosenberg:

–Well, because–

Antonin Scalia:

–if what you’re looking for is status, what–

Lewis Rosenberg:

–Certainly, status.

Antonin Scalia:

–the individual’s employment status is?

Lewis Rosenberg:

The purpose of the Jones Act–

Antonin Scalia:

It’s based on his job description, not where the injury occurs.

Lewis Rosenberg:

–As everyone has pointed out, Your Honor, there are close cases, a lot of close cases.

Antonin Scalia:

Fine.

Well, what about flipping a coin?

That’s a good tie-breaker, too.

Lewis Rosenberg:

Well, I don’t think–

Antonin Scalia:

I mean, why do you seize upon the place of the injury?

Lewis Rosenberg:

–It’s not merely the place of the injury, Your Honor, but the risk associated.

Lewis Rosenberg:

In other words, this was, according to the Second Circuit, and I think logically it follows, a risk of the employment, of being involved in a vessel underway on the sea, and that’s what’s compelling about it.

Sandra Day O’Connor:

Well, but if he were a seaman, if Latsis is in fact, or was in fact at the time a seaman for purposes of the Jones Act, and if his retina had detached while he was sitting in his office on the dock, he would have been covered, wouldn’t he, as a seaman under the Jones Act?

Lewis Rosenberg:

If you assume that somehow or other the doctor was neglectful in treating him in that context, yes.

Sandra Day O’Connor:

Same doctor, said don’t… you know, don’t worry right now.

Lewis Rosenberg:

Yes.

Antonin Scalia:

Do you find it compelling that he was sitting at his desk?

Lewis Rosenberg:

No.

Antonin Scalia:

Then why do you find it compelling when he’s sitting on the boat?

Lewis Rosenberg:

Because–

Antonin Scalia:

I don’t see the difference.

Lewis Rosenberg:

–If he was sitting on a dock, Your Honor, he would have alternatives.

If he had some question about the competence of that physician, and if you read the record in this case you’d have questions about the competence of this physician, he could go somewhere else.

He wasn’t bound to accept only the medical care that was afforded him by this particular physician.

He wouldn’t have that risk of the sea.

He wouldn’t realize injury as a result of the risk of the sea.

William H. Rehnquist:

One of the risks of the sea is you get a bad ship’s doctor?

Lewis Rosenberg:

No.

I think a risk of the sea is something that, because of the confinement, you’re restricted to whatever’s offered to you in that context.

That’s why it’s a risk of the sea, Your Honor.

It’s not–

Sandra Day O’Connor:

Now, if he’s not a seaman, would he be covered under the Longshoreman and Harbor Workers’ Act?

Lewis Rosenberg:

–He might.

I mean, to step out of the record again, I know of no… he has not made any application for that coverage, and–

Sandra Day O’Connor:

Right, but as far as you know he would be.

If he isn’t a seaman, then you think–

Lewis Rosenberg:

–He might be, but he’s not a longshoreman, that’s for sure, and there might be some objection to his… in terms of the employees having a choice, I’m sure he’d prefer… if the employee had control of choosing whether he would be considered a Jones Act sailor–

Sandra Day O’Connor:

–Which he doesn’t?

Lewis Rosenberg:

–No.

Then I’m sure–

Sandra Day O’Connor:

It’s not a scheme that’s set up for employee option, is it?

Lewis Rosenberg:

–No, it’s not.

Sandra Day O’Connor:

We’re clear about that.

Lewis Rosenberg:

Most certainly.

Sandra Day O’Connor:

He either is, or he isn’t.

Lewis Rosenberg:

Exactly, Your Honor.

Exactly.

John Paul Stevens:

Mr. Rosenberg–

–How would he make his choice?

I mean, you never finished your sentence.

If he had a choice, what would he choose?

Lewis Rosenberg:

Well, if the employer had a choice–

John Paul Stevens:

The employee.

I thought you were talking about–

Lewis Rosenberg:

–No, the employer.

The employer would cap his liability, obviously, with… I mean, it’s a schedule.

It says, so many weeks at two-thirds of… if he lost his eye, they’d give him 160 weeks… two-thirds of 160 weeks of his salary if it’s a total loss of the eye.

