McDermott International, Inc. v. Wilander – Oral Argument – December 03, 1990

Media for McDermott International, Inc. v. Wilander

Audio Transcription for Opinion Announcement – February 19, 1991 in McDermott International, Inc. v. Wilander

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William H. Rehnquist:

We’ll hear next in No. 89-1474, McDermott International v. Jon C. Wilander.

Mr. Doyle, you may proceed whenever you’re ready.

James E. Doyle:

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

The case before you today involves a question of statutory interpretation; specifically who is entitled to sue for damages under the Jones Act.

That section, which is also known as the Merchant Marine Act of 1920 provides a right of action to a seaman who is injured in the course of his employment.

The term seaman is not defined further in the body of the statute and it has been the subject of much debate.

This case also provides an opportunity for the Court to reestablish and reaffirm a uniform national rule.

The last definitive opinion reached by this Court was 33 years ago.

And since that time there have been two divergent tracks which have been taken from that opinion even though it was clear.

One group of circuit courts decides seaman status questions based on an analysis, at least in part, of the subject seaman’s relationship to the transportation function or the navigation function of the vessel.

The Fifth Circuit in particular among the others does not take this into consideration, at least not in the same way.

This has led to an inconsistency of results throughout the country and needs to be addressed.

This case particularly draws that line for the Court, because in this case there is little question, and the Fifth Circuit so found, that Mr. Wilander, the seaman, the person claiming status under the act had no responsibilities relative to the vessel to which he claimed status which were related to its transportation or navigational function.

It also presents a contrast for the Court because as a matter of first principle in this case, the district judge was forced to decide what was American law because the plaintiff’s invocation of the Jones Act required it since he was injured in a foreign environment.

He was injured on a platform in the Persian Gulf.

Sandra Day O’Connor:

May I ask a preliminary question for my information?

James E. Doyle:

Yes, Justice O’Connor.

Sandra Day O’Connor:

Is there a general maritime negligence action which the respondent could have brought?

James E. Doyle:

No, not in this case, Your Honor, because the person he was bringing suit against would have been his employer and except for the Jones Act’s variation from the general common law there would be no action against his employer for the general maritime negligence.

Sandra Day O’Connor:

Now, may I also ask you what difference you think it makes whether Mr. Wilander aided in the navigation of the vessel?

If a person who lives and works aboard ship… why isn’t that person just as much a member of the crew, as it were, as someone who aids in navigation?

James E. Doyle:

I think that the concept of aid to navigation has always been considered as a degree of the permanency of the attachment between the worker and the employer’s vessel.

Sandra Day O’Connor:

But not a necessary concept.

James E. Doyle:

Well, the Fifth Circuit says it’s not necessary, but the other circuit courts seem to say that it is, in its particular–

Sandra Day O’Connor:

And we haven’t spoken to the issue?

James E. Doyle:

–You have spoken to the issue many times.

The last time definitively in Senko v. La Crosse Dredging which reemphasized the aid to navigation requirement.

And I believe, Justice O’Connor, following up with your question, it must be at all times considered when reviewing the Jones Act that it is an employment-based statute.

It’s a statute which depends on the reasonable expectations of the employer and the employee.

In this case, McDermott International would have been perfectly justified in believing that an employee such as Mr. Wilander, who is a painter foreman operating on platforms in the Persian Gulf, would be more exposed to those types of hazards and risks associated with platform work than he would have been with the perils of the sea.

James E. Doyle:

And I should make one further point in response to Justice O’Connor’s question.

Mr. Wilander did not live aboard the vessel to which he claims attachment for purpose of his Jones Act claim.

Sandra Day O’Connor:

Would you comment on the facts a little bit to that extent?

James E. Doyle:

Yes, Justice O’Connor.

Sandra Day O’Connor:

I guess he slept, ate, and planned his activities aboard the barge DB-9?

James E. Doyle:

That is correct, Your Honor.

He did.

And he participated with respect to the Gates Tide, the American vessel, by using it as a means of transport to and from the areas in which he did his work.

Sandra Day O’Connor:

Do you concede that he was a member of the crew of DB-9?

James E. Doyle:

No, I don’t, because he’s not a member of the crew of that vessel any more than he is of the Gates Tide, since he did not contribute to the transportation or navigational function of the DB-9.

Sandra Day O’Connor:

Assuming we think that’s an essential test–

James E. Doyle:

Exactly so.

Sandra Day O’Connor:

–which the Fifth Circuit does not.

James E. Doyle:

Exactly so.

But this Court’s opinion in Senko v. La Crosse Dredging is relevant, because the DB-9 when it performs its work, you’ll find from the record, is frequently tied up to a platform.

It’s not mobile.

It stays in place and in position and serves as a floating hotel.

And in this Court’s opinion in Senko this quotation is found:

“The duties of a man during a vessel’s travel are relevant in determining whether he is a member of the crew while the vessel is anchored. “

William H. Rehnquist:

Well, take a vessel different than the one we’re talking about here, Mr. Doyle.

How about the mess crew on the vessel or people who are just there to repair in case things go wrong?

Are they not seamen under your definition?

James E. Doyle:

I think the mess crew certainly is composed of seamen, Your Honor, because they serve the vessel, Mr. Chief Justice, in its use as a vessel as opposed to something which has another mission.

William H. Rehnquist:

So they don’t have to participate in the actual steering of the ship, then?

James E. Doyle:

Exactly.

William H. Rehnquist:

That would be true of repair people, too?

James E. Doyle:

Well, repair people present a special problem because, of course, ship repairs are specifically identified under the L&H Act and it could be that under some circumstances they would be covered there and not under the Jones Act, but if they’re brought along on a sea voyage, specifically for the purpose of conducting those repairs to the engines or the appurtenances of the vessel which are required during its voyage, they are aiding that vessel in its navigation every bit as much as the master.

Sandra Day O’Connor:

How about the dance instructor and the bartender on the Love Boat?

[Laughter]

James E. Doyle:

They, also, Justice O’Connor, aid, aid in the function of the vessel, for a different reason though perhaps.

Sandra Day O’Connor:

Are they covered?

James E. Doyle:

I think they are covered but perhaps for a different reason.

The analysis that I’ve made of those types of activities in the brief is one which points out that the… that the cruise ship engages in maritime commerce and part of its business is to transport passengers from one place to another and to keep them entertained during the vessel’s journey.

Since they do, they perform a necessary function of the vessel in maritime commerce which is no different from that performed by the fishermen who are on the fishery ship or the cook who’s represented on the tug boat which plies the waters around Manhattan Island.

Byron R. White:

Do you think your… the Seventh Circuit agrees with your view?

James E. Doyle:

I think they do, Justice White, although they–

Byron R. White:

All you need to do is to contribute to the function of the vessel and navigation?

James E. Doyle:

–I approach–

Byron R. White:

That doesn’t sound like the court of appeals for the Seventh Circuit.

James E. Doyle:

–No, sir, it doesn’t sound like their opinion, but I approach it this way, Justice White.

