Foulk v. Donjon Marine Co Inc ( 1998 )


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  •                                                                                                                            Opinions of the United
    1998 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-11-1998
    Foulk v. Donjon Marine Co Inc
    Precedential or Non-Precedential:
    Docket 97-5235
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998
    Recommended Citation
    "Foulk v. Donjon Marine Co Inc" (1998). 1998 Decisions. Paper 107.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1998/107
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    Filed May 11, 1998
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 97-5235 & 97-5269
    LAYNE B. FOULK; MARJORIE E. FOULK, h/w
    v.
    DONJON MARINE COMPANY, INC.,
    Defendant/Third-Party
    Plaintiff
    v.
    BREAKWATERS INTERNATIONAL, INC.,
    Third-Party Defendant
    Donjon Marine Company,
    Inc.,
    Appellant in 97-5235.
    Layne B. Foulk;
    Marjorie E. Foulk,
    Appellants in 97-5269.
    On Appeal from the United States District Court
    for the District of New Jersey
    D.C. Civil Action No. 95-cv-00323
    Argued on December 12, 1997
    Before: GREENBERG, ROTH and SEITZ, Circuit Judges
    (Opinion filed: May 11, 1998)
    David B. Winkler, Esquire
    Marvin I. Barish Law Offices
    Sixth & Walnut Streets
    The Curtis Center, Suite 801
    Philadelphia, PA 19106
    Attorney for Foulks
    Raymond R. Wiss, Esquire (Argued)
    Thomas K. Bouregy, Jr., Esquire
    Wiss & Cooke
    Three University Plaza
    Suite 207
    Hackensack, NJ 07602
    Attorneys for Donjon Marine
    Company, Inc.
    Edward R. Murphy, Esquire
    Elizabeth A. Dalberth, Esquire
    Murphy & O'Connor
    65 Haddon Avenue
    Haddonfield, NJ 08033
    Gary S. Lee, Esquire (Argued)
    Thomas R. Beer, Esquire
    Barger & Wolen
    500 Fifth Avenue
    46th Floor
    New York, NY 10110
    Attorneys for Breakwaters
    International, Inc.
    OPINION OF THE COURT
    ROTH, Circuit Judge:
    This interlocutory appeal involves two questions:
    1) whether we have jurisdiction of it, and 2) whether an
    individual is precluded from being a "seaman" for purposes
    of the Jones Act, 46 U.S.C.   668, if his relationship with a
    barge/diving station in question is only 10 days in
    duration. On the first issue, we will deny appellee/third-
    party defendant, Breakwaters International, Inc.'s, motion
    to dismiss the appeal. We find that the pleadings and
    2
    actions of the parties were sufficient to invoke admiralty
    jurisdiction for purposes of Fed. R. Civ. P. 9(h). We,
    therefore, have jurisdiction of this appeal of a non-final
    order under 28 U.S.C.   1292(a)(3). On the second issue,
    the district court held that Layne Foulk, a freelance
    commercial diver, had insufficient durational connections
    to the barge to be considered a "seaman" covered by the
    Jones Act. Foulk v. Donjon Marine Co, Inc., 
    961 F. Supp. 692
    , 698 (D.N.J. 1997). We do not agree and will reverse.
    I. Facts
    In April 1993, the Borough of Avalon, New Jersey,
    contracted with Breakwaters to erect an artificial reef off
    Avalon's coast. Breakwaters contracted with Donjon to
    provide material, barges, tugs, and a floating crane barge.
    Breakwaters hired freelance divers, including Foulk, to
    perform some of the work. Construction began on July 10,
    1993, under Breakwaters' direction. Donjon's crane barge,
    the Farrell 256, anchored 150 feet offshore, was used both
    to install the reef and as a dive station for the dive crew,
    consisting of Foulk and three other commercial divers who
    were to assist in the placement of the reef. As dive station,
    the barge held air compressors, a communications box, and
    other diving equipment. The dive crew were to sleep ashore
    and to report to the barge by motor launch each morning.
    Foulk was hired to work for 10 days, the duration of the
    project. On his first day of work, Foulk was injured when,
    while in the water, he was caught between a jetty and the
    clamshell bucket operated by the barge crane. He suffered
    various fractures, a collapsed lung and an injured right
    shoulder.