I don’t know… I’m not quite sure what–

John Paul Stevens:

–But the choice is not perfectly clear if it’s an employee, because one side you get absolute liability, and on the other hand you have to prove negligence.

Lewis Rosenberg:

–That’s right.

It’s not a no-fault scheme, the Jones Act.

You’ve got to prove negligence, and I think the record here amply, amply supports a conclusion that there was negligence here, no doubt about it.

In the–

David H. Souter:

May I just go back to one answer, or one question you answered a moment ago?

You’re not making the argument that place of injury combined with exposure to hazards at sea is, I think the word was compelling, you’re saying that it may, indeed, break the tie.

Lewis Rosenberg:

–Yes.

David H. Souter:

And that’s perfectly consistent with answering that if a person is a seaman, and has the same eye injury on land, he will still be treated as a seaman for purposes of the act?

Lewis Rosenberg:

Exactly.

As a matter of fact, this Court has held quite the same in a–

Antonin Scalia:

Of course, it’s very close whether he’s a seaman or not, in which case, you ought to find the fact that he was on land compelling.

Lewis Rosenberg:

–It might be, judge.

Lewis Rosenberg:

It might very well be.

William H. Rehnquist:

Does the Second Circuit’s opinion say it felt this was a very close case that needed a tie-breaker?

Lewis Rosenberg:

No.

That’s something we’ve introduced into the concept.

Ruth Bader Ginsburg:

The Second Circuit was concerned with the error in an instruction to the jury–

Lewis Rosenberg:

Absolutely.

Ruth Bader Ginsburg:

–is that right?

Lewis Rosenberg:

Yes, in several facets.

Ruth Bader Ginsburg:

And it happened to be the error to which you… the instruction about permanent connection to which you did not object.

Lewis Rosenberg:

Yes, that’s quite correct, Your Honor.

Ruth Bader Ginsburg:

And so… and this case was not… it was not determined that Latsis was a seaman.

It was sent back for retrial under a proper instruction.

Lewis Rosenberg:

Exactly, under the test of the Second Circuit as modified by this Court’s holding in Wilander eliminating the requirement that the employee aid in navigation, which this Court directed no longer be part of any test for seaman status, that there are others besides blue water sailors that are covered by the Jones Act.

And it’s clearly contemplated that… for instance, in enumerating all the occupations and trades that historically have been considered as seamen before the Jones Act was enacted, and that was the starting point for the analysis in Wilander, there have been engineers, pilots, and all kinds of occupations that have been said to have contributed to the mission of a voyage or the function of the vessel, and those alternatives were incorporated into… in the… universally in all the tests.

William H. Rehnquist:

The term, ship’s engineer has a somewhat different connotation, doesn’t it, than Mr. Latsis’ profession?

Lewis Rosenberg:

Mr. Latsis was a supervising engineer.

In other words, he supervised the engineers that were on board the vessel.

William H. Rehnquist:

What do the nonsupervisory, laboring-in-the-vineyard type engineers do on board a vessel?

Lewis Rosenberg:

Well, they operate the engines.

William H. Rehnquist:

Yes.

Lewis Rosenberg:

They effectuate repairs at sea when necessary.

They coordinate, or make suggestions, but ultimately the decisionmaking is Mr. Latsis’ as the superintendent engineer as to how to execute on… and they accept the directions, whether they’re on hand… in other words, Mr. Latsis regularly… the evidence indicates he visited these ships regularly in port, and also traveled with them at sea.

William H. Rehnquist:

The engineers operate the ship’s machinery, don’t they?

Lewis Rosenberg:

Yes, exactly.

They’re operating engineers, I think, in a major way, as… the railroad used to have engineers on, operating engineers as well, and they’re fixed plant operating engineers as well.

The category, engineer, covers a lot of territory.

John Paul Stevens:

Now, Mr.–

–Mr. Rosenberg, can I ask you… I should know this, and I’ve just forgotten it.

Isn’t there both a situs test and a status test under the Longshoreman’s Act?

Lewis Rosenberg:

Under the Longshoreman’s Act, yes, sir.

