Dize v. Association of Maryland Pilots

McDonald, j. Maritime law has long recognized the “special hazards and disadvantages to which they who go down to sea in ships are subjected,” especially exposure to “the perils of the sea ... with little opportunity to avoid those dangers or to discover and protect themselves from them.” 1 When maritime workers at sea suffer sickness or injury, they are entirely at the mercy of their employer, and it is often said that they are “wards of admiralty.” 2 Federal law provides certain rights and protections to compensate for those risks. One such measure is the Jones Act, 46 U.S.C. § 30104 , which provides a seaman with a cause of action against the seaman’s employer for injuries incurred within the scope of employment. ¹⁵³ Who is a “seaman”? This is a recurring question in the case law under the Jones Act.

The Supreme Court offered guidance in three decisions in the 1990s, but subsequent lower court decisions have resulted in a tempest of varying, and often conflicting, interpretations. 3 Although as a state court we do not speak authoritatively on this issue, it is our task in this case to discern what we can from these decisions. 4 In the complaint under the Jones Act that commenced this case, William S. Dize 5 alleged that he was injured as a result of the negligence by his employer, Respondent Association of Maryland Pilots (the “Association”). Whether that claim was properly made under the Jones Act depends on whether Mr. Dize was a “seaman” at the time of the alleged negligence. To distinguish seamen from land-based workers, the Supreme Court has adopted a “rule of thumb” that a seaman must ordinarily have spent at least 30 percent of work time in ¹⁵⁴ service of a vessel in navigation. We hold, consistent with the purpose of the Jones Act and guidance of the Supreme Court, that the time Mr. Dize spent maintaining vessels that were dockside or ashore is not to be considered and, accordingly, that the lower courts correctly concluded that he was not a seaman.

Background Remedies for Seamen Remedies for employment-related injuries of seamen are provided under federal admiralty law rather than state worker compensation schemes. Southern Pac. Co. v. Jensen, 244 U.S. 205, 218 , 37 S.Ct. 524 , 61 L.Ed. 1086 (1917). Two of those remedies have long existed under general maritime law, but are limited in scope.

A third, broader, remedy has been created by statute. Under general maritime law at the beginning of the 20th century, a maritime worker had two potential claims for injuries incurred during employment in service of a vessel: seaworthiness and “maintenance and cure.” A ship owner has an “absolute, non-delegable” duty to a seaman to provide a seaworthy vessel; liability for an unseaworthy vessel attaches regardless of fault. Chisholm v. UHP Projects, 205 F.3d 731 , 734 (4th Cir.2000). The warranty of seaworthiness applies only to vessels that are “in navigation.” Roper v. United States, 368 U.S. 20 , 82 S.Ct. 5 , 7 L.Ed.2d 1 (1961). “A claim for maintenance and cure relates to the vessel owner’s obligation to provide food,' lodging, and medical' services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 , 121 S.Ct. 993 , 148 L.Ed.2d 931 (2001).

Neither “seaworthiness” nor “maintenance and cure” provided a seaman with a cause of action for negligence of a ship owner. The Osceola, 189 U.S. 158, 175 , 23 S.Ct. 483 , 47 ¹⁵⁵ L.Ed. 760 (1903). 6 Congress created such a cause of action when it passed the Jones Act in 1920. That statute reads, in pertinent part: A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right to a trial by jury, against the employer. 46 U.S.C. § 30104 . To prevail on a negligence claim under the Jones Act, a seaman must show: “(1) that he is a seaman under the Act; (2) that he suffered injury in the course of his employment; (3) that his employer was negligent; and (4) that his employer’s negligence caused his injury at least in part.” Martin v. Harris, 560 F.3d 210, 216 (4th Cir.2009). 7 The term “seaman” is not defined in the Jones Act.

But, as in many cases under the Jones Act, the interpretation of that term is key to the decision of this case. Mr. Dize’s Employment Mr. Dize initially worked for the Association as a launch boat operator at the Solomons Island Transfer Station in Solomons, Maryland, beginning in the 1980s. In that capacity, he transported pilots to and from large commercial ships traveling on the Chesapeake Bay — a duty that he continued to perform after he was promoted to assistant station manager in 1997. As assistant station manager, Mr. Dize worked every other week but, during the weeks he was on duty, he was on-call all day every day.

