BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on Plaintiff Perry Ward's ("Ward") motion for summary judgment (Dkt. 28), the Court's order granting the motion in part, denying it in part, and reserving ruling in part (Dkt. 61), and the parties' additional briefing. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:
On May 21, 2015, Ward filed a complaint against Defendants EHW Constructors, American Bridge Company, J.V., Nova Group, Inc., and Skanska USA Civil Southeast, Inc. (collectively "EHW") in rem and in personam for personal injury. Dkt. 1. On June 22, 2015, Ward filed an amended complaint alleging that EHW has failed to pay mandatory maritime benefits. Dkt. 12.
On January 14, 2016, Ward filed a motion for summary judgment. Dkt. 28. On April 20, 2016, the Court granted the motion in part, denied it in part, reserved ruling in part, and requested additional briefing. Dkt. 61. On April 29, 2016, EHW responded and submitted additional evidence. Dkt. 62. On May 9, 2016, Ward replied. Dkt. 66.
The remaining issue is whether Ward is a seaman under the Jones Act. The following facts are relevant to this issue:
In May 2012, the U.S. Department of Defense awarded EHW the contract to build an explosives handling wharf at Naval Base Kitsap-Bangor. The contract called for EHW to construct a number of structures, including a covered slip long enough for a 560-footlong submarine, a warping wharf, trestle roads, power utility booms, hardened guard gun positions, and a waterfront support. Dkt. 50, Declaration of William Eskins ("Eskins Dec."), 2.
The wharf project utilized a number of pieces of equipment. Among these were several floating structures, including the Ringer II, which was an un-crewed floating platform comprised of interlocking flexi-floats. The flexi-floats are a combination of portable, interlocking modular barges and ancillary attachments, designed for use in inland marine, heavy-construction applications, which, when connected, could reach several hundred feet in length. The group of flexi-floats comprising the Ringer II was held in place with anchors or "spuds" then maneuvered at the worksite either by tug or by deck wenches. In addition to the flexi-floats, support skiffs were also used on the project to transport materials and laborers. These skiffs are flat-decked boats, approximately four feet wide and twelve feet in length with asmall, 90-horsepower motors. The skiffs were not used to move or reposition the flexi-float barges. Id. at 2-3.
On January 14, 2014, EHW hired Ward through Ward's local union for pile drivers. Ward declares that he has been a pile driver for 36 years. Dkt. 30, Declaration of Perry Ward, 2. The parties dispute the type of work Ward performed and whether he qualifies as a seaman. Ward contends that his "work was always completely out on the water, working on vessels doing the pile driving on piles out in the open, navigable waters." Id. at 3. Ward further declares as follows:
Id. at 4-5. In his second declaration, Ward declares as follows:
Dkt. 58, Second Declaration of Perry A. Ward, ¶¶ 2-4.
On the other hand, EHW contends that Ward was part of a construction crew instead of a seaman. Steve Erickson, EHW's pile driving foreman, declares as follows:
Dkt. 52, Declaration of Steve Erickson, 2. Mr. Eskins declares as follows:
Eskins Dec. at 3-4.
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial — e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
Finally, with regard to the burden of proof, "where the moving party has the burden—the plaintiff on a claim for relief or the defendant on an affirmative defense— his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citation omitted); see also Southern Calif. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).
The Jones Act provides a remedy for "any seaman" injured "in the course of his employment." 46 U.S.C. § 688. A plaintiff is a Jones Act seaman only if (1) his duties contribute to the function of the vessel or to the accomplishment of its mission, and (2) he has a connection to a vessel in navigation that is substantial both in duration and in nature. See Cabral v. Healy Tibbits Builders, Inc., 128 F.3d 1289, 1292 (9th Cir. 1997) (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)). The issue of seaman status under the Jones Act "is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury." Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997).
In cases involving construction barges, the Ninth Circuit has repeatedly held that workers on such barges meet the first element of the relevant test. For example, in Delange v. Dutra Const. Co., 183 F.3d 916, 920 (9th Cir. 1999), the Ninth Circuit concluded that the plaintiff served directly in the service of a ship when he "served in various deckhand capacities while the barge was being moved and also assisted in the piledriving carried out from the barge." The court concluded that a "jury could reasonably conclude from this evidence that Delange contributed to the barge's mission." Id. Similarly, in Cabral v. Healy Tibbits Builders, Inc., 128 F.3d 1289, 1292 (9th Cir. 1997), the Ninth Circuit concluded that "Cabral's duties as a crane operator unquestionably contribute to Barge 538's function as a crane barge."