John Paul Stevens:

Now, in the situs test, would he have met the situs test in this case?

Lewis Rosenberg:

Well–

John Paul Stevens:

What is the situs test?

Lewis Rosenberg:

–The situs is the area… the Longshoreman, as the act has indicated, is to cover principally… the impetus for the enactment was to cover people loading and unloading materials on board ships.

John Paul Stevens:

Could he be a longshoreman if he was 1,000 miles out to sea?

Lewis Rosenberg:

Don’t think so.

John Paul Stevens:

So, I mean, it wouldn’t meet the situs test.

Lewis Rosenberg:

No, it wouldn’t, no.

John Paul Stevens:

So–

Lewis Rosenberg:

And in his office he wouldn’t meet it, either.

John Paul Stevens:

–So isn’t it true that a lot of people who are at sea… this is following up on Justice Souter’s approach… would not meet the situs test under the Longshoreman’s Act.

Lewis Rosenberg:

That’s true, yes, and as a matter of fact, there is a case that was not mentioned so far, a recent case of this Court, Gizoni, a ship repairman, where the employer advocated that since he was a ship repairman, how could he be a seaman?

Well, this Court found Mr. Gizoni, a ship repairman, a seaman because he traveled on work platforms that were floating, and therefore the vessel requirement was met, even though it was several vessels.

Anthony M. Kennedy:

Do you agree that our law indicates that you cannot go in and out of seaman and longshore status?

Lewis Rosenberg:

Yes, I do.

Stephen G. Breyer:

Well, that’s exactly what I wondered in the Second Circuit test.

That is to say, they talk about a person, other things being satisfied, that he either… he makes a contribution that is substantial either in respect to duration, or nature.

Lewis Rosenberg:

Correct.

Stephen G. Breyer:

So I’m thinking, what about our welder?

Ninety-nine percent of his time he’s at the dock.

One day, he’s repairing the bulkhead and they say, come with us, continue to do it while we go to Hamburg.

Now, reading that test, I thought it would cover him while he is making a substantial contribution in terms of nature, though not of time.

Lewis Rosenberg:

Exactly.

Stephen G. Breyer:

And therefore he would be covered.

But when he got back to the shore, and he got off the boat, and he went back to his normal welding facilities, he’s no longer covered, while, on the other hand, the seaman, who’s there because of duration, i.e., the real sailor, is covered always.

Now, that’s how I was reading that, and that’s why I started out with Justice Souter’s idea.

Perhaps that would work.

But now from various… I’m quite shaken as to whether that works or doesn’t work.

I don’t think that’s what the Second Circuit is saying.

Well, regardless–

Lewis Rosenberg:

They didn’t address that, no, but let me tell you that there is a case in this Court that was decided in 1959, Braen v. Pfeifer, which is cited in the reply brief… we didn’t cite it in our brief, but it’s in the reply brief, which involved a… the question as to whether you could step out of seaman status.

And this was a… this was someone who was a seaman, and he was assigned to nonseaman duties, and the question was, by that assignment, would that take him out of seaman status, and the holding was that it was not, and I think implicit in that holding, and this also I think is also the rationale of Senko, was the fact that it was an intention that he would return at some point, that he was destined to once again encounter the hazards of the sea, and therefore he retains that seaman status.

Stephen G. Breyer:

–So how could we do that?

What I’m basically getting at is, I don’t understand why the welder shouldn’t be covered when he’s out there in the ocean.

Lewis Rosenberg:

I think he should be.

Stephen G. Breyer:

But I can perfectly well understand why he shouldn’t be covered once he comes back to the dock.

Lewis Rosenberg:

If, when he comes–

Stephen G. Breyer:

So how does the law work in order to achieve that result without cutting off the person with the blue… you want him to be covered when he comes back to the–

Lewis Rosenberg:

–Exactly.

Stephen G. Breyer:

–So how does it work, this statute, to get there?

Lewis Rosenberg:

If the… if your hypothetical welder, Your Honor, did an odd job at sea, so he wasn’t regularly… that wasn’t part of his regular employment, that was extraordinary.

Then if the welding job at hand was substantial, he would become a seaman.