I think that the opinion that was reached by the Seventh Circuit in Johnson was based upon a particularized circumstance.

A person who was working aboard a structure which under title I, section 3 would have been a vessel but reached a point in its life when it was not and that’s when this particular individual in Johnson did his work, was when the vessel was no longer a Jones Act vessel.

Byron R. White:

Well, let me… how do you differ then with the Fifth Circuit?

James E. Doyle:

I differ in this way.

The Fifth Circuit says that your connection with a vessel as a putative seaman is relevant if you are connected only to those activities which are conducted aboard the vessel when it’s stopped.

There’s not a case that I’ve seen in the Fifth Circuit, which is primarily the oil field area, which holds that a function which is being performed by a person who is a seaman on a nontraditional vessel is performed while the vessel is in motion or truly within navigation.

Mr. Wilander’s is a case in point.

The Gates Tide is a vessel.

It’s a 185-foot crew boat.

But Mr. Wilander didn’t have anything to do aboard that vessel until it was moored to the platform.

Likewise the crew–

Sandra Day O’Connor:

Do you take the position he was simply in the position of a passenger aboard the Gates Tide?

James E. Doyle:

–I do, Justice O’Connor.

Sandra Day O’Connor:

Do you go that far?

James E. Doyle:

I do.

Sandra Day O’Connor:

You think he’s just a passenger?

James E. Doyle:

Well, he is just a passenger who is there in an employment-related function.

In that sense I would–

Sandra Day O’Connor:

He’s also an employee?

James E. Doyle:

–He’s an employee, not a master of the Gates Tide, but an employee of McDermott International which had chartered it.

James E. Doyle:

But further to your question, Justice O’Connor, I would submit that Mr. Wilander’s employment-related connection with respect to the Gates Tide is no different in any material degree from a legal secretary who works in a Manhattan law firm and lives on Staten Island and rides the ferry to work every day.

Sandra Day O’Connor:

Did the employer own all these vessels, the Gates Tide, and… or lease the Gates Tide and the DB-9?

James E. Doyle:

The employer owned the DB-9–

Sandra Day O’Connor:

Is it a group of vessels, in effect?

James E. Doyle:

–There were a group of vessels there, yes, ma’am.

Sandra Day O’Connor:

Well, maybe we should look at whether he’s attached to “a group of vessels”.

Is that a possibility?

James E. Doyle:

That is a possibility; however, in this case it presents special problems, because not all of the vessels to which he could have been detached were American.

The DB-9, as I told you, was Panamanian and actually the Gates Tide which was only there for 5 days during the 15 months that Mr. Wilander was employed was the only American vessel that was on the job.

Byron R. White:

Well, what about a… what about a fishing boat?

They’re going to go whale hunting and they take along a guy that knows how to spear whales.

He doesn’t do anything to the vessel.

He just rides and all of a sudden they see a wnale.

And he harpoons it.

Now he certainly is the… he is performing the entire mission of the vessel.

They want to get a whale and this fellow involved in this case, the whole reason for this… for this ship he’s on is to go around and tie up and let the fellow paint, just like… instead of harpooning a whale he’s doing some painting, which is the only reason that vessel runs around.

James E. Doyle:

Justice White, I’d appreciate the opportunity to finish my answer to your earlier question.

The distinction here is that the fisherman who is looking for the whales is performing a mission of the vessel which is engaged in maritime commerce.

Not so Mr. Wilander, because the mission that he’s performing is solely and strictly related to the platform.

Byron R. White:

So, so if this fellow had been… while the boat that he was… the boat where he was living and operating… if he had been hurt on the way would he have been a seaman?

James E. Doyle:

No, sir, I think not, but perhaps–

Byron R. White:

Well, it would have been in navigation.

James E. Doyle:

–The vessel would have been in navigation.

Byron R. White:

He would have been… and his being carried to do his mission is certainly part of the boat’s mission.

James E. Doyle:

I think this, Justice White.

I think that he has to form an attachment to the vessel which is employment-related in scope and in content.

Byron R. White:

No, go ahead.

James E. Doyle:

And to restrict… and to restrict that as the Fifth Circuit does… not to restrict it, rather to broaden it as the Fifth Circuit does… and to say that we are going to consider your attachment to the special mission as satisfying all requirements of status under the aid to navigation test is inconsistent with what this Court has ever said.

William H. Rehnquist:

I don’t understand your answer to Justice White’s question about the harpooner on a whale boat.

Why is the respondent Wilander different?

James E. Doyle:

Well–

William H. Rehnquist:

You added that one wasn’t in maritime commerce, but that’s simply adding on something to the mission of the ship that I hadn’t understood from your previous definition.

James E. Doyle:

–Well, in my brief, Mr. Chief Justice, I had taken pains to point out that the Jones Act’s outer limits is going to be defined in some way as what maritime commerce has covered and engaged in by the vessel and I suggest in my brief that part of the reason why the Robison opinion to the Fifth Circuit has lost its support–

William H. Rehnquist:

Well can’t you answer the question any more shortly than that?

James E. Doyle:

–I’m sorry.

I believe that the whaling vessel is different from a vessel which is going from platform to platform and after the rides is not engaged in maritime commerce, while the whaling vessel is at all times engaged in this type of commerce.

Byron R. White:

Well, that still doesn’t get to why… you mean just that because the vessel has stopped and tied up, he suddenly changes from a seaman to a nonseaman?

James E. Doyle:

No, sir, he never attained the status as seaman in the first place.

The whaling vessel did.

William H. Rehnquist:

What’s the difference?

Well, what the difference?

Why does one obtain it and the other doesn’t?

James E. Doyle:

For one thing, Mr. Chief Justice, in the real world, the person who is the whale spotter on the vessel is going to have other duties and he is going to form that type of permanent attachment to the vessel which is related to navigation.

Byron R. White:

That wasn’t in my hypothetical.

James E. Doyle:

No, sir.

Byron R. White:

All he did… his only job on that ship is to… is when they get into whale territory to get up there and look and be ready.

Mr. Doyle–

James E. Doyle:

Yes.

Antonin Scalia:

–what if it was seals instead of whales?

James E. Doyle:

Seals–

Antonin Scalia:

Would that have been different?

I mean if they had gone out hunting seals, they had to get off a ship in order to harpoon the darn thing, then he wouldn’t be a seaman?

James E. Doyle:

–That’s right.

Antonin Scalia:

But he would if he goes for whales, is that the difference?

James E. Doyle:

Well, in the case involving the seal clubbers which is in the respondent’s brief–

Antonin Scalia:

Right.

James E. Doyle:

–I believe that the distinction there between their case and mine is that those people performed the mission… the only mission that the vessel had to do which was in maritime commerce.

The only way they could perform it was to engage in that type of activity.

Therefore–

Antonin Scalia:

Well, what’s it saying here if somebody’s on a boat that does nothing but carry people to paint?

Antonin Scalia:

I mean that’s the boat’s mission.

