Three Men in a Tub - What Constitutes a Vessel?

April 2006

The Jones Act was enacted as federal legislation in 1920¹ to provide a remedy to sailors for injuries or death resulting from the negligence of an owner, a master, or a fellow sailor of a vessel. The Act defines the legal rights of seamen who are injured or killed in the course of maritime service. Prior to its creation, seamen did not enjoy these rights, largely because antiquated legislation tended to protect the employers. The Jones Act was devised and intended to break down such barriers and take in to account the special risks taken by sailors.

Interpreting the Jones Act has long been a difficult challenge for the courts in the US, particularly in relation to the two main aspects of the Act: definition of the term seamen and what constitutes a vessel. These definitions are critical as if a claimant can bring himself within the ambit of the Act he need satisfy only a 'feather weight burden of proof' in order to raise a claim against his employer. The decision in Holmes v Atlantic Sounding Company²addresses the question of what constitutes a vessel. This question is essential in determining a seaman's right to pursue damages.

Following the Supreme Court's 2005 decision in Stewart v. Dutra Construction Co³ that the dredge "Super Scoop" was a vessel for purposes of the Jones Act, admiralty practitioners and scholars wondered what effect, if any, the holding would have on the various circuit courts' "vessel" jurisprudence.

It was soon time for this issue to be raised and tested in Holmes. Having previously decided in earlier cases⁴ that a quartersbarge was not a vessel, the majority held again that the quartersbarge in Holmes was not a vessel because it (1) was not designed for navigation (2) relied on tugs to move it (3) had no means of self propulsion (4) had never been registered or inspected by the Coast Guard and (5) never transported or was capable of transporting anything. The majority concluded that the quartersbarge was not a vessel as it did not serve a "waterborne transportation function".

The unexpected occurred earlier this year when the Appeal Court reversed direction issuing a unanimous decision that the quartersbarge in Holmes is a vessel. While retaining the majority of the earlier decision, the court made a fundamental change; it defined a vessel as "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water". Drawing the conclusion that since the quartersbarge was "practically capable" of transporting equipment (and actually does transport the equipment present in the quarters like bunks, etc.) the quartersbarge is a vessel for the purposes of the Jones Act. Finally, in order to distinguish this from earlier cases, the court relied on the fact that in Gremillion, the quartersbarge was partially sunk into the shore side mud bank.

This decision has an impact on crewmembers and owners alike; Many plaintiff attorneys will now undoubtedly look to the court's "practically capable of transport" language to seek Jones Act status for their client. With the Jones Act burden of proof for negligence much lower than in other negligence claims, owners may now find themselves facing not only a higher volume of claims but also claims which could be more costly. This is also a factor to be borne in when arranging insurance cover for vessels which might now fall within the Jones Act definition.

In the 1982 decision of Burks v Am River Transport Co.⁵ the court posited that "three men in a tub… would fit within our definition [of a Jones Act seaman], and one could probably make a convincing case for Jonah inside the whale". Following the decision in Holmes it would seem that the court in Burks was perhaps not that far from the truth.

 

With thanks to James T Brown of Legge Farrow Kimmit McGrath & Brown, Houston, for his assistance in preparing this article.

1. 46 U.S.C.A. § 688 

2. CA No. 04-30732, 2006 WL 133537 (5th Cir. Jan. 19, 2006) 

3. 343 F.3d 10 (First Cir. 2003) 

4. Gremillion v. Gulf Coast Catering 904 F.2d 290, 293 (5th Cir. 1990) 

5. 679 F.2d 69, 75 (5th Cir. 1982)