When he went back, however, if… in proving that it was isolated, did not ever encounter that kind of risk or job again, or was not intended to, nobody planned him doing that, then in effect his job changed, and he lost the seaman status because he’s no longer–

Sandra Day O’Connor:

Well, the Second Circuit test would not cover the welder who was asked to go to Hamburg, because it clearly said, you also have to find that in the course of the plaintiff’s employment, the plaintiff is regularly exposed to the hazards of the sea.

The Second Circuit wouldn’t cover the welder.

Lewis Rosenberg:

–Well–

Sandra Day O’Connor:

Now, I thought that this case had gone back to be… have the jury consider this under the Second Circuit’s test.

Lewis Rosenberg:

–Oh, no.

That has not occurred as yet, Your Honor.

Sandra Day O’Connor:

But that’s their plan.

Lewis Rosenberg:

Oh, yes.

Sandra Day O’Connor:

That’s what we’re reviewing.

Lewis Rosenberg:

Exactly.

Sandra Day O’Connor:

And you don’t like the Second Circuit test.

Lewis Rosenberg:

Well, no, I do like it, but I would modify the word, regular–

Sandra Day O’Connor:

But you didn’t petition for certiorari.

Lewis Rosenberg:

–No, I did not, no.

Sandra Day O’Connor:

And as it now stands it will go back under that test, which certainly wouldn’t cover the welder who’s sent to Hamburg, would it?

Lewis Rosenberg:

Not if that was isolated, no.

No, unless we wanted to modify the word, regular, to mean something different than that, nonsporadic, or non–

William H. Rehnquist:

You in effect accepted the Second Circuit’s position for here.

Lewis Rosenberg:

–I think so.

William H. Rehnquist:

And you’re faced with your opponent who says it should be a much narrower definition of seaman.

Lewis Rosenberg:

Exactly, Your Honor.

William H. Rehnquist:

So presumably, neither of you would think it would cover the welder who went to Hamburg.

Lewis Rosenberg:

Unless… with the proviso that there was some recurrence to that type of–

William H. Rehnquist:

That he frequently went to Hamburg?

Lewis Rosenberg:

–Not necessarily–

William H. Rehnquist:

Well, we could all agree to that.

Lewis Rosenberg:

–Hamburg, but some place where–

[Laughter]

I’m sorry.

William H. Rehnquist:

I said if he frequently went to Hamburg, I think we could all agree–

Lewis Rosenberg:

Sure.

Absolutely, but the concept, I think, is that it was not isolated, whether it was Hamburg or some other place where he would perform that function while at sea.

Antonin Scalia:

–I have really lost the thread of the disagreement, then, between you and the other side of the case.

You both agree that it has to be regularly, that the individual does not occupy seaman status unless he’s regularly at sea, is that right?

Lewis Rosenberg:

Well, we’re obliged to do that because that’s what the Second Circuit said, and we’re supporting the Second Circuit.

However, that term regularly has not been defined in any… to any degree, and I think contextually the… regularly in that situation means not sporadically, not spasmodically.

Not related to the clock, however, because that was the one thing that the Second Circuit was clear in rejecting, that having a time-only index–

Ruth Bader Ginsburg:

Mr. Rosenberg, we’re talking about a charge to the jury.

Lewis Rosenberg:

–Yes.

Ruth Bader Ginsburg:

Judge Oaks wrote a charge for that jury.

Judge Kearse agreed that’s a perfectly fine charge, but what she says, it wasn’t plain error.

Lewis Rosenberg:

Yes.

Ruth Bader Ginsburg:

So either the Fifth Circuit words are right, permanent, or the Second Circuit’s words are right, substantial… what is it +/?

but more refinements we can’t give, because what we’re talking about is, what was the correct charge–

Lewis Rosenberg:

Exactly.

Ruth Bader Ginsburg:

–for a jury to be given, in the words of the Fifth Circuit, or in the words of the Second Circuit?

Lewis Rosenberg:

Exactly.

Ruth Bader Ginsburg:

And nothing more elaborate is going to help this district judge, who is either going to be finished with the case, if the district judge is right, or we’ll have to charge another jury, if we uphold the Second Circuit’s decision.