This other boat carries people to harvest seals.

James E. Doyle:

–Well, as I’ve said, Justice Scalia, I think that the aid to navigation requirement at its base is an indicator, one of perhaps more than one, of the connexity between the seaman and the vessel itself.

The people who are engaged in a voyage which has several points of terminus, such as the seal clubbers, could be more attached to the vessel for another reason, not having anything to do with aid to navigation.

Mr. Wilander’s different because he only used this boat to go back and forth from his–

William H. Rehnquist:

You see you’re giving two separate answers it seems.

Maybe I misunderstand you.

But I thought at first was that the boat that Mr. Wilander was on… he did nothing ’til he got… ’til it stopped and he was there to paint and then he painted.

But there’s something more to your answer than that?

James E. Doyle:

–Well, it is, Mr. Chief Justice, in response to Justice Scalia’s question because I believe that the vessel that was involved in the case that was hunting for seals was more… had a more all-encompassing voyage.

The people actually formed a–

William H. Rehnquist:

Well, but now is that a requirement under this act?

We’re… if we… to have a more all-encompassing voyage?

James E. Doyle:

–Well, it is a requirement that the seaman, the person seeking status under the act, have a permanent attachment to the vessel.

And I suggest that the attachment in the seal clubber case is more permanent than Mr. Wilander’s, because he only used this vessel for limited purposes; to go back and forth to the platforms on which he did his work.

Byron R. White:

Well, he lived on it, didn’t he?

James E. Doyle:

No, sir, not on the vessel to which he claims attachment.

He lived on the DB-9.

Byron R. White:

Oh.

James E. Doyle:

And that’s another problem, Justice White, because the jury actually found him connected permanently to two vessels.

Sandra Day O’Connor:

Mr. Doyle, are we here reviewing a sufficiency of the evidence claim?

Is the issue we have to weigh whether there was enough evidence that he was a member of the crew to let this question go to the jury?

James E. Doyle:

Well, I think not, Justice O’Connor, because in this case, it is going to be controlled exclusively by what the court would have decided was relevant evidence.

The court decided in this case that it was relevant for the jury to consider on the permanent attachment question, Robison-type evidence, and if it had been in the Seventh Circuit, that evidence would not have been relevant so the jury wouldn’t have had it.

So it’s not a sufficiency of the evidence question.

Sandra Day O’Connor:

It’s whether the evidence was relevant at all.

James E. Doyle:

Exactly.

Sandra Day O’Connor:

What evidence?

James E. Doyle:

The evidence of his attachment to the special mission which he alleged was performed by this vessel, by the paint boat, as opposed to transportation as a navigation function.

David H. Souter:

Mr. Doyle, let me recap something which will at least explain why I’m not following what you’re saying.

David H. Souter:

You started off with a criterion that the seaman must be somehow engaged as an aid to the navigational function of the ship.

Then Justice O’Connor raised the question, what about the bartender and the dance instructor?

And you said, well, they qualify because they’re not steering or doing anything like that, but it’s the object of the ship’s passage through the water to engage in recreational activities which they are aiding.

Then we got to the question of the harpooner or the seal harpooner and the problem that you had with including the seal harpooner was that the ship was not moving at the time he harpooned and that the harpooning was not, as I understand it, an act in furtherance of the… of maritime commerce and I think the trouble, at least that I’m having, is understanding what you mean by maritime commerce.

In the case of the bartender and the dance instructor, the ship is at least part of the time moving around because that’s the way it makes its money, by carrying people, and the reason they want to be carried in the ship includes the fact that they would like to avail themselves of dancing and the drinking that goes on the ship.

In the case of… that we have before us, the boat in question has got to move through the water or the petitioner here, the respondent here doesn’t get to the platform, and it’s certainly doing it for a commercial purpose because that’s why they’re paying people to move the ship is to get him there so he can do the painting.

Why is there not a connection to maritime commerce in the latter case, but there is a connection to maritime commerce for the bartender?

I think we’re asking for that definition.

What is maritime commerce and how do you defend the distinction that you’re making?

James E. Doyle:

Justice Souter, specially I will refer to Justice Harlan’s dissent in the Senko case, because I think it clarifies it.

He said you look to the service of the vessel in its use as a vessel.

The bartender and the cruise ship dance instructor serve that vessel in its use as a vessel.

They complement its only reason for being.

Not so Mr. Wilander in his case, because he does nothing with respect to the navigation of the vessel.

He only has responsibilities which occur off the vessel, which happen when the vessel is tied up.

Byron R. White:

Yes, but it’s the reason the ship… that boat even moves.

James E. Doyle:

Well, the object of his work is the only reason that the vessel moves–

William H. Rehnquist:

Well, that’s him.

And he does much of his work from the vessel, does he not?

James E. Doyle:

–Actually the facts I believe will show, Mr. Chief Justice, that he supervised and he stationed himself on the vessel most of the time except when he was inspecting the work on the platform.

William H. Rehnquist:

Well, why did you say then that he does most of his work off the vessel?

James E. Doyle:

Because the object of his work is off the vessel.

He has to inspect the work that his painting crew has done and that takes place on the platform.

William H. Rehnquist:

If he were… if he lived on this boat and it went out to paint other boats regularly, would you agree that he was a seaman?

James E. Doyle:

I would agree that the degree of permanency that made up his attachment to that vessel would be different in character than it is here.

William H. Rehnquist:

But then does that you bring up to answer my question, yes or no?

James E. Doyle:

I would not agree that he’s a seaman, no, sir.

I think that–

William H. Rehnquist:

Even though that he lived on this boat… this boat that did nothing but paint other boats and they… it painted other boats regularly, he still is not a seaman?

James E. Doyle:

–I don’t believe he is and I don’t believe this Court has so held in Senko and the other cases that–

William H. Rehnquist:

And why is he not a seaman?

James E. Doyle:

–Because he doesn’t contribute, as this Court has said, to the navigational function of that vessel.

He contributes only to his–

William H. Rehnquist:

Although whale harpooners do?

James E. Doyle:

–Yes, sir.

Antonin Scalia:

But seal harpooners don’t?

James E. Doyle:

Well, I didn’t actually say that, Justice Scalia, and I think that they could well in the context of the voyage for the reasons that I’ve stated.

If there are no further questions of the Court–

John Paul Stevens:

I have just one.

James E. Doyle:

–Yes, sir.

John Paul Stevens:

You referred to Justice Harlan’s dissent in the Senko case?

James E. Doyle:

Yes, sir.

John Paul Stevens:

Do you think we have to overrule the Senko case in order to sustain your position?

James E. Doyle:

To sustain our position?

No, sir.

I think Senko is very consistent with what the Court had done before because Senko did consider the navigational activities of the subject worker to determine whether he was… whether he had status or not.

And very pertinent to our discussion here, Justice Stevens, they said he would have had a significant relationship to the navigation of the vessel when it went into navigation.