    On January 6, 1995, while on disability, Foulk and his
    wife, Marjorie, filed suit against Donjon and Breakwaters,
    sounding in negligence and general maritime law. The
    Foulks alleged both diversity and admiralty jurisdiction. On
    February 14, 1995, before any answer was filed, the Foulks
    amended their complaint to name only Donjon as defendant
    on claims of negligence and of the unseaworthiness of
    Donjon's vessel. Jurisdiction was once again grounded in
    both diversity and admiralty. On March 10, 1995, Donjon
    filed both an answer and a third-party claim against
    3
    Breakwaters for indemnity and contribution. On June 1,
    1995, the Magistrate Judge granted Donjon's oral motion to
    amend its third-party complaint to make a claim against
    Breakwaters in favor of the Foulks, pursuant to Fed. R. Civ.
    P. 14(c). Breakwaters did not object to this amendment.
    The parties subsequently submitted a joint pre-trial order
    which stated inter alia, that "jurisdiction of the Court arises
    under the Admiralty Law as modified by the Jones Act, 46
    U.S.C.   668." Breakwaters sought partial summary
    judgment on its contention that Foulk was not a "seaman"
    under the Jones Act, 46 U.S.C.   688. Donjon and Foulk
    cross-moved for partial summary judgment that Foulk was
    a Jones Act "seaman." On April 9, 1997, the District Court
    granted Breakwaters' motion and denied Donjon and
    Foulk's motion to the contrary. Foulk v. Donjon Marine Co,
    Inc., 
    961 F. Supp. 692
    , 698 (D.N.J. 1997). Donjon and the
    Foulks filed notices of interlocutory appeal on April 21,
    1997, and April 30, 1997, respectively. 28 U.S.C.
    1292(a)(3). On May 9, 1997, Breakwatersfiled a motion to
    dismiss the appeal. For the reasons set forth below, we will
    deny Breakwaters motion to dismiss, and, considering the
    merits of the appeal, we will reverse the district court grant
    of partial summary judgment in favor of Breakwaters.
    II. Jurisdiction
    Before we reach the merits of this appeal, we mustfirst
    resolve Breakwaters' motion to dismiss it. Donjon asserts
    that the jurisdictional basis for its interlocutory appeal is
    28 U.S.C.   1292(a)(3)1 which provides in part:
    [T]he court of appeals shall have jurisdiction of appeals
    from:
    (3) Interlocutory decrees of such district courts or
    the judges thereof determining the rights and
    liabilities of the parties to admiralty cases in which
    appeals from final decrees are allowed.
    _________________________________________________________________
    1. Donjon concedes that 28 U.S.C.   1291 is inapplicable as a basis for
    jurisdiction because there was no "final judgment" of the district court.
    Appellant Donjon's Br. in Opp. to Appellee Breakwater's Mot. to Dismiss,
    at 11; See United States v. Brook Contracting Corp., 
    759 F.2d 320
     (3d
    Cir. 1985).
    4
    To use   1292(a)(3) as a basis for appellate jurisdiction of
    an interlocutory order, such as a grant of partial summary
    judgment, a plaintiff must be asserting an admiralty or
    maritime claim within the meaning of Fed. R. Civ. P. 9(h).
    This Rule states as follows:
    A pleading or count setting forth a claim for relief
    within the admiralty and maritime jurisdiction that is
    also within the jurisdiction of the district court on
    some other ground may contain a statement identifying
    the claim as an admiralty or maritime claim for the
    purposes of Rules 14(c), 38(e), 82 and the Supplemental
    Rules for Certain Admiralty and Maritime Claims. If the
    claim is cognizable only in admiralty, it is an admiralty
    or maritime claim for those purposes whether so
    identified or not. . . . The reference in [28 U.S.C.
    1292(a)(3)] to admiralty cases shall be construed to
    mean admiralty and maritime cases within the
    meaning of this subdivision [Fed. R. Civ. P. 9](h).
    (emphasis added).
    In both its initial complaint against Breakwaters and
    Donjon and in its First Amended Complaint against only
    Donjon, Foulk asserted two bases for subject-matter
    jurisdiction: admiralty and diversity.2 When a federal
    plaintiff makes a claim in admiralty or joins an admiralty
    claim with another claim, certain special procedures and
    rules apply: Rules 14(c), 38(e), 82, the Supplemental Rules
    _________________________________________________________________
    2. The First Complaint states:
    The jurisdiction of this Court arises under the Admiralty law by
    the
    Jones Act, 46 U.S.C.   688, and the diversity jurisdiction of the
    Court, 28 U.S.C.   1332, the amount in controversy being in excess
    of Fifty Thousand Dollars ($50,000.00) exclusive of interest and
    costs.
    Compl. and Jury Demand,    5. The First Amended Complaint states:
    The jurisdiction of this Court arises under the Admiralty law and
    the diversity jurisdiction of the Court, 28 U.S.C. 1332, the
    amount
    in controversy being in excess of Fifty Thousand Dollars
    ($50,000.00) exclusive of interest and costs.