In this case, Ward has shown that his duties contributed to the function and mission of the Ringer II and its support skiffs. It is undisputed that the majority of Ward's work consisted of construction or setting piles aboard the vessel or a support skiff. Although EHW classifies this work as "constructing the [land based] wharf" (Dkt. 62 at 4), this assertion ignores the reality that piles must be driven into open water before the wharf becomes an extension of land above the water. Moreover, EHW contends that "there is no evidence that [Ward] performed any crew-type work such as piloting, operating, or maintaining a vessel." Id. The Jones Act, however, is not this restrictive and courts have repeatedly extended this element of Jones Act coverage to construction workers on vessels. Delange, 183 F.3d at 920; Cabral, 128 F.3d at 1292. Even if Ward was required to participate in the movement of the vessel, evidence submitted by EHW shows that Ward spent at least some time helping with repositioning anchors. See, e.g., Dkt. 63-1 at 5 (Ward credited three hours working on anchors). Therefore, the Court concludes that there are no questions of material fact on this issue, no reasonable juror could find other than for Ward on this issue, and Ward is entitled to judgment as a matter of law.
Next, the parties dispute whether Ward's connection to the Ringer II was substantial in both nature and duration.
Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 555 (1997). "[T]he purpose of the substantial connection test is to separate land-based workers who do not face the perils of the sea from sea-based workers whose duties necessarily require them to face those risks." Cabral, 128 F.3d at 1293.
In Gipson v. Kajima Eng'g & Const., Inc., 972 F.Supp. 537 (C.D. Cal. 1997), aff'd, 173 F.3d 860 (9th Cir. 1999), the court addressed a factual scenario very similar to the current circumstances. The defendant hired the plaintiff through the local pile driver's union to assist with reconstruction of a bridge. Id. at 539. The plaintiff's "duties were those of a general pile driver and required him to perform a variety of tasks on land, on the bridge, on the cofferdam whale frames, on floating work platforms, and in the skiff, as the exigencies of a given project demanded." Id. The court concluded that the plaintiff did not work on a vessel in navigation and did not have a substantial connection to the barge in question. Id. at 542-45. The Ninth Circuit upheld that latter conclusion stating that the plaintiff's "association with the barge and the skiff was limited to a single bridge construction project; he presented no evidence he had worked on the barge or skiff before that project, or would continue to work on either vessel after the project was completed." Gipson v. Kajima Eng'g & Const., Inc., 173 F.3d 860 (9th Cir. 1999).
Additionally, in Scheuring v. Traylor Bros., 476 F.3d 781 (9th Cir. 2007), the court concluded that questions of fact existed to preclude summary judgment for the employer on the employee's Jones Act claim. The employee was a crane operator on a huge barge on a mission to build a docking structure for cruise ships. Id. at 783. The employee would ride a skiff to and from the barge every day and, on at least three occasions, was on the barge while it was moved by tugboats. Id. at 783-84. Moreover, the barge was "subject to sea swells, wind waves, vessel wakes and tidal currents." Id. at 787. The court held that this evidence "would allow a jury to find a substantial connection to the vessel both in terms of duration and nature." Id.
Given the similarity of Gipson and Scheuring to this case, the Court is unable to conclude that reasonable jurors could find other than for Ward. For example, Ward's association with the Ringer II and the associated skiff were only for the wharf project. Even then, Ward's participation was not even for the duration of the project. Ward was also exposed to the hazards of sea swells, wakes, and currents, but this evidence does not show that he was a seaman as a matter of law. A reasonable juror could find this connection was not substantial in nature or duration. While Ward has cited some out-ofcircuit cases for the proposition that the law has become more inclusive of marine-based workers (Dkt. 66 at 5-9), the cases at most support the conclusion that it is often inappropriate to take this question from the jury. Papai, 520 U.S. at 554 (1997). Therefore, the Court denies Ward's motion on this issue.
Therefore, it is hereby