That’s the same thing that this Court had; a procurium opinion, Gianfala v. Texas Company; reversed a Fifth Circuit opinion.

It was assumed by the Robison family that they had some impact on oil drilling activity being maritime commerce, but also that particular worker in the Gianfala case did the same thing.

It was a semisubmersible rig and his job included a responsibility that he move it.

So this Court has never moved off the requirement that a person aid in the navigation of a vessel before he is considered to be a member of its crew.

And it’s never adopted the broader test that Robison uses to determine the attachment.

John Paul Stevens:

Have we ever passed on the bartender, dance instructor example?

James E. Doyle:

No, sir, you haven’t, but the argument in Senko, I think, was advanced against their obtaining status and it was met by Justice Harlan in the fashion that I’ve described.

Thank you.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Doyle.

Mrs. Bercier?

Jennifer J. Bercier:

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

As this Court stated only a few weeks ago in the admiralty case of Miles v. Apex Marine, we do not sail today in unchartered waters.

Jennifer J. Bercier:

Since the passage of the Merchant Marine Act in 1915, Congress has provided us with six indicia of their approval of the mission seaman’s test for status used in the Fifth Circuit in the overwhelming majority of admiralty courts in this nation.

As the Court noted in Miles… sir?

Byron R. White:

There aren’t too many of them, are there?

Jennifer J. Bercier:

There are 11 circuits I count that–

Byron R. White:

How many?

5?

6?

Jennifer J. Bercier:

–There are 11 circuits that I count, everybody except the Seventh and the Fourth–

Byron R. White:

I see.

Jennifer J. Bercier:

–along with the Fifth Circuit.

I did find admiralty decisions in all of them.

Some of them don’t have very many, Your Honor.

As the Court noted in Miles, such policy decisions by Congress are to be given their appropriate weight in decisional law, since it is by this means that Congress indicates the sphere within which its policy is to have effect.

As petitioner noted, the term seaman was not defined in the Merchant Marine Act, so our first indicia of the correct instruction to be given to this term must come from an examination of the meaning given to it by courts of that era.

We would refer the Court to some of the most important decisions of the era discussed more fully in our brief in that of amicus American Trial Lawyers, including the Ocean Spray, Saylor v. Taylor, which is the seal clubber case, the J.S. Warden, involving a bartender, written by Judge Leonard Hand, the Minna and the Murphy Tugs written by Judge Brown, who later as Justice Brown would sit on this Court and author the Osceola and the Buena Ventura, cited by this Court in the first three cases to discuss seaman status, Warner v. Goltra, Norton v. Warner, and South Chicago Coal Company v. Bassett.

Sandra Day O’Connor:

Mrs. Bercier–

Jennifer J. Bercier:

Yes, ma’am.

Sandra Day O’Connor:

–in the Norton case, the Court spoke about a seaman having, needing to have a permanent connection with a vessel.

Jennifer J. Bercier:

Yes, ma’am.

Sandra Day O’Connor:

Now how do we find that with the Gates Tide here?

This respondent lived aboard the DB-9, did he not?

Jennifer J. Bercier:

Yes, ma’am, he did live aboard the DB-9 and this goes back to your question earlier about a fleet of vessels.

He lived and planned his activities aboard the DB-9.

He would then be–

Sandra Day O’Connor:

So under Norton and your argument, you would say at least he’s a member of the crew of the DB-9?

Jennifer J. Bercier:

–Yes, ma’am.

Sandra Day O’Connor:

But that’s not the basis of his claim.

Jennifer J. Bercier:

I disagree–

Sandra Day O’Connor:

He has to… because it’s registered, only the Gates Tide as a U.S. vessel, he has to win or lose on the basis of his attachment to the Gates Tide?

Jennifer J. Bercier:

–That is how petitioner has characterized that.

Jennifer J. Bercier:

I don’t agree with that conflict of laws interpretation.

The DB-9 was owned by a company with its principal place of business in New Orleans, Louisiana.

Sandra Day O’Connor:

Well, how do we have to take this case?

I thought the jury found separately that he was a member of the crew of three different vessels.

Jennifer J. Bercier:

They found him a member of the crew of the DB-9 and the Gates Tide.

Sandra Day O’Connor:

All right, two.

Jennifer J. Bercier:

Yes, ma’am.

Sandra Day O’Connor:

And if we think he was not a member of the crew of the Gates Tide, what do we do here, because this other question isn’t here, is it?

Jennifer J. Bercier:

No, Your Honor, certiorari was not granted.

In fact, that was… certiorari was applied for on that issue and not granted.

Sandra Day O’Connor:

Right.

Jennifer J. Bercier:

I feel that–

Sandra Day O’Connor:

So that would be the end of the case if we think there wasn’t enough here to make him a seaman of the Gates Tide, that’s it.

Jennifer J. Bercier:

–Well, of course, I think you can still affirm that this circuit in this case… I think what this case is about is are we going to choose between the Fifth Circuit rule and the Seventh Circuit rule.

I think that’s really the issue before the Court.

And the Court referred… Justice O’Connor referred to the Norton case… Norton says specifically that navigation, as that term is used in the aid to navigation test, is not limited to putting over the helm but includes duties essential for other purposes of the vessel.

The plaintiff in Norton was on the vessel that never went out to sea.

So was the plaintiff in Senko.

Sandra Day O’Connor:

Well, even if we think that’s true, isn’t there this element of whether he has to be permanently attached to the vessel?

Jennifer J. Bercier:

Okay.

Permanent attachment is the–

Sandra Day O’Connor:

Here he was just hauled around for a few days on the Gates Tide, is that right?

Jennifer J. Bercier:

–He was assigned to the Gates Tide for this particular hitch, and this has been a rule which has developed in the Fifth Circuit due to the fleet of vessels concept where employees are required to work on different vessels.

And we have found that he has that degree of permanent attachment if he is performing for that period of this work, a substantial portion of his work aboard the Gates Tide.

That–

William H. Rehnquist:

Did the Fifth Circuit rely on this theory that you’re expounding on, to answer Justice O’Connor’s question?

Jennifer J. Bercier:

–That wasn’t part of the issues before the Court when we decided the–

William H. Rehnquist:

Can you answer my question yes or no?

Jennifer J. Bercier:

–I’m trying to remember, Your Honor.

No, Your Honor.

William H. Rehnquist:

It didn’t.

So you’re not really defending the reasoning of the Fifth Circuit in this case?

Jennifer J. Bercier:

As to the permanent attachment question?

William H. Rehnquist:

Yeah, as to whether he was attached to a group of vessels.

Jennifer J. Bercier:

No, Your Honor, I don’t think the Fifth Circuit relied on the fleet of vessels concept at all.

I think the Fifth Circuit concluded that the evidence was sufficient that he was a member of the crew of the Gates Tide.

Byron R. White:

But you’re not defending that, is that it?

Jennifer J. Bercier:

Oh, sir?

Byron R. White:

Are you defending that or not?

Jennifer J. Bercier:

Yes, I am.