    First Am. Compl. and Jury Demand,    4.
    5
    for Certain Admiralty and Maritime Claims, and 28 U.S.C.
    1292(a)(3). Rule 9(h) helps clarify the applicability of these
    admiralty and maritime rules and procedures in a case
    where more than one basis for subject matter jurisdiction
    has been asserted. To assist the court and the parties in
    recognizing the presence of an admiralty claim in a multi-
    claim suit, Rule 9(h) provides that the complaint "may
    contain a statement identifying the claim as an admiralty or
    maritime claim ... ." See Fedorczyk v. Caribbean Cruise
    Lines, Ltd., 
    82 F.3d 69
    , 73 (3d Cir. 1996).
    Breakwaters grounds its motion to dismiss the appeal on
    the fact that, in asserting admiralty jurisdiction in both the
    original and the amended complaints, the Foulks do not
    specifically cite to Rule 9(h) and, as a consequence, do not
    "identify the pleading as an admiralty claim." For this
    reason, Breakwaters contends that the Foulks did not
    invoke admiralty jurisdiction and cannot employ the
    procedures associated with it, including the use of 28
    U.S.C.   1292(a)(3), the jurisdictional basis for this appeal.
    As a result, Breakwaters asserts that section 1292(a)(3) is
    inapplicable and that this appeal must be dismissed for
    lack of jurisdiction.
    The issue that we must resolve is how specific a party
    must be in identifying an admiralty claim in a complaint
    when that party is pleading alternative theories of subject
    matter jurisdiction. Generally, under the liberal notice
    pleading practices in federal civil cases, a claimant "does
    not have to set out in detail the facts upon which the claim
    for relief is based, but must merely provide a statement
    sufficient to put the opposing party on notice of the claim."
    2 Moore's Federal Practice,   8.04[1] (Matthew Bender 3d
    ed. 1988); see Hishon v. King & Spaulding, 
    467 U.S. 69
    ,
    78-79 (1984); Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957)
    (pleading must contain only a short and plain statement
    sufficient to give notice); Fed. R. Civ. P. 8. Similarly, the
    claimant must include "a short and plain statement of the
    grounds upon which the court's jurisdiction depends." Fed.
    R. Civ. P. 8(a)(1). Plaintiff's complaints, see n.2, both clearly
    stated two jurisdictional bases: diversity and admiralty.
    There are, however, embellishments to the Rule 8 notice
    pleading provisions. One of these is Fed. R. Civ. P. 9(h)
    6
    which explains that a party in Foulk's position, who has set
    forth two jurisdictional bases, "may" include a "statement
    identifying the claim as an admiralty or maritime claim."
    (emphasis added). By affirmatively including such a
    statement, a party clearly describes a claim as being one in
    admiralty. See Advisory Committee Notes, Fed. R. Civ. P. 9,
    1966 Amendment ("the preferable solution [for designating
    a claim as an admiralty claim] is to allow the pleader who
    now has power to determine procedural consequences by
    filing a suit in admiralty to exercise that power under
    unification ... by a simple statement in his pleading to the
    effect that the claim is an admiralty or maritime claim."); cf.
    Fedorczyk, 
    82 F.3d at 73
     (stating that "[t]o invoke admiralty
    jurisdiction ... a plaintiff must affirmatively insert a
    statement in the pleadings identifying the claim as an
    `admiralty or maritime claim'.").
    A direct citation to Rule 9(h) is unambiguous and may be
    considered by some to be preferable. See Wright & Miller,
    Federal Practice and Procedure: Civil 2d   1211 (West
    1990); Fed. R. Civ. P. Forms 2(d).3 However, nothing in
    Rule 9(h) restricts the invocation of admiralty jurisdiction to
    a specific citation to that rule. Indeed, Rule 9(h)'s use of the
    word "may," instead of "must," suggests that the specific
    use of the words "Rule 9(h)" is not required.
    We conclude then that a plaintiff, invoking admiralty
    jurisdiction, does not need to make direct reference to
    Rule 9(h). The question remains, however, just how specific
    a reference to admiralty jurisdiction must be in order to
    invoke it. Our review of the facts of the present case
    convinces us that the pleadings, along with the parties'
    actions, are sufficient to invoke it.
    _________________________________________________________________
    3. In fact a number of district courts have so held. See, e.g., Subaru
    Distributors Corp. v. General Ship Corp., 
    167 F.R.D. 342
    , 343 (D. Mass
    1996); Lewis v. United States, 
    812 F.Supp. 620
    , 628 (E.D. Va. 1993);
    Siragusa v. Standard Steamship Owners Protection, 
    710 F.Supp. 404
    ,
    407 (D.P.R. 1989); Banks v. Hanover Steamship Corp., 
    43 F.R.D. 374
    ,
    376-7 (D.Md. 1967). By contrast, the Fifth Circuit has held to the
    contrary, that explicit reference to Fed. R. Civ. P. 9(h) is not
    necessary.
