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MIETLA v. WARNER CO.

January 22, 1975

WALTER MIETLA
v.
WARNER COMPANY



The opinion of the court was delivered by: LORD, III

 JOSEPH S. LORD, III, CH. J.

 Plaintiff, employed by defendant as a "barge attendant," brought this action under the Jones Act, 46 U.S.C. § 688 et seq., to recover for injuries suffered in the course of employment. Defendant has moved for summary judgment, claiming that plaintiff was not a "seaman" within the meaning of the Jones Act at the time of his accident. We shall deny the motion.

 The Jones Act provides that "any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury * * *." 46 U.S.C. § 688. Early decisions of the Supreme Court gave an expansive interpretation to the term "seaman." See, e.g., International Stevedoring Co. v. Haverty, 272 U.S. 50, 71 L. Ed. 157, 47 S. Ct. 19 (1926). In response, Congress passed the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., which gives a right of recovery for all maritime workers except "a master or member of a crew of any vessel." 33 U.S.C. § 903. Since the remedies provided by this Act and the Jones Act are mutually exclusive, the Supreme Court has held that Congress, in passing the Longshoremen's and Harbor Workers' Compensation Act, limited application of the term "seaman" in the Jones Act to "a master or member of a crew of any vessel." Swanson v. Marra Bros., 328 U.S. 1, 90 L. Ed. 1045, 66 S. Ct. 869 (1946).

 It is well established that the question of seaman's status is one of fact and must be left to the fact-finder (here, the jury) if there is any evidence to support a finding that a worker is a member of a crew of a vessel. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 84 L. Ed. 732, 60 S. Ct. 544 (1940). See also Butler v. Whiteman, 356 U.S. 271, 2 L. Ed. 2d 754, 78 S. Ct. 734 (1958); Gianfala v. Texas Co., 350 U.S. 879, 100 L. Ed. 775, 76 S. Ct. 141, reversing 222 F.2d 382 (C.A. 5, 1955). Since we must, in considering a motion for summary judgment, construe any disputed factual assertions in favor of the respondent, the question becomes whether plaintiff can produce any evidence which would entitle a jury to conclude that he was a member of a crew of a vessel.

 The parties have agreed that application of a three-part test determines the issue of seaman's status:

 
1. There must be a vessel in navigation.
 
2. Plaintiff must be employed on the vessel primarily to aid in navigation.
 
3. Plaintiff must have a more or less permanent connection with the vessel.

 See Zientek v. Reading Co., 220 F.2d 183 (C.A. 3, 1955); Offshore Co. v. Robison, 266 F.2d 769 (C.A. 5, 1959).

 Plaintiff's amended complaint alleges that he was a seaman with respect to the barges which tied up to Pier 55 where he worked, as well as with respect to barge No. 4, a permanent floating dock connecting Pier 55 and the other barges. Plaintiff admits that barge No. 4 was not a vessel in navigation, and defendant, for the purposes of this motion, concedes that the other barges were. The controversy is thus narrowed to the issue of whether plaintiff was employed in aid of navigation of these barges and had a more or less permanent connection with them.

 
"1. Keep loaded barges free of water.
 
"2. Check towing gear and keep in repair when possible, which includes lines, cables, chains, steamboat ratchets and ...

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