Lewis Rosenberg:

Except, of course, that other point I brought up, Your Honor, that in addition, Judge Oaks’ opinion states it was error to have excluded from the jury’s consideration the period of time the vessel was in drydock from their determination whether Mr. Latsis, in his overall employment, had a substantial connection to that vessel.

The Second Circuit held that error, and that ruling has not been challenged here, so in effect the choices I see before the Court are, as you pointed out, Your Honor, the Fifth Circuit test or the Second Circuit test, but in any event a remand and a new trial, and that seems inevitable on the state of this record.

William H. Rehnquist:

You say there should be a new trial even though we were to adopt the Fifth Circuit test?

Lewis Rosenberg:

Yes, Your Honor.

Yes.

But the Fifth Circuit test was not always so time-oriented.

Until the Bach case, and until the Chevron case, the Fifth Circuit was not so narrowly construing that test.

This is a gloss that has only occurred, relatively speaking, in recent times, and the older Fifth Circuit test, where that emphasis of time was not so narrow, is very much the same, except I think in the Second Circuit it’s more well articulated, to get away from that concept, and I think that that–

John Paul Stevens:

May I reveal my stupidity once more, but you know, we’ve talked about this welder going to sea, just one example.

I thought he would be covered under the Second Circuit test, because I thought they left the duration as one way of proving substantiality, and nature the other way, and if the nature of his work during the voyage was what every seaman does… maybe they just send this welder out… I thought that would be covered under the Second Circuit test, but you’ve conceded it would not be.

Lewis Rosenberg:

–Well, if the hypothetical we presented was just one isolated instance–

John Paul Stevens:

Well, it’s one long voyage from, you know, here to Tokyo… or Yokosuka, I guess.

Lewis Rosenberg:

–I had assumed that since there was a port mentioned that he worked only at that destination, and not en route.

No.

If that were true, I would… I’d say that the welder is covered.

Sandra Day O’Connor:

The–

–And isn’t perhaps a way to… I’m sorry.

The Second Circuit clearly had an additional requirement, in addition to, that it be substantial contribution.

The Second Circuit also said that the plaintiff’s employment had to regularly expose the plaintiff to the hazards of the sea.

Lewis Rosenberg:

Yes.

Sandra Day O’Connor:

So the Second Circuit had an additional requirement.

Lewis Rosenberg:

Exactly, Your Honor.

Sandra Day O’Connor:

And the welder on a one-time trip would not be covered under that test.

Lewis Rosenberg:

Assuming a trip was finite, it wasn’t a long, you know, worldwide cruise kind of thing, he would or wouldn’t be covered under that test, but you have to employ that term to ascertain whether or not that requirement was made, that fourth requirement.

David H. Souter:

Is it possible to read the Second Circuit test and to answer Justice Breyer’s question in some such way as this: we will start with agreement that once a person has attained seaman status, he doesn’t lose that status by going ashore for a month or something of that sort, he doesn’t become a nonseaman when he crosses the gangplank, and we will assume that when someone does not have seaman status, mere presence fora short time, perhaps even as an employee on the ship, may not be enough.

But there are some cases, and perhaps this is one, in which, by… in which the previously nonseaman goes on a voyage and performs duties which in fact indicate a change in his job, and when that happens, as it might be if the welder went to sea and while they were at sea somebody said, my God, there’s a leak in the hull, can you weld it shut, and he goes down, of course he’s contributing to the mission of the ship, et cetera.

In that case, he is simply performing a different kind of job for his employer from what he does when he sits in drydock and so on, and this may be one of those cases, and the Second Circuit’s test is consistent with applying… may consistently be applied to find seaman status, because once the job has changed, he regularly is performing those duties.

Is that perhaps a way to reconcile–

Lewis Rosenberg:

I think that is–

David H. Souter:

–and answer what is bothering all of us?

Lewis Rosenberg:

–I think that does, because that clearly defines it at that point.

Sandra Day O’Connor:

Well, except that the Fifth Circuit would say no.

Lewis Rosenberg:

That’s right.