I’m asking the Court to affirm the Fifth Circuit finding that he was a crew member of the Gates Tide.

Byron R. White:

I thought you were asking that perhaps we could affirm for another reason… that he was a member of… he was a seaman in terms of a whole group of vessels?

Jennifer J. Bercier:

No, Your Honor, that question was brought up as to the degree of his permanency of attachment.

But I feel that we need to affirm in this case based on the fact that he was a seaman as to the Gates Tide.

Antonin Scalia:

Mrs. Bercier, could you tell me how your theory excludes or does it exclude the instance posited by Mr. Doyle of a secretary who takes the Staten Island Ferry to work?

Jennifer J. Bercier:

Sure.

The lady who takes the Staten Island Ferry to work does not contribute to the mission of the vessel.

Very simply.

If there’s an analogy to be drawn in… or to the Staten Island Ferry, it’s to the man aboard the Staten Island Ferry who directs the cars where to park.

Antonin Scalia:

But if… so it would be different if her employer provided a boat whose only mission was to bring those employees from Staten Island to Manhattan?

Jennifer J. Bercier:

No, I don’t think so.

Antonin Scalia:

Why not?

That would be the sole mission of the vessel, just as here the sole mission is to bring painters to the platform.

Jennifer J. Bercier:

But she would not be contributing to that mission and the mission of the vessel–

Antonin Scalia:

Yes, she would.

She does the work.

Just as he does the painting, she does the secretarial work.

That’s the whole purpose of the boat, to get the employees to do the work.

Jennifer J. Bercier:

–Well, Your Honor, I think that’s a broad interpretation of seaman’s status and I won’t argue with you if you want to hold that but that would make her–

Antonin Scalia:

She’s a seaman, too.

Jennifer J. Bercier:

–I’ll make her a seaman, too, if you want to.

Antonin Scalia:

All right.

[Laughter]

I’m sorry.

I can’t hear you.

Jennifer J. Bercier:

I’m sorry.

Sandra Day O’Connor:

Would you speak so that we can all share in your response to the questions?

Jennifer J. Bercier:

Yes, ma’am.

David H. Souter:

Thank you.

You will acquit her that status even though the vessel is not paying her a salary and no one is paying her salary to be on the vessel?

Jennifer J. Bercier:

Well, Justice Scalia would afford her that status.

David H. Souter:

Well, I want to know what you would do.

Jennifer J. Bercier:

I would require her to contribute to the mission of the vessel.

I’m not quite sure about the hypothet if she is performing… if the vessel has any connection other than transportation to and from her employment.

If she is actually–

David H. Souter:

I thought it was just getting her from Staten Island over to Manhattan.

Jennifer J. Bercier:

–Uh-huh.

David H. Souter:

You’d make her a seaman there?

Jennifer J. Bercier:

No, Your Honor, I don’t think she would be a seaman.

The Fifth Circuit has held that employees that are transferred to and from work sites where the boat does not have anything to do with their duties are not seamen.

The important distinction in this case is that all the air compressors and hoses were kept aboard the Gates Tide at all times and they remained upon the Gates Tide and the crew pulled the hoses up on the platform to perform the work, so the vessel itself was essential to performing the painting functions.

David H. Souter:

The seaman was actually being paid to be on the boat–

Jennifer J. Bercier:

Yes, sir.

David H. Souter:

–to do his work.

Jennifer J. Bercier:

Yes, sir, he was.

That’s absolutely correct.

William H. Rehnquist:

Did the members of the crew of the Gates Tide do their painting while they were on the Gates Tide?

Jennifer J. Bercier:

Mr. Wilander, as I understand the facts, Mr. Wilander and at least one other employee would stay on the vessel to operate the machinery, the air compressor and the hoses.

There would be other members of the crew up on the platform doing the painting and he would also conduct his supervision from the vessel itself.

William H. Rehnquist:

So the Gates Tide would not have accomplished its mission if it had simply dropped these people off on the boat and then gone back.

Jennifer J. Bercier:

Absolutely, Your Honor.

And that’s why it’s designated as the paint boat for that purpose.

I would like to address the question of… raised by the Court as to what is maritime commerce.

Maritime commerce is business performed from a vessel.

I don’t think that Herb’s Welding can be made to stand for the proposition as petitioner argues that oil field and related activities are not maritime commerce.

They are maritime commerce when they’re performed from a vessel in this case.

I would like to also point out that adoption of the Seventh Circuit test for status would create a huge gap in coverage for thousands of offshore workers who are required to face the perils of the sea as incident to their employment.

The Outer Continental Shelf Lands Act by its own terms does not apply to those aboard vessels and as explained earlier, the statutory definition of the term vessel at 1 U.S.C. 3 includes all water craft used in transportation or capable of being used in transportation; therefore it would include all of the floatable special-purpose craft engaged in offshore mineral production.

If a worker on the outer continental shelf aboard one of these structures is not a seaman, he will be left with no remedy, because the Lands Act will not provide him with compensation nor can State workmen’s compensation laws be applied extraterritorially.

Sandra Day O’Connor:

How about workers on the platform itself out there in the Gulf?

How are they covered if they’re not seamen?

Jennifer J. Bercier:

If they are… if they’re on the outer continental shelf, they are covered–

Sandra Day O’Connor:

No, I said in the Persian Gulf.

Jennifer J. Bercier:

–Oh, in the Persian Gulf.

Sandra Day O’Connor:

That’s right, on a platform in the Persian Gulf.

What covers that worker?

Jennifer J. Bercier:

The Outer Continental Shelf Lands Act does not cover him.

Louisiana State Workman’s Compensation Law does not cover him.

I don’t know what the law of Qatar would do.

Sandra Day O’Connor:

So perhaps nothing unless local law provided it?

Jennifer J. Bercier:

Yes, I would feel sure nothing.

Sandra Day O’Connor:

Would you tell me why you think we need to be concerned about the so-called aid in navigation test as opposed to looking at whether someone is a member of a crew of a vessel and sufficiently attached and doing the mission?

What does aid in navigation add to that?

Jennifer J. Bercier:

Nothing, Your Honor.

That is the argument of petitioner.

As Judge Robison noted in… as Judge Wisdom noted in the Robison opinion, the aid to navigation requirement has been watered down so much that it’s really lost its meaning.

I think that the mission concept is much more useful and encompasses the changing needs of the maritime industry.

We would also refer the Court to the Oceanographic Research Vessels Act.

Vessels engaged in oceanography, like the paint boat Gates Tide, carry two crews; one a navigational crew and another crew of scientific personnel.

By means of the statute, Congress excluded these scientists from seaman status under the Jones Act if the ship owner obtained certification from the Coast Guard if the vessel is engaged in oceanography.

Jennifer J. Bercier:

Now, obviously this statute would never have been necessary except that Congress recognized these scientists would normally be classified as seamen.