As will become apparent, the allocation ¹⁵⁶ of his work time among the various duties of assistant station manager is significant for determining whether he was a seaman at the time of the alleged negligence in 2007. During the five-year period prior to his injury, Mr. Dize spent somewhat less than 20 percent of his time operating launches. 8 He also did maintenance work on the launches, both in the water and while the boats were undergoing overhaul and refits in dry dock. In deposition testimony, Mr. Dize estimated that, while the launches were tied up at the dock, he spent between 42 and 50 percent of his time on maintenance tasks such as painting; sanding; changing propellers, rotors, shafts, and rub rails; replacing zinc anodes; cleaning the boat interiors; and fueling. Relying on its records, the Association also estimated that between 3 and 5 percent of Mr. Dize’s time was spent on overhaul and refits while the boats were out of the water.

Adding up those estimates, Mr. Dize calculated that well over 60 percent of his time was spent operating, or performing maintenance on, launch boats. Mr. Dize also performed general maintenance on station buildings and property, ordered work supplies and groceries, unloaded trucks, installed rugs, mowed the lawn, and cleaned the docks. In January 2008, Mr. Dize was diagnosed with silicosis. He thereafter suffered increasing breathing difficulties, required supplemental oxygen to live, and eventually died from his illness in September 2012.

Negligence Action under the Jones Act On May 22, 2008, Mr. Dize sued the Association in the Circuit Court for Baltimore City, pursuant to the Jones Act, alleging negligence in regard to injuries he suffered from ¹⁵⁷ exposure to free silica during a sandblasting project. 9 The complaint alleged that, as part of his duties in June 2007, Mr. Dize sandblasted paint off the bottom of an Association boat in dry dock, using coal slag abrasive that contained free silica. It further alleged that the Association did not perform adequate occupational safety testing, as required by federal and State work safety standards, to determine whether Mr. Dize was fit to participate in sandblasting or should have worn a respirator mask while doing so. Because he had previously suffered from lung disease, the complaint alleged, he likely would have been excluded from the work as a result of the test. In January 2010, both Mr. Dize and the Association filed motions for summary judgment. 10 The Association argued that Mr. Dize was not a seaman for purposes of the Jones Act and therefore could not maintain a negligence claim.

On February 25, 2010, the Circuit Court granted the Association’s motion for summary judgment on the Jones Act claim on the basis that Mr. Dize was not a seaman at the time of his injury. 11 In doing so, the court concluded that Mr. Dize had not spent 30 percent of his work time in service of vessels in navigation, as required by a “rule of thumb” adopted by the ¹⁵⁸ Supreme Court to decide seaman status for Jones Act cases. Mr. Dize appealed. On March 8, 2012, the Court of Special Appeals, in an unreported opinion, affirmed the Circuit Court. At the request of the Association, the court reissued its decision as a reported opinion on May 31, 2012.

See Dize v. Ass’n of Md. Pilots, 205 Md.App. 176 , 44 A.3d 1033 (2012). We granted certiorari to resolve whether, in determining Mr. Dize’s status for purposes of the Jones Act, work time spent maintaining vessels that are moored, dockside, or ashore is to be counted along with time spent at sea. Discussion Standard Of Review A Circuit Court may grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2 — 501(f)- With specific reference to the Jones Act, the issue of seaman status is a mixed question of law and fact, for which summary judgment is appropriate “where the facts and law reasonably support only one conclusion.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 , 117 S.Ct. 1535 , 137 L.Ed.2d 800 (1997) (citations omitted).

Our role is to review whether the Circuit Court’s legal conclusions were correct without according any special deference to that court. D’Aoust v. Diamond, 424 Md. 549, 574 , 36 A.3d 941 (2012). Seaman Status under the Jones Act As indicated above, the Jones Act does not itself define the term “seaman.” Courts have defined the term affirmatively by looking to the meaning of the term in the general maritime law that preceded the Jones Act and negatively by distinguishing seamen for purposes of the Jones Act from land-based maritime workers covered by the less generous and later-enacted Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The key factors that are currently applied by the courts, including a numerical rule of thumb, derive from three Supreme Court decisions during the 1990s. ¹⁵⁹ Relation to Seaman under General Maritime Law When the Supreme Court upheld the constitutionality of the Jones Act a few years after its passage, it appeared to equate seaman status under the statute to that under general maritime law.