    Teal v. Eagle Fleet, Inc., 
    933 F.2d 341
    , 345 (5th Cir. 1991); T.N.T.
    Marine
    Service, Inc. v. Weaver Shipyards and Dry Docks, Inc., 
    702 F.2d 585
    ,
    587-88 (5th Cir.), cert. denied, 
    104 S.Ct. 151
     (1983).
    7
    Shortly after defendant/third-party plaintiff Donjonfiled
    its third-party complaint against Breakwaters for indemnity
    and contribution, the magistrate judge granted Donjon's
    oral motion to amend its third-party complaint to reflect
    that it was seeking a claim for judgment against
    Breakwaters in favor of plaintiffs pursuant to Fed. R. Civ.
    P. 14(c). See Order Amending Third Party Complaint, June
    1, 1995. A third party claim under Fed. R. Civ. P. 14(c) can
    only be made with respect to admiralty claims as
    contemplated under Rule 9(h). See Fed. R. Civ. P. 14(c)
    ("When a plaintiff asserts an admiralty or maritime claim
    within the meaning of Rule 9(h), the defendant or claimant,
    as a third party plaintiff, may bring in a third party
    defendant who may be . . .liable. . . by way of remedy over,
    contribution or otherwise on account of the same
    transaction . . .."); Teal v. Eagle Fleet, Inc., 
    933 F.2d 341
    ,
    344 n.1 (5th Cir. 1991) ("Third party claims under
    Rule 14(c) are only available in admiralty or maritime
    claims."). Donjon's Rule 14(c) claim, then, made it clear to
    all parties that this case would proceed, in part at least, as
    an admiralty claim.4
    Furthermore, the parties' manifestation of intent to
    proceed under admiralty jurisdiction was confirmed by the
    final pre-trial order, entered with the consent of
    Breakwaters, which stated that admiralty alone was the
    basis for jurisdiction. See Joint Final Pre-Trial Order ("The
    jurisdiction of the Court arises under Admiralty Law as
    modified by the Jones Act, 46 U.S.C. Section 688."; see also
    _________________________________________________________________
    4. The dissent argues that "actions by a defendant should not control the
    question of whether a plaintiff meant to invoke admiralty jurisdiction."
    Dissent at 22. We do not suggest that defendant-third party plaintiff
    Donjon was single-handedly able to invoke admiralty procedure on
    behalf of plaintiff; rather that because no parties objected to Donjon's
    motion, it became clear that all parties tacitly agreed to pursue an
    admiralty claim, and that this case would proceed, at least in part, as
    such. Moreover the fact that the plaintiffs joined in the Pretrial Order
    and are now appellants before us on this interlocutory appeal further
    demonstrates that they are cognizant of the invocation of admiralty
    jurisdiction. The dissent's ensuing cite makes clear that actions of the
    plaintiff are relevant to what jurisdiction the plaintiff has invoked.
    Dissent at 22 citing Bryan v. Associated Container Transp., 
    837 F.Supp. 633
    , 641 (D.N.J. 1993).
    8
    Fedorczyk, 
    82 F.3d at 73
     (holding that the district court did
    not have admiralty jurisdiction and noting that the district
    court had entered a pretrial order, stating that the
    "jurisdictional predicate" was diversity of citizenship,
    without objection from any party (including appellant
    Fedorczyk who was arguing in favor of admiralty
    jurisdiction)). Having concluded that the parties' pleadings
    and actions were sufficient to invoke admiralty jurisdiction,
    we have jurisdiction to hear Foulks' and Donjon's
    interlocutory appeal pursuant to 28 U.S.C.   1292(a)(3).
    III. Seaman Status
    Turning to the merits of the appeal, Foulk and Donjon
    argue that the District Court erred in granting partial
    summary judgment on the issue of Layne Foulk's seaman
    status under the Jones Act. The Jones Act provides a cause
    of action in negligence for "any seaman" injured "in the
    course of his employment." 46 U.S.C.   688. There are two
    components to "seaman" status. See McDermott Int'l Inc., v.
    Wilander, 
    111 S.Ct. 807
    , 813 (1991); Chandris, Inc. v.
    Latsis, 
    115 S.Ct. 2172
     (1995). First, the "employee's duties"
    must "contribut[e] to the function[ing] of the vessel or to the
    accomplishment of its mission." Chandris, 
    115 S.Ct. at 2190
    . Second, the worker's "connection to the "vessel in
    navigation" must be "substantial in terms of both its
    duration and its nature." 