I feel that the fourth and clearest indicia of congressional intent came in 1970 and 1971 when Senator John Tower of Texas introduced legislation to extend the benefits of the Longshoreman Act to workers employed offshore in marine extractive operations, which the bill defined as basically anything to do with mineral production over navigable waters.

The bill would have made such compensation the sole and exclusive remedy; no more Jones Act, no more General Maritime Law, no more Death on the High Seas Act and it would have amended the Longshoremans Act to remove the exclusion from member of a crew of a vessel unless that person was engaged solely under the Manning Requirements set forth by the United States Coast Guard.

So this bill would have in effect have codified the application of the Seventh Circuit rule in areas where mineral production takes place over navigable waters.

Presented with the opportunity to make this change in the law, Congress rejected this bill twice.

In 1982, Congress amended the Jones Act to preclude–

Antonin Scalia:

Did it pass a law rejecting the bill?

Jennifer J. Bercier:

–No, they just voted down the bill, Your Honor.

The bill was not passed.

Congress amended the Jones Act in 1982, though, to preclude coverage for alien workers engaged in oil and gas operations off the coast of foreign countries.

Vaz Borralho v. Keydril, cited in the brief of amicus American Trial Lawyers, discusses the legislative history of this amendment and concludes that its purpose was to clarify and codify existing conflict of laws rules.

The opinion quotes the statement of Senator Long of Louisiana:

“Such a clarification would not affect U.S. workers no matter where in the world they were or seamen on bluewater vessels or anyone on the U.S. continental shelf. “

Our brief also cites the statement of Senator John Breaux.

The Amendment

“does maintain the full range of U.S. Jones Act protection American courts currently give to American citizens employed on both traditional Merchant Marine vessels and special-purpose vessels engaged in exploration and development of mineral resources no matter where they are located. “

As the foregoing clearly indicates, Your Honors, Congress knows how to amend the Jones Act.

Congress knows that special-purpose vessels engaged in offshore oil production fit the statutory definition of a vessel.

Congress knows workers aboard these structures are covered under the Jones Act.

Congress has rejected the opportunity to change this status.

Congress has made its own policy decision, and this being the case, this Court must give effect to the will of Congress.

Sandra Day O’Connor:

Mrs. Bercier–

Jennifer J. Bercier:

Yes, ma’am.

Sandra Day O’Connor:

–would you help me where exactly what question we have to answer here.

Is it a sufficiency of the evidence claim?

Apparently our courts have left the answer to what is a seaman to be determined as a… by the tryer effect, in this case a jury.

Jennifer J. Bercier:

Yes, ma’am.

Sandra Day O’Connor:

I would have thought perhaps it was a mixed question of law in fact, but our cases don’t talk in those terms, do they?

Jennifer J. Bercier:

No, ma’am, they certainly don’t, and that has been the holding starting with Bassett–

Sandra Day O’Connor:

That’s very difficult for me to understand how it could be other than a mixed question, but assuming it’s not, what do we answer here?

Sandra Day O’Connor:

Whether certain evidence is relevant or whether the evidence was sufficient, or both, to go to the jury?

Jennifer J. Bercier:

–I think that what the Court is required to answer in this case… what I understood we were here for today… is to determine whether or not a worker must contribute to the transportation function of a vessel in order to be a seaman, as he is required to do now in the Seventh Circuit.

The Seventh Circuit would not make a bartender or a–

Sandra Day O’Connor:

Well, are we reviewing instructions to the jury then?

What are we looking at here?

Jennifer J. Bercier:

–I think we’re reviewing the test used by the Fifth Circuit–

Sandra Day O’Connor:

Well, what difference does that make if the jury didn’t have the test?

I don’t understand what it is we’re looking at here.

Jennifer J. Bercier:

–The Fifth Circuit… the jury did have the test used by the Fifth Circuit.

That was also the basis of the jury charge.

They were charged that if you find that he contributed to the mission of the vessel, he is a seaman.

So I think we’re trying to find out today if in fact that is the law.

William H. Rehnquist:

Well, Mrs. Bercier, are you suggesting that our previous cases say that no matter how little evidence would support a finding of the person being a seaman that’s nonetheless good enough if the jury finds it?

Jennifer J. Bercier:

No, sir, and in fact that’s what this Court addressed in Norton v. The Warner Company, wherein the Court stated that although we held in South Chicago v. Bassett that seaman status is almost always for the tryer fact.

In this case we must hold this seaman… this is a seaman as a matter of law.

William H. Rehnquist:

And presumably in some cases conversely that a person was not a seaman as a matter of law.

Jennifer J. Bercier:

Absolutely, Your Honor.

Byron R. White:

But in any event the jury is supposed to be accurately instructed about what the law is.

Jennifer J. Bercier:

Yes, sir.

So I think our question is what… were they in this case.

And I contend that they were.

I think that petitioner misreads the holding of this Court in Herb’s Welding v. Gray.

This Court has never suggested that workers engaged in offshore drilling on a floating or floatable structure were not seamen and/or were not engaged in maritime commerce.

In fact, this Court specifically distinguished between workers aboard fixed platforms and those aboard floatable structures and recognized the vessel status of the latter.

Herb’s Welding stands for the proposition that oil drilling is not traditional maritime activity when it is done on land, since by prior decision of this Court, the Court was required to treat the fixed platform as equivalent to an artificial island.

But in this case, the oil drilling and the services related… they, too, were done from a vessel.

The restrictive interpretation of maritime activity espoused by the petitioner was repudiated by this Court very recently in the case of Sisson v. Ruby, which declined to hold that only navigation can be characterized as substantially related to traditional maritime activity.

Anthony M. Kennedy:

I want to clarify one point.

Jennifer J. Bercier:

Yes, sir.

Anthony M. Kennedy:

You’re not contending that this fixed… that this platform, the drilling platform here, was anything other than a fixed platform, are you?

Jennifer J. Bercier:

That’s correct, Your Honor.

We are not contending that.

Anthony M. Kennedy:

And have we ruled that that cannot be a vessel?

Jennifer J. Bercier:

Yes, Your Honor, Rodrey v. Etna.

The Court held that that was a… considered the equivalent of an artificial island.

Petitioner also urges this Court to define the term seaman by reference to the Federal Employees Liability Act.

This approach is not new and was specifically rejected by this Court in 1952 in the case of Desper v. Starved Rock Ferry Company, wherein the Court stated,

“Seamen were given the rights of railway employees under the Jones Act, but the definition of seaman was never made dependent on the meaning of employee as used in legislation applicable to railroads. “

Our brief and that of the amicus discusses at great length prior decisions of this Court pertaining to seaman status including Warner, Bassett, Norton, Swansen, Senko, Gianfala, Grimes, Butler, and Tipton.

Rather than belabor the facts and holdings of each of these cases, we would simply point out that in Gianfala, Grimes, Senko, Tipton, and Butler, all of these workers would clearly have failed the Seventh Circuit test for seaman status as a matter of law.

None would have made it to the jury.

And this Court held in each of those cases that the facts presented a question for the tryer fact to decide as to seaman status.