Panama R. Co. v. Johnson, 264 U.S. 375, 388-89 , 44 S.Ct. 391 , 68 L.Ed. 748 (1924). Shortly thereafter, however, the Court, stating that “words are flexible,” held that the statute also applied to an injured longshoreman even though a longshoreman did not fit the common understanding of a “seaman.” Int'l Stevedoring Co. v. Haverty, 272 U.S. 50, 52 , 47 S.Ct. 19 , 71 L.Ed. 157 (1926) (stevedore injured while storing freight in ship hold covered by the Act). Relation to Workers Covered by LHWCA In 1927 — one year after Haverty — Congress enacted the LHWCA. That statute provides compensation and other remedies for land-based maritime employees who suffer injuries while working on navigable waters “including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.” 33 U.S.C. § 903 (a).

The LHWCA specifically omitted from its coverage “a master or member of a crew of any vessel.” 33 U.S.C. § 902 (3)(G). The Supreme Court held that this exclusion is synonymous with “seaman” under the Jones Act and that the LHWCA “confine[d] the benefits of the Jones Act to the members of the crew of a vessel.” Swanson v. Marra Bros., 328 U.S. 1, 7 , 66 S.Ct. 869 , 90 L.Ed. 1045 (1946). As construed in Swanson , the LHWCA thus had the effect of narrowing Haverty’s broad construction of the term “seaman” under the Jones Act. Efforts to Distinguish Seamen from Land-Based Workers In the 12 years following Swanson , the Court continued to provide guidance on the definition of “seaman,” although its holdings were not easily condensed into an understandable standard.

In Desper v. Starved Rock Ferry Co., 342 U.S. 187 , 72 S.Ct. 216 , 96 L.Ed. 205 (1952), the Court held that a pilot of sightseeing vessels who was killed during off-season work on a ¹⁶⁰ ship that had been taken out of the water was not a seaman in those circumstances. The Court found persuasive that “there was no vessel engaged in navigation” and that the activity that caused the injury was not typically a duty of a seaman. 342 U.S. at 190 , 72 S.Ct. 216 . Nevertheless, five years later, in determining whether a handyman from an anchored dredge could recover under the Jones Act for injuries suffered while transporting equipment on the shore, the Court decided that whether the vessel was in transit during the worker’s employment was not pertinent to seaman status. Rather, the designation “seaman” was appropriate where “substantially all” of the employee’s duties were performed “on or for” the vessel.

Senko v. La Crosse Dredging Corp., 352 U.S. 370, 372 , 77 S.Ct. 415 , 1 L.Ed.2d 404 (1957). That the injury occurred on land was not relevant to the analysis, although it was appropriate to consider whether the worker would “have a significant navigational function” when the vessel was in transit. 352 U.S. at 373 , 77 S.Ct. 415 . A seaman therefore did not necessarily have to be employed on a vessel in transit at the time of the injury, but perhaps had to have duties that assisted in the navigation of a vessel. See Butler v. Whiteman, 356 U.S. 271 , 78 S.Ct. 734 , 2 L.Ed.2d 754 (1958).

For the next three decades, the Supreme Court had nothing further to say on the subject. Meanwhile, the federal circuit courts of appeals split on whether the worker’s employment had to aid the navigation of a vessel in order to qualify for Jones Act coverage. See DeGravelles, Harbor Tug & Barge Co. v. Papai: Another Turn in the Labyrinth? 10 U.S.F. Mar. L.J. 209, 211 (1998).