    Id.
     The district court found that
    while the first requirement was met, as a matter of law, the
    second requirement could not be met and thus granted
    partial summary judgment to Breakwaters. Foulk, 
    961 F.Supp. at 698
    . The district court reasoned that Foulk's
    10-day assignment was temporary and, therefore, not of
    sufficient duration to satisfy the Chandris "substantial
    duration" requirement. 
    Id.
     ("Ten days (excluding nights),
    with no view towards a more permanent relationship, is
    simply too short a duration to satisfy the Chandris
    durational requirement for seaman status."). We review the
    district court grant of summary judgment5 de novo. See
    _________________________________________________________________
    5. The standard for summary judgment is well settled: "Summary
    judgment is appropriate when the admissible evidence fails to
    demonstrate a genuine issue of material fact, and the moving party is
    9
    Semper v. Johnson and Higgins, 
    45 F.3d 724
    , 727 (3d Cir.
    1995).
    The Jones Act fails to define the term "seaman." 46
    U.S.C.   688. In 1927, Congress provided some content to
    the Jones Act seaman requirement by passing the
    Longshore and Harbor Workers' Compensation Act
    (LHWCA). 33 U.S.C.    901-950. The LHWCA provides the
    exclusive remedy for land-based maritime workers and
    excludes from its purview "a master or member of a crew of
    any vessel." 33 U.S.C.   902(3)(G). The Jones Act and
    LHWCA are mutually exclusive. Because eligibility under
    the LHWCA precludes eligibility under the Jones Act,
    "master or member of a crew" must be seen as a refinement
    of the term "seaman" in the Jones Act. Harbor Tug and
    Barge Co. v. Papai, 
    117 S.Ct. 1535
    , 1538 (1997); McDermott
    Int'l Inc., v. Wilander, 
    111 S.Ct. 807
    , 813 (1991).
    More recently, the Supreme Court has provided a
    framework from which to analyze "seaman" status for
    purposes of the Jones Act, providing two essential
    requirements. See McDermott Int'l, 
    111 S.Ct. at 813
    ;
    Chandris, Inc. v. Latsis, 
    115 S.Ct. 2172
     (1995). First, the
    worker's duty must be to contribute to the functioning of
    the vessel, and second, the worker's connection to the
    vessel must be "substantial in terms of both its duration
    and nature." Chandris, 
    115 S.Ct. at 2190
    . The Court
    explained that the purpose of the "seaman" requirement is
    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," reserving seaman status for those
    who are regularly exposed to the perils of the sea. 
    Id.
     The
    _________________________________________________________________
    entitled to judgment as a matter of law. Fed. R. Civ. P 56(c). When, as
    here, the nonmoving party bears the burden of persuasion at trial, the
    moving party may meet its burden on summary judgment by showing
    that the nonmoving party's evidence is insufficient to carry that burden.
    The nonmoving party creates a genuine issue of material fact if he
    provides sufficient evidence to allow a reasonable jury to find for him at
    trial. We give the nonmoving party the benefit of all reasonable
    inferences." Wetzel v. Tucker, No. 97-7207, slip op. at 4, n.2 (3d Cir.
    Mar. 23, 1998) (citations omitted).
    10
    Court made clear that the "total circumstances of an
    individual's employment must be weighed to determine
    whether he had a sufficient relation to the . . . vessels." 
    Id.
    Furthermore, the issue of seaman status is a mixed
    question of fact and law. 
    Id.
     Once the court defines the
    appropriate standard, the trier of fact must decide whether
    a particular employee meets that standard and is thus a
    seaman. Id.; Griffith v. Wheeling Pittsburgh Steel Corp., 
    521 F.2d 31
    , 36-37 (3d Cir. 1975). "Nevertheless,`summary
    judgment . . . is mandated where the facts and the law will
    reasonably support only one conclusion." Harbor Tug, 
    117 S.Ct. at 1540
    . The District Court granted Breakwaters'
    motion for partial summary judgment on seaman status,
    reasoning that the facts and the law support only the
    conclusion that Foulk was not a seaman. We do not agree.
    There is no question that Foulk met the first requirement
    -- he contributed to the functioning of the vessel and to the
    accomplishment of its mission. As the district court found,
    the mission of the vessel in question, the Farrell 256, was
    the installation of an artificial reef. Foulk, 
    961 F.Supp. at 696
    . Foulk was employed as a diver whose duty it was to
    aid in the installation of the reef. See Wilander, 
    111 S.Ct. at 817
     ("It is not necessary that a seaman aid in navigation
    or contribute to the transportation of the vessel, but a
    seaman must be doing the ship's work.").
