Howard, John v. Southern IL Riverboa , 364 F.3d 854 ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3818 & 02-3819
JOHN HOWARD, et al.,
Plaintiffs-Appellees,
v.
SOUTHERN ILLINOIS RIVERBOAT CASINO CRUISES, INC.,
doing business as PLAYERS ISLAND CASINO,
Defendant, Third-Party Plaintiff-Appellant,
v.
TRIANGLE ENTERPRISES, INC., doing business as
TRIANGLE INSULATION AND SHEET METAL COMPANY,
Third-Party Defendant-Appellant.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 00 C 4321 & 01 C 4299—G. Patrick Murphy, Chief Judge.
____________
ARGUED MAY 20, 2003—DECIDED APRIL 9, 2004
____________
Before COFFEY, KANNE, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. This controversy arose
when 46 individual plaintiffs brought negligence claims
2 Nos. 02-3818 & 02-3819
under the Jones Act, 46 U.S.C. app. § 688(a), for injuries
they allegedly sustained while working aboard a riverboat
casino, the M/V Players II (Players II). Players II was
permanently moored to the dock at all times pertinent to
their claims. The question we must decide is whether this
fact is enough to defeat any claim under the Jones Act,
which creates a federal negligence remedy for seamen. The
district court thought not, but it certified under 28 U.S.C.
§ 1292(b) the following question for interlocutory review:
whether Players II was a vessel “in navigation” covered by
the Jones Act, such that the plaintiffs employed on board
were Jones Act “seamen.” We agreed to hear the appeal,
and we now reverse.
I
Beginning in 1995, defendant Players Island Casino
(Players) operated a gaming casino on Players II, a river-
boat casino located on the Ohio River near Metropolis,
Illinois. At that time under Illinois law, gaming casinos
could be operated only on licensed self-propelled excursion
boats that cruised along navigable streams. In 1999, the
Illinois General Assembly amended the Illinois Riverboat
Gambling Act to allow gaming on “permanently moored”
barges. 230 ILL. COMP. STAT. 10/4(d) & 10/3(c). Soon there-
after, Players II ceased cruising along the Ohio River and
(with minor exceptions described below) was permanently
moored to the dock. According to an affidavit by the vice
president of operations and marketing, Jeff Pfeiffer, Players
had no intention of having Players II cruise again as part of
casino operations.
Plaintiffs claim that they sustained injuries when they
were exposed to chemicals while working aboard Players II
on July 28 and 29, 2000. It is undisputed that at the time
of the plaintiffs’ alleged injuries, the casino had been
docked for more than a year and was not in the business of
Nos. 02-3818 & 02-3819 3
transporting passengers. It was connected to land-based
utilities, including electricity, telephone, water, and sewer.
Nevertheless, it could be disconnected from the dock in
about 15 to 20 minutes. Moreover, Players II was licensed
and classified as a passenger vessel with the U.S. Coast
Guard and was equipped with firefighting and safety
equipment. It also employed a captain and crew qualified to
move the casino if necessary. After the 1999 change
in Illinois law allowing dockside gaming, however, Players
II never left its moorings except in connection with pro-
pulsion tests required by the Coast Guard. During the pro-
pulsion tests (which took about 45 minutes to complete),
Players II would move out into the river about 100 feet and
then return to the dock. By the time of plaintiffs’ alleged
injuries, the Coast Guard required the propulsion test only
once a year. In September 2001, Players removed Players II
from service as a casino. Some time later, it sailed under its
own power to Texas to await sale.
Defendant Players and third-party defendant Triangle
Insulation and Sheet Metal Company (Triangle) filed mo-
tions for summary judgment in district court, seeking dis-
missal of the plaintiffs’ claims on the grounds that Players
II was not a vessel “in navigation” and thus the plaintiffs
were not “seamen” protected by the statute. The district
court denied Players’ and Triangle’s motions for summary
judgment and certified this issue for interlocutory appeal
under 28 U.S.C. § 1292(b).
II
The Jones Act creates a federal negligence claim for any
“seaman” injured in the course of employment. 46 U.S.C.
app. § 688(a). Congress enacted the Jones Act to provide
seamen with heightened legal protection because of their
exposure to “perils of the sea.” Chandris, Inc. v. Latsis, 515
U.S. 347, 368 (1995). Oddly enough, the term “seaman” is
4 Nos. 02-3818 & 02-3819
not defined in the statute; instead, it has been up to the
courts to define that central term. The Supreme Court has
established two requirements for seaman status: (1) the
employee’s duties must contribute to the function of the
vessel or to the accomplishment of its mission; and (2) the
employee must have a “substantial employment-related
connection to a vessel in navigation.” Id. at 373 (emphasis
in original); McDermott Int’l, Inc. v. Wilander, 498 U.S. 337,
354-55 (1991). As the Supreme Court noted in Chandris:
The fundamental purpose of this substantial connection
requirement is to give full effect to the remedial scheme
created by Congress and to separate the sea-based
maritime employees who are entitled to Jones Act
protection from those land-based workers who have
only a transitory or sporadic connection to a vessel in
navigation, and therefore whose employment does not
regularly expose them to the perils of the sea.
515 U.S. at 369.
The only question before us today is whether an in-
definitely moored vessel that has the ready capability of
cruising, but that is not used or intended to be used for the
purpose of moving or transporting, qualifies as a vessel in
navigation. To be precise, it is clear that Players II is a
vessel; what is contested is whether that vessel is “in navi-
gation.” We are aware that the Supreme Court has granted
certiorari in Stewart v. Dutra Construction Co., 2004 WL
323176 (U.S. Feb. 23, 2004), which presents the question
whether a special-purpose dredge is a Jones Act “vessel.”