Deriving the Modem Test for Seaman Status The Supreme Court revisited the question of seaman status under the Jones Act in three cases during the 1990s in which it attempted to devise a workable test. Wilander — whether the worker must aid navigation In McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 , 111 S.Ct. 807 , 112 L.Ed.2d 866 (1991), the Court held that a ¹⁶¹ worker on a paint boat who supervised sandblasting and painting of oil drilling platforms at sea was a “seaman” even though he did not aid in the navigation of the vessel to which he was assigned. Reasoning that Congress had not intended to limit the Jones Act only to employees with navigational duties and noting that all workers on ships in navigation risk the perils of the sea, the Court employed a broader test: whether a worker asserting seaman status has a “connection” to a vessel in navigation — i.e., whether the employee “contribute[s] to the function of the vessel or to the accomplishment of its mission” and does “the ship’s work.” 498 U.S. at 354-55 , 111 S.Ct. 807 . Chandñs — articulating a two-part test Four years later, the Court elaborated on the extent and nature of the required “connection” in Chandris, Inc. v. Latsis, 515 U.S. 347 , 115 S.Ct. 2172 , 132 L.Ed.2d 314 (1995).

Mr. Latsis was an engineering supervisor who worked primarily from an office on shore but occasionally traveled on his employer’s vessels. On one such trip, he injured his eye and received, he alleged, substandard care from the ship’s doctor that resulted in a significant loss of vision in the eye. After he recuperated from his injury on shore, he returned to the ship and sailed to Germany, where he remained with the vessel while it underwent renovations in dry dock. Six months later, he traveled back to the United States aboard the ship.

In his lawsuit under the Jones Act, Mr. Latsis claimed that he spent 72 percent of his employment working on his employer’s vessels, while the employer put the figure at closer to 10 percent. The trial court instructed the jury that the time that Mr. Latsis spent with the ship while it was in drydock could not be considered because the ship was not “in navigation.” The jury returned a verdict in favor of the ship owner on the basis that Mr. Latsis was not a seaman. The Supreme Court held that the trial court had defined “in navigation” too narrowly and remanded the case for a retrial. The Court also stated certain principles for the determination of seaman status.

The Jones Act is “reserved for sea-based ¹⁶² maritime employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.” Chandris, 515 U.S. at 370 , 115 S.Ct. 2172 (internal citations omitted). 12 The policy of the Act is “to protect sea-based maritime workers, who owe their allegiance to a vessel, and not land-based employees, who do not.” Id. at 376 , 115 S.Ct. 2172 . Accordingly, whether an employee is covered by the Jones Act depends on the status of the employee’s relationship with the vessel or vessels, not the cause or place of the injury. To aid in the analysis, the Court created a two-part test. To be a “seaman” under the Jones Act, the employee must (1) contribute to the function of a vessel or to the accomplishment of its mission, and (2) have a connection to a vessel in navigation that is substantial in both duration and nature.

Chandris, 515 U.S. at 368 , 115 S.Ct. 2172 . The Court explained that the purpose of the latter requirement was 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.” Id. As to the temporal element of its test — i.e., whether the duration of the employee’s connection to a vessel in navigation was substantial — the Court favorably referred to a rule of thumb that had been developed in the Fifth Circuit: “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation” would presumably not satisfy the substantial duration requirement. Chandris, 515 U.S. at 371 , 115 S.Ct. 2172 .

The Court also referred to this rule of thumb as computing the percentage of time “on ¹⁶³ vessels” or “aboard ship.” Id. at 367 , 115 S.Ct. 2172 . 13 The Supreme Court characterized 30 percent as a guideline and noted that “departure from it will certainly be justified in appropriate cases.” Id. at 371 , 115 S.Ct. 2172 . In a passage that has generated some confusion as to where an employee may work for the time to be counted toward seaman status under the 30 percent guideline, the Court also considered whether a vessel in dry dock was necessarily not “in navigation.” The Court held that a vessel undergoing repairs or spending a relatively short period of time in dry dock is still “in navigation”; at some point, however, repairs become “sufficiently significant” that the ship must be considered out of navigation. Chandris, 515 U.S. at 374 , 115 S.Ct. 2172 . In the case before it, the Court held that, in light of the conflicting evidence in the record as to the significance of the dry dock repairs and the potential significance of evidence from that period as to Mr. Latsis’ duties, the trial court’s jury instruction that the period in dry dock was to be disregarded was erroneous.