    There is also no question that Foulk met the first part of
    the second requirement -- his connection to the vessel was
    substantial in nature. As the district court found, Foulk
    and the dive crew were necessary for the successful
    completion of the Farrell 256's project -- the construction
    of the artificial reef. Foulk, 
    961 F.Supp. at 697
    .
    Furthermore, the profession of commercial diving is
    maritime in nature as it cannot be done on land. Wallace
    v. Oceaneering Int'l, 
    727 F.2d 427436
     (5th Cir. 1984).
    Commercial divers are regularly exposed to the perils of the
    sea, the protection from which was the purpose of the
    Jones Act seaman requirement. Chandris, 
    115 S.Ct. at 2190
    .
    There is a question, however, whether Foulk met the
    second part of the second requirement -- that Foulk's
    11
    connection to the Farrell 256 was substantial in duration.
    Foulk had worked alongside the Farrell 256 on the Avalon
    reef project for only half a day when he was injured.
    Nevertheless, under the "no snapshot" doctrine, articulated
    in Chandris, a court does not evaluate a worker's
    connection to a vessel or fleet at the moment of injury.
    Instead, the court must consider his intended relationship,
    as if he had completed his mission uninjured. 
    115 S.Ct. at 2187, 2191-92
    . The contemplated arrangement between
    Foulk and the Farrell 256 was for 10 days' work. Thus,
    under the "no snapshot" doctrine, 10 days, not a few hours,
    is the appropriate durational measure.
    The question then is whether Foulk qualifies as a Jones
    Act "seaman" when his durational connection to the Farrell
    256 was only 10 days, i.e,. whether 10 days is sufficient for
    "substantial duration." The district court found that, as a
    matter of law, a 10 day relationship was too short to satisfy
    the Chandris durational requirement. Foulk, 
    961 F.Supp. at 698
    .6
    We conclude that the durational element cannot be
    answered by an absolute measure. It is the temporal
    element and the nature of the activities performed that,
    taken together, determine seaman status. Chandris, 
    115 S.Ct. at 2190-91
    . While the Supreme Court did adopt "the
    centerpiece of the formulation used by the Court of
    Appeals" in that case (the two-part test), and did find it
    "important that a seaman's connection to a vessel. . . be
    substantial in both respects (duration and nature)," 
    id. at 2191
    , the Court specifically rejected "the temptation to
    create detailed tests to effectuate the congressional
    purpose, tests that tend to become ends in and of
    themselves." 
    Id. at 2190
    . To define substantial duration by
    _________________________________________________________________
    6. The district court cited, as relevant points in arriving at its
    decision,
    the fact that Foulk went out to the diving barge each morning and went
    home each evening; he did not eat breakfast or supper and he did not
    sleep on board the barge. Foulk, 
    961 F.Supp. at 698
    . Nevertheless,
    where Foulk ate or slept had nothing to do with the performance of his
    duties. Nor did the location where Foulk ate or slept in any way affect
    the maritime nature of his duties. For that reason, we will look at the
    duration of the job as ten days, without subtracting for the nights on
    shore.
    12
    an absolute number would be to create such a test. The
    ultimate inquiry is "whether the worker in question is a
    member of the vessel's crew or simply a land-based
    employee who happens to be working on the vessel at a
    given time," id. at 2191, and the two-part test is merely an
    aid in making that determination. So while the Court did
    explain that both the duration and the nature of the
    connections be "substantial," id., the inquiry is one in the
    totality of circumstances. Id. at 2190. It is inappropriate to
    attempt to determine the minimum durational element by
    an absolute number, such as 10 days.
    Furthermore, this reasoning is consistent with this
    court's holding that "lack of long-continued[durational]
    attachment to a vessel cannot, as a matter of law, serve to
    deny [Jones Act] seaman status to an employee who is
    injured while assigned to and performing normal crew
    service." Reeves v. Mobile Dredging & Pumping Co. Inc., 
    26 F.3d 1247
    , 1252 (3d Cir. 1994) citing with approval Latsis
    v. Chandris, Inc., 
    20 F.3d 45
     (2d Cir. 1994) aff'd 
    115 S.Ct. 2172
    . Although pre-Chandris, this court in Reeves was
    cognizant of the "permanence" requirement that required a
    worker's assignment to be substantial in duration, the
    holding eventually reached by the Supreme Court in
    Chandris. Our holding in Reeves that the lack of long
    attachment to a vessel cannot deny seaman status as a
    matter of law remains effective post-Chandris. Here, Foulk
    was clearly performing the "normal crew service" of the
    Farrell 256 -- installation of the artificial reef. The fact that
    he was only going to do it for 10 days does not, by itself,
    mandate summary judgment. Ten days is not a "clearly
    inadequate temporal connection to vessels in navigation,
    sufficient to take the question from the jury by granting
    summary judgment." See, e.g. Palmer v. Fayard Moving and
    Transportation Corp., 
    930 F.2d 437
     (5th Cir. 1991). A jury
    could reasonably find that an employee's connections to a
    vessel are substantial in both duration and nature even if
    the duration contemplated is 10 days. The analysis of
    seaman status, and ultimately of whether an employee's
    connections are substantial in duration and nature, may
    include a multiplicity of factors. See, e.g., Betrand v.