I feel that to… in reversing the Fifth Circuit this Court would be required to overrule Gianfala, Grimes, Senko, Tipton, and Butler.

The decision–

Antonin Scalia:

If the only alternative is the Seventh Circuit’s approach, but as I understand your opponent, Mrs. Doyle or Mrs. Bercier, he is not arguing for that, because I think he concedes that bartenders and dance instructors are covered.

So therefore, he’s not really arguing for the Seventh Circuit’s approach.

Jennifer J. Bercier:

–The Seventh Circuit is the only alternative if you… if you want to make a bartender and a dance instructor seamen, then you have to make a painter a seaman, too, Your Honor, because the only rationale for making the bartender and the dance instructor seamen is that they contribute to the mission of the vessel.

So that would equally apply to Mr. Wilander in this case.

Byron R. White:

Do you think the Seventh Circuit would consider a bartender a seaman?

Jennifer J. Bercier:

No, sir.

Byron R. White:

No.

Jennifer J. Bercier:

I surely don’t.

It states specifically in their test that they must contribute to the transportation function of the vessel.

I feel that the Seventh Circuit rule is impossible to reconcile with the Norton case wherein Justice Douglas noted navigation is not limited to putting over the helm.

The fact that Norton’s duties were different from that of the… a more traditional mariner or seaman did not prevent this Court from holding he was a seaman as a matter of law and the Court explained as per Justice Douglas that the fact that his duties were different was because he was aboard a vessel with a different type of mission or different type of duties.

John Paul Stevens:

Yes, but isn’t it true that Justice Douglas did seem to think it necessary to say he contributed to the navigation function of the vessel?

Jennifer J. Bercier:

Yes, Your Honor, but he gave the term navigation such a broad meaning, because it said it’s not limited to steering–

John Paul Stevens:

But maybe–

Jennifer J. Bercier:

–it’s limited to all the other purposes of the vessel.

John Paul Stevens:

–Well, maybe so, but he did seem to think navigation was an ingredient of the test and you’re really arguing that it’s not.

John Paul Stevens:

Well, resume there at 1:00, Mrs. Bercier.

Jennifer J. Bercier:

Thank you, Your Honor.

William H. Rehnquist:

Mrs. Bercier, you may resume.

Jennifer J. Bercier:

Thank you, Your Honor, and may it please the Court:

As I left off I believe I was answering a question of yours, Mr. Justice Stevens, and I believe that question was how do I define aid in navigation?

I define aid in navigation as being the equal to aiding in the mission of the vessel, because this Court held in Norton v. Warner that navigation includes all of the purposes for which the vessel sails.

Petitioner’s reliance on the dissent in Senko is of no help to him.

In Senko the plaintiff was never aboard the vessel while it is in motion.

In Gianfala v. Texas Company, there was a specific finding of fact in the lower court that the worker had no transportation-related duties, yet this Court held that his question… his status was a question of fact for the jury.

Antonin Scalia:

Would it be more helpful to everybody on that theory if we dropped the reference to navigation entirely?

Jennifer J. Bercier:

Absolutely, Your Honor, and that’s what the Fifth Circuit has done.

The inquiry in the Fifth Circuit is not does he aid in navigation, but does he contribute to the mission of the vessel, its operation, its welfare, and its maintenance.

And it’s been a workable rule.

I would refer the Court before I sit down to the statement of Justice Cardosa in this Court’s case of Warner v. Goltra.

Justice Cardosa, holding that the master of a vessel was also included within the coverage of the Jones Act, noted that the term seaman must be defined in light of the mischief to be corrected and the end to be attained.

The new measure of recovery under the Jones Act, according to Cardosa, should be the same for everyone aboard the vessel.

Harry A. Blackmun:

Out of curiosity, what kind of condition is Mr. Wilander in now?

Jennifer J. Bercier:

He has some permanent memory loss, Your Honor.

He sustained a head injury, has a steel plate in his head.

Harry A. Blackmun:

Is he working at all?

Jennifer J. Bercier:

Sir?

Harry A. Blackmun:

Is he working at all?

Jennifer J. Bercier:

He’s working in sales, no longer going to work offshore where the money was.

This Court stated in 1958 in Kernan v. American Dredging Company that by passing the Jones Act, Congress did not intend to create a static remedy, but one which would respond to meet the changing conditions and the commensurate responsibility of the maritime industry toward its vessel-based workers.

Judge Wisdom noted in Robison that the absence of any legislative restrictions in the act enabled the law to develop naturally along with the development of special-purpose vessels.

The very real need for uniformity in the maritime law, with which we absolutely agree, mandates a rule which will be workable and which will implement the intent of Congress in every jurisdiction of this Nation, not just ones that have only river traffic.

The Seventh Circuit rule allows workers to step in and out of coverage depending on whether they are performing transportation-related duties.

It would inordinately complicate the typical ship owner’s necessary insurance arrangements and completely ignore the fact that all aboard the vessel are exposed to the same maritime perils.

There is now a maritime negligence cause of action.

There is now coverage under the Jones Act for workers aboard these vessels.

Jennifer J. Bercier:

The only acceptable conclusion is that seaman status should be accorded to every employee, who like John Wilander contributes to the economic mission of the vessel.

Without John Wilander and his paint crew, the Gates Tide never turned a prop, because it had no mission at all.

Working a shift of 90 straight days on, all of it over water, 80 percent of the time spent aboard a vessel, John Wilander was the quintessential seaman of the modern age.

I’d be happy to address any questions the Court might have in my time remaining.

William H. Rehnquist:

Thank you, Mrs. Bercier.

Jennifer J. Bercier:

Thank you, Your Honor.

William H. Rehnquist:

Mr. Doyle, do you have rebuttal?

James E. Doyle:

I do.

May it please the Court:

I think it is very important for the Court to understand that Mr. Wilander was not in this case left without a remedy and I would specifically refer the Court to page 33 of the joint appendix at which the clause in the contract dealing with his remedy is reproduced.

He had at a minimum the Louisiana worker’s compensation law to apply to any injury that would befall him in the service of his employer.

I would also address Justice O’Connor’s question earlier as to whether the status determination is a mixed question of law and fact, it is.

This has been recognized, not by this Court, but by the Fifth Circuit and followed in many others.

The citation on the case is Crador, C-r-a-d-o-r, v. The Louisiana Department of Highways, 625 Fed. 2nd 12.27.

And Justice Souter, turning to your comment respecting navigation and dropping that requirement entirely, it points out the problem which I think results in the Robison test and in the Fifth Circuit and in respondent’s argument.

And that problem is if you drop a bright line requirement, you’re left with no logical stopping point.

David H. Souter:

But haven’t you dropped the bright line requirement once you start including bartenders and dance instructors?

I think it seems to me that my question is one about candor rather than a change in the rule.

James E. Doyle:

It is.

It very much is, Justice Souter.

But the distinction between the bartender and the dance instructor and Mr. Wilander is that they indisputably support the vessel in its use as a vessel.