Sandra Day O’Connor:

That you look at the permanent job assignment–

Lewis Rosenberg:

Well–

Sandra Day O’Connor:

–and if the permanent assignment is to be in an office and supervise the engineering on the whole fleet of ships, even though occasionally having to make a trip at sea in doing that, the permanent assignment is not that of a seaman.

Lewis Rosenberg:

–I think–

Sandra Day O’Connor:

I mean, you would have a difference in the circuits on that.

Lewis Rosenberg:

–I think that Justice Souter’s put his finger on something, though.

This… the test in that circumstances would be, of that particular employment, but the nature of the employment changes.

Antonin Scalia:

Well, that’s nifty, but people always come in and say, whenever they go to sea, they say, well, this was a new job.

I mean, there’s no end to the litigation over that, when everybody’s going to claim that as soon as he gets assigned in the course of any employment, to go on a ship, well, that was a new job.

Lewis Rosenberg:

Well, judge, there are other requirements besides being assigned to the ship.

We’re talking somebody who’s involved–

Ruth Bader Ginsburg:

Mr. Rosenberg–

–It wasn’t a new job.

This was part of his regular job.

–you answered… you gave a firm answer to the question, there’s no in-and-out for a true sailor.

Lewis Rosenberg:

–Right.

Ruth Bader Ginsburg:

He’s assigned to land for 2 months, he remains, he’s ever and always a sailor.

Now, you seem to be shuffling on whether somebody who is not that traditional sailor, but who spends a considerable amount of time on a voyage, can be, for that temporary time, a sailor, even though he’s going to go back on shore and be an engineer and sit in his office in Miami, and maybe fall down the stairs there.

Is Latsis ever and always a sailor, or can he be a sailor, under your argument, when he’s in the middle of the ocean on the way to Bermuda, and yet not be a sailor when he gets back to his office in Miami and falls down the stairs?

Lewis Rosenberg:

Traditionally, it has been that once you achieve the status of seaman, you don’t step out of it, as long as that continuity of the duties related to that employment continue, but people do change jobs.

Ruth Bader Ginsburg:

But his job hasn’t changed.

He occasionally goes on ships, but he spends most of his time on land.

Are you… is your answer yes, you must type him as either a sailor or not so that just as when he had the detached retina in the middle of the way to Bermuda, if he got it in his office in Miami, when he got back, he would still be a sailor?

Lewis Rosenberg:

Oh, he’d still be a sailor, yes, but there’s no negligence of an employer in the office in Miami, so he would–

Ruth Bader Ginsburg:

I’m assuming that the office is ill-equipped, or the stairs in the property that was rented by the employer were defected, so the negligence is still there.

Lewis Rosenberg:

–If there’s negligence, if he’s a seaman–

Ruth Bader Ginsburg:

You’re saying that this man… you two seem to agree, then, that either you’re a sailor, or you’re not a sailor, and there’s no in-and-out.

There’s no welder case possible, because either that welder is always a sailor, or never a sailor.

Lewis Rosenberg:

–That’s… that’s–

Stephen G. Breyer:

So if you don’t permit the in-and-out, then a person who goes on one trip to Hamburg, and he has a blue suit, he puts up the sails, he steers the ship, he repairs the engine, he rows half the way–

[Laughter]

He is not covered under the act, because you’d call him not a seaman?

I mean, that’s what to me makes very little sense, frankly.

Lewis Rosenberg:

–I agree, it doesn’t seem to make any sense.

Stephen G. Breyer:

All right.

Then isn’t Justice Souter’s approach a way of dealing with it, though it has Justice Scalia’s cost?

Lewis Rosenberg:

It does, but there’s another factor I think we’re overlooking.

Traditionally, in terms… this question of a voyage has come up, and it’s been called a voyage test, and except in… well, even in modern times, but at the times under consideration, the times before the Jones Act was enacted, seaman, blue water sailors traditionally would sign on for a voyage.

In this Court’s opinion in Wilander, it cited no less than five times a single case decided by the district court in New York by Judge Howe, called the Buena Ventura, as typifying how the analysis went to determine who was a seaman.

This was a case–

William H. Rehnquist:

Thank you, Mr. Rosenberg.

Your time has expired.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.