    International Mooring & Marine, Inc., 
    700 F.3d 240
     (5th Cir.
    13
    1983) cert. denied, 
    464 U.S. 1069
     (1984). The contemplated
    number of days of employment is only one of these factors.
    Consequently, we will reverse the trial court's grant of
    summary judgment on seaman status and remand the case
    to the district court for further proceedings consistent with
    this opinion.7
    _________________________________________________________________
    7. The dissent comments on the implications of this opinion vis-a-vis
    plaintiffs' demand for a jury trial. Dissent at 23. We do not pass on this
    question as it is not presently before us at this interlocutory appeal of
    a
    grant of partial summary judgment. If this question were to come up at
    a later date, it would of course be governed by relevant legal precedent
    including Fitzgerald v. United States Line Co. , 
    83 S.Ct. 1646
     (1963) and
    Haskins v. Point Towing Co., 
    395 F.2d 737
     (3d Cir. 1968).
    14
    GREENBERG, Circuit Judge, dissenting:
    I respectfully dissent from my colleagues' determination
    that this court has jurisdiction to hear this interlocutory
    appeal. Because I dissent on jurisdictional grounds, I do
    not reach the substantive issue raised on the appeal.
    An interlocutory appeal under 28 U.S.C.   1292(a)(3) is
    appropriate only in a case based on admiralty jurisdiction.
    When a complaint sets forth allegations potentially
    cognizable under both the admiralty and non-admiralty
    jurisdiction of the district court, it must contain a
    statement identifying the claim as one in admiralty in order
    to invoke the district court's admiralty jurisdiction under
    28 U.S.C.   1333. See Fed. R. Civ. P. 9(h). This designation
    is significant, because claims arising under admiralty
    jurisdiction to some degree involve different procedures
    from claims at law, not the least of which is the denial of
    a jury trial. See Fed. R. Civ. P. 38(e); In re Consolidation
    Coal Co., 
    123 F.3d 126
    , 132 (3d Cir. 1997). In determining
    whether the plaintiff made the admiralty jurisdiction
    election, courts must look to the face of the complaint to
    see if it contains the appropriate jurisdictional allegations.
    See Heilman v. United States, 
    731 F.2d 1104
    , 1111 (3d Cir.
    1984).
    In the present case, the initial complaint states that "[t]he
    jurisdiction of this Court arises under the Admiralty law as
    modified by the Jones Act, 46 USC   688, and the diversity
    jurisdiction of the Court, 28 USC 1332 . . . ." Complaint
    at 2. The language in the first amended complaint parallels
    this allegation, but omits the reference to the Jones Act,
    instead stating that the court's jurisdiction "arises under
    the Admiralty law and the diversity jurisdiction of the
    Court, 28 USC 1332 . . . ." First Amended Complaint at 1.
    The reason for this omission of the Jones Act allegation is
    that the Foulks dropped their Jones Act claim against
    Breakwaters, Layne B. Foulk's employer. The initial
    complaint and the first amended complaint also contain a
    demand for a jury trial, a right which the Foulks preserved
    in the final pretrial order. See Complaint at 7; First
    Amended Complaint at 4; Joint Final Pretrial Order at 1.
    In asserting an action under the Jones Act, a plaintiff can
    elect to sue either under admiralty jurisdiction or at law
    15
    invoking federal question jurisdiction. See Yates v. Dann,
    
    223 F.2d 64
    , 66 (3d Cir. 1955); 14 Charles Alan Wright &
    Arthur R. Miller, Federal Practice and Procedure     3677 at
    492 (Supp. 1997). Accordingly, because the Foulks' original
    complaint alleged jurisdiction under the Jones Act, it stated
    a claim potentially cognizable under either admiralty or
    non-admiralty jurisdiction. However, the complaint did not
    mention specifically Rule 9(h) or 28 U.S.C. 1333;
    therefore, while the Foulks plainly invoked the court's
    diversity jurisdiction, it is unclear whether in addition they
    intended to invoke the court's admiralty jurisdiction or
    whether they chose to rely on the court's federal question
    jurisdiction. When the Foulks amended their complaint to
    eliminate the Jones Act claim, this action also eliminated
    any potential federal question jurisdiction; but the
    jurisdictional question remained unclear, because they still
    could rely on two possible bases for jurisdiction, i.e.,
    admiralty and diversity jurisdiction.