They sign on the articles as seamen.

They sail as members of the crew.

Mr. Wilander didn’t support this vessel.

He was supported by it.

He used this vessel as a tool to perform his work and that is the distinction which this Court needs to address.

Otherwise, as one commentator said, three men in a tub would fit the test for status and a convincing argument could be made to include Jonah and the whale.

There’s just no logical end to it.

In the Fifth Circuit in 1982, four judges on a panel of 13 felt that an en banc rehearing should be granted so that the court could have an opportunity to determine whether a helicopter was a vessel and whether its pilot was a member of its crew.

And quoted from the decision of the court in the Fifth Circuit and other cases and holding that courts of appeals and district courts have extended Robison to strange sorts of things to find them to be vessels and the injured person to be a seaman.

James E. Doyle:

And they specifically cited floating oil-drilling platforms, which when they do their work are invariably hard aground and not capable of movement at all.

Antonin Scalia:

But those instances go to what’s a vessel, not what’s a seaman.

You don’t doubt that we have a vessel here?

James E. Doyle:

Well, I think the inquiry is inextricably tied together.

In this case, we’re dealing with a 185-foot crew boat, true.

But in other cases that have dealt with the same theoretical premise, Justice Scalia, a crane barge, which is a vessel under title I, section 3, a quarterboat barge, which is a vessel under title I, section 3, have been held not to meet the test for status, one case from the Fourth Circuit, one from the Fifth.

So there are circumstances in which a traditional vessel is used for reasons other than the fact that it is a vessel.

David H. Souter:

But aren’t you still arguing that if in effect we get soft in defining who is a seaman, we’re going to be asked to be soft in defining what is a vessel, and they’re really 2 separate inquiries.

James E. Doyle:

Well, I think that’s the result which has now been reached.

I think that if there’s an argument that can be made by principled jurists that a helicopter is a vessel, the rule is too lax in the Fifth Circuit and it needs to be shored up.

And the navigation requirement applies equally to the vessel as well as the men that are serving upon it.

John Paul Stevens:

Of course, if the helicopter were a vessel the pilot would clearly be a seaman.

James E. Doyle:

Well, that’s right, because he would be serving the mission of the helicopter.

But the court ruled that he–

John Paul Stevens:

And vice versa I assume?

James E. Doyle:

–And vice versa.

But not in the same character, of course, as Mr. Wilander because the helicopter would then also have a transportation function.

Antonin Scalia:

If I understand your point correctly, Mr. Doyle, it is that you don’t go as far as the Seventh Circuit.

But you say that to be a seaman you have to be furthering the purpose of the vessel as a vessel.

James E. Doyle:

Yes, sir.

Antonin Scalia:

And your assertion here is that this boat was not being used as a vessel when it just tied alongside to do painting.

James E. Doyle:

No, sir, not… it might be a fine distinction, Justice Scalia, but it is not that the boat was not being used as a vessel.

It’s that the function that Mr. Wilander served in reference to the vessel had nothing to do with its use as a vessel.

Byron R. White:

Weren’t there… wasn’t there machinery on the vessel that aided in the painting?

James E. Doyle:

It was carried from platform to platform.

Yes, sir, there was.

William H. Rehnquist:

Didn’t it remain on the vessel?

James E. Doyle:

It remained on the vessel during the time that the painting activity was conducted, yes, sir.

Byron R. White:

So it was a painting… so it was a vessel that was used in the painting of these platforms.

James E. Doyle:

It was–

Byron R. White:

That was its mission.

James E. Doyle:

–But in that sense, Justice White, the vessel performed no additional function other than the transport of the men and the equipment from one point to the other.

It served–

Byron R. White:

Although you know that the vessel had the equipment on it and it stayed on it.

James E. Doyle:

–Yes, sir, and once it arrived it’s no different from the crane barge which is a vessel for some purposes but has been specifically held not only in the Fourth Circuit but the Fifth, not to be a vessel for Jones Act purposes.

David H. Souter:

But what you’re really saying I think then is that vessel has to mean or has to be defined in terms of ways common to all possible vessels.

Isn’t that what you’re saying?

James E. Doyle:

Well, I’m saying that the distinction that’s drawn is between the statutory definition of a vessel which covers a multitude of appliances and the use to which that appliance is put once it goes to work.

David H. Souter:

All right, so there’s a distinction between vessel as such and vessel with a specific purpose in a given case.

James E. Doyle:

Jones Act, yes, sir.

David H. Souter:

All right, so if your criterion is going to be what is common to all vessels as such, how can you consistently concede that the bartenders and the dance instructors are seamen?

James E. Doyle:

Again, because of their connection to the vessel.

I said earlier and I’ll reemphasize, the connection is not only to be determined in light of the navigational function.

It can be found for other reasons.

David H. Souter:

No, but aren’t you now saying that once you’ve got a vessel, anyone who is permanently connected with it, is a seaman?

James E. Doyle:

I think in many cases that is the decision made–

David H. Souter:

Why not in this case?

James E. Doyle:

–Because he’s not permanently attached to the vessel and one indicia of the fact–

David H. Souter:

He was during the period that he was assigned to use it for the painting duties.

James E. Doyle:

–Well, but during that time–

David H. Souter:

I mean the bartender is not attached to it for life.

He’s attached to it for the voyage and this man was attached to it for the length of this boat’s voyage which was to the platform while the work went on.

James E. Doyle:

–I think, Justice Souter, that with respect that’s not consistent with the way that the law has been applied.

What I’ve tried to do in making a distinction and saying that bartenders and cooks are covered and people such as Mr. Wilander are not is to rely on this Court’s jurisprudence, which I think clearly makes that distinction and I think Norton v. Warner Company and Senko are two of the ones that illustrate it most broadly, because they were only seamen because they would have a navigational function with respect to that vessel when it was put in transit, Mr Wilander never had it.

So he never achieved status in the first place under that argument.

And I might point out that there’s nothing that is inherently different about that type of proposition than you find in the maritime employment field generally.

You can have an offloading operation performed of a vessel on a dock and have three different types of coverage that apply to the workers.

The checkers are going to be covered under State compensation.

The longshoremen under the LHWCA and the seamen under the Jones Act.

All exposed to the same risks.

James E. Doyle:

All doing the same job.

But their duties are defined in terms of their employment responsibilities.

Mr. Wilander’s employment responsibility was to paint the platforms.

The jury obviously agreed with that, because they said he was permanently attached to the platform as well as to the vessel.

On the point about the review, I think that it should be pointed out, Justice O’Connor, that the Fifth Circuit specifically ruled that under the Seventh Circuit test, Mr. Wilander would not have submitted sufficient evidence to go to the jury on status and under Robison he did.

I think that ends the inquiry.

And further with respect to the question–

William H. Rehnquist:

Your time has expired, Mr. Doyle.

The case is submitted.

James E. Doyle:

–Thank you, Mr. Chief Justice.