Accordingly, the Court remanded the case for a new trial. Harbor Tug — connection to vessel must take worker “to sea” Only two years after the Chandris decision, the Court provided a further clarification that seemingly narrowed the definition of seaman. In Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 , 117 S.Ct. 1535 , 137 L.Ed.2d 800 (1997), the ¹⁶⁴ Court held that a deckhand who never went to sea and was injured during a one-day painting assignment on a tugboat was not a seaman under the Jones Act. The Court emphasized that seamen are “those workers who face regular exposure to the perils of the sea.” 520 U.S. at 560 , 117 S.Ct. 1535 .

Accordingly, “[f]or the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea. This will give substance to the inquiry both as to duration and nature of the employee’s connection to the vessel and be helpful in distinguishing land-based from sea-based employees.” Id. at 555 , 117 S.Ct. 1535 (emphasis added). Thus, although the Court in that case was focused on the nature of the employee’s connection to a ship in navigation, it related the seagoing nature of the employee’s duties to the duration test as well. In the case before it, the Court held that the deckhand did not have seaman status in part because his duties “did not include any seagoing activity” but consisted only of maintenance work while the boat was docked.

Id. at 559 , 117 S.Ct. 1535 . Application of the Chandris Test to Mr. Dize The resolution of this case turns on the application of the Chandris test to the circumstances of Mr. Dize’s employment. Under that test, Mr. Dize would qualify as a seaman under the Jones Act if his position (1) contributed to the function of a vessel or to the accomplishment of its mission, and (2) had a connection to a vessel in navigation that was substantial in both duration and nature. The parties agree that the first prong is satisfied, and also that, as to the second prong, Mr. Dize worked on vessels “in navigation.” Therefore, the only issue is whether Mr. Dize’s position had a connection to those vessels that was substantial in both duration and nature.

Application by the Circuit Court and Court of Special Appeals The Circuit Court concluded that, on the undisputed facts, Mr. Dize did not have a connection with a fleet of vessels in navigation that was substantial in duration. The court calcu ¹⁶⁵ lated that the time Mr. Dize spent on water operating launches, which comprised less than 20 percent of his work time, did not satisfy the 30 percent rule of thumb adopted in Chandris. For purposes of the Association’s summary judgment motion, the Circuit Court assumed that the additional hours that Mr. Dize spent maintaining and servicing vessels, whether those vessels were moored at the dock or on shore for repairs, when added to the hours “on the water,” would have put Mr. Dize over the 30 percent threshold. But the court believed “the number of these hours is not material” and declined to count them.

The Circuit Court explained its reasoning: The purpose of the duration requirement is to ensure that the individual’s service regularly exposes him to the perils of the sea. That purpose is best served by a test that measures time spent aboard a vessel, regardless of whether other work activities contribute to the operation of a vessel. Time spent in other tasks on land, even if those activities are activities traditionally performed by seamen or are activities that contribute to the navigational operation of the vessel, do not contribute to this purpose. Therefore, the duration requirement must be measured in terms of time actually spent aboard vessels in navigation.

In answer to Mr. Dize’s argument that the court should deviate from the 30 percent rule of thumb, as Chandris indicated could be appropriate in some circumstances, the Circuit Court noted that Mr. Dize had not provided a specific reason for such a departure. On appeal, the Court of Special Appeals agreed that the focus should be on “activities [Mr. Dize] performed on board a vessel that actively subjected [him] to the perils of the sea.” 205 Md.App. at 193 , 44 A.3d 1033 . It held that maintenance projects that Mr. Dize undertook on docked vessels and his various land-based duties should not be counted toward the 30 percent threshold. Id. at 191 , 44 A.3d 1033 .

In our review of this case, we are charged with construing the Jones Act “uniformly” with the other federal and state ¹⁶⁶ courts that decide these cases. Garrett v. Moore-McCormack Co., 317 U.S. 239, 244 , 63 S.Ct. 246 , 87 L.Ed. 239 (1942). When one attempts to apply the case law from the various federal circuits and state courts under the Jones Act, one encounters a bewildering array of decisions in which there is a citation to support any outcome and no outcome that fits comfortably with every precedent. In such circumstances, we must, like the Circuit Court, focus on the purpose of the statute and the guidance of the Supreme Court in its most