See Pet. for Writ. of Cert., 2003 WL 22926387 (U.S. Dec. 3,
2003) (No. 03-814). That question, however, is distinct from
the question whether a conventional sea-faring craft is “in
navigation,” as opposed to “out of navigation” or “withdrawn
from navigation.” Chandris, 515 U.S. at 373-74. Because
the latter question is the one presented in this case, we see
no need to postpone our decision for the resolution of
Nos. 02-3818 & 02-3819 5
Stewart. The navigation issue, the Court held in Chandris,
is normally one of fact reserved for the jury. Id. at 373. As
is generally true, however, it is appropriate to remove that
issue from the jury if there is no genuine issue of material
fact and the law will reasonably support only one conclu-
sion. Id.The district court concluded that Players II’s indefinite
mooring did not compel the finding that it was not in navi-
gation. Giving little weight to Players II’s purpose or actual
use, the district court focused instead on the fact that
Players II was ready and able to cruise at 15-20 minutes’
notice. It found this case to be distinguishable from Pavone
v. Mississippi Amusement Corporation, 52 F.3d 560 (5th
Cir. 1995) (analyzing same issue for floating dockside casino
not ready and able to cruise, and holding that the vessel
was not in navigation), and Chase v. Louisiana Riverboat
Gaming Partnership, 709 So. 2d 904 (La. App. 1998) (same),
because Players II was ready and able to cruise. Citing
language in Johnson v. John F. Beasley Construction
Company, 742 F.2d 1054 (7th Cir. 1984), the district court
also found support for Players II’s “in navigation” status
because the vessel was literally engaged as an instrument
of commerce as it floated on the Ohio River, obviously a
navigable body of water. Id. at 1063. Finally, the district
court noted that it was only by virtue of its status as a
vessel that Players II could operate as a gambling casino.
See 230 ILL. COMP. STAT. 10/3-10/4.
While we appreciate the district court’s care in consi-
dering this question, in the end we are persuaded that
Chandris requires a more pragmatic approach than the one
the court used. As we recognized in Johnson, in order for a
vessel to satisfy the navigation requirement, the purpose of
the vessel “must to some reasonable degree be
the transportation of passengers, cargo, or equipment
from place to place across navigable waters.” Johnson, 742
F.2d at 1063 (internal citations and quotations omitted).
6 Nos. 02-3818 & 02-3819
Moreover, the analysis in Pavone and Chase did not hinge
upon whether the vessel was ready and able to cruise, but
looked to the vessel’s purpose and actual use (whether it
was used to move or transport anything). Pavone, 52 F.3d
at 570; Chase, 709 So. 2d at 910. Finally, whether a ship is
a vessel for state law gambling purposes, while perhaps one
factor to take into account, does not govern the question
whether it is a vessel in navigation for purposes of the
Jones Act.
Unlike the vessels in navigation that have been the sub-
ject of decisions of this court and the Supreme Court, the
purpose of Players II was not to move or transport cargo or
people, but merely to provide a legal venue under Illinois
law for gambling. Recognizing that indefinitely moored
dockside casinos are not the kind of vessels that the Jones
Act addresses is consistent with the statute’s purpose of
enhancing legal protections for seamen “regularly” exposed
to the “perils of the sea.” See Chandris, 515 U.S. at 369. We
hinted at this conclusion in our earlier decision in Weaver
v. Hollywood Casino-Aurora, Inc., where we remarked that
“[i]f the casino were indefinitely moored (as the record
suggests it now is), its status as a vessel in navigation
would be doubtful.” 255 F.3d 379, 387 (7th Cir. 2001). Today
we hold that an indefinitely moored dockside casino with no
transportation function or purpose is not a vessel “in
navigation.” See Martin v. Boyd Gaming Corp., 252
F.Supp.2d 321, 323 (E.D. La. 2003); Grobe v. Hollywood
Casino-Aurora, Inc., 759 N.E.2d 154, 159-60 (Ill. App. Ct.
2001); see also Johnson, 742 F.2d at 1063 (“If the
waterborne structure serves no transportation function, of
course, it can have no group performing navigational
functions, and hence no maritime ‘crew.’ ”); Tonnesen v.
Yonkers Contracting Co., Inc., 82 F.3d 30, 36 (2d Cir. 1996)
(ignoring original purpose for which the floating structure
was constructed and focusing on whether the floating
structure was primarily used for transportation purposes
Nos. 02-3818 & 02-3819 7
during a reasonable period of time immediately preceding
the accident). In applying this test, courts will need to
examine, among other factors, the current use of the vessel
and the question “whether the owner intends to move the
structure on a regular basis and the length of time the
structure has remained stationary.” Grobe, 759 N.E.2d at
159.
In this case, the undisputed facts doom the plaintiffs’
claims. Players II was an indefinitely moored dockside
casino at the time of the alleged injuries and was never
moved except to be tested. As a matter of law, we conclude
that it was not “in navigation” for purposes of the Jones Act,
and thus that these plaintiffs were not within the class
protected by that statute.
III
The order of the district court denying summary judgment
to Players and Triangle is REVERSED, and the case is
REMANDED for entry of judgment in their favor.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-9-04