    In discussing the language in a complaint necessary to
    invoke admiralty jurisdiction in cases with multiple possible
    bases for jurisdiction, we have held that "[t]o invoke
    admiralty jurisdiction . . . a plaintiff must affirmatively
    insert a statement in the pleadings identifying the claim as
    an `admiralty or maritime claim.' " Fedorczyk v. Caribbean
    Cruise Lines, LTD, 
    82 F.3d 69
    , 73 (3d Cir. 1996); see also
    Bryan v. Associated Container Transp., 
    837 F. Supp. 633
    ,
    641-42 (D.N.J. 1993) (holding that the claim was based on
    diversity jurisdiction and not maritime jurisdiction in part
    because the party did not specifically invoke maritime
    jurisdiction under Rule 9(h)). However, beyond this
    statement, we did not provide any guidance in Fedorczyk
    instructive here; thus, it is appropriate to examine
    decisions of other courts that have confronted this problem
    to determine what our rule should be.
    The Court of Appeals for the Fifth Circuit has crafted a
    liberal rule regarding the language necessary to elect
    admiralty jurisdiction under Rule 9(h). See T.N.T. Marine
    Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 
    702 F.2d 585
    , 587-88 (5th Cir. 1983) (holding that an allegation that
    "[t]his is also a suit for breach of a maritime contract and
    for maritime tort" was sufficient to invoke admiralty
    16
    jurisdiction). Under this rule, the complaint does not have
    to mention Rule 9(h) specifically, see Bodden v. Osgood,
    
    879 F.2d 184
    , 186 (5th Cir. 1989); instead, the complaint
    only need contain "a simple statement asserting admiralty
    or maritime claims." Teal v. Eagle Fleet, Inc., 
    933 F.2d 341
    ,
    345 (5th Cir. 1991) (quoting T.N.T. Marine, 
    702 F.2d at 588
    ). However, not every complaint that contains
    allegations relating to admiralty should be considered to
    have invoked admiralty jurisdiction. Instead, courts must
    look to the "totality of the circumstances" of the case.
    Bodden, 
    879 F.2d at 186
    .
    The Court of Appeals for the First Circuit also has held
    that the mention of Rule 9(h) is not required. In Concordia
    Co. v. Panek, 
    115 F.3d 67
    , 72 (1st Cir. 1997), the court
    held that to invoke admiralty jurisdiction, "the preferred
    technique is to invoke expressly Rule 9(h)," but the court
    did not require litigants to do so. Instead, the court
    examined the pleadings, which stated that the claim was
    "In Admiralty," and concluded that this language was
    sufficient to invoke admiralty jurisdiction in light of the fact
    that the litigant did not demand a jury trial. 
    Id.
    The Court of Appeals for the Ninth Circuit has not
    adopted such a liberal rule, but it also has not required the
    specific mention of Rule 9(h). In Trentacosta v. Frontier Pac.
    Aircraft Indus., Inc., 
    813 F.2d 1553
    , 1559 (9th Cir. 1987),
    the amended complaint contained a claim seeking relief
    under the "Jones Act and General Maritime Law." The
    amended complaint did not invoke admiralty jurisdiction;
    instead, the plaintiff "was careful to invoke federal
    jurisdiction only under 28 U.S.C.   1331." 
    Id.
     The court
    held that such language was insufficient to invoke
    admiralty jurisdiction, because the plaintiff elected only to
    invoke jurisdiction under the "law" side rather than on the
    "admiralty side." Id.; see generally Owens-Illinois, Inc. v.
    United States Dist. Court for the W. Dist. of Wash., 
    698 F.2d 967
    , 972 n.2 (9th Cir. 1983) (reasoning that requiring a
    statement specifically mentioning Rule 9(h) to invoke
    admiralty jurisdiction seems to be the correct rule, but
    holding that the court did not need to reach the question).
    Thus, even though the court did not require the specific
    mention of Rule 9(h), the Court of Appeals for the Ninth
    17
    Circuit seems to have adopted a stricter pleading standard
    than the Courts of Appeals for the Fifth and First Circuits.
    Although the Court of Appeals for the Fourth Circuit has
    not ruled on this issue, a number of district courts within
    that circuit have required the specific mention of Rule 9(h)
    in order to invoke admiralty jurisdiction in cases with
    multiple bases for jurisdiction. See Lewis v. United States,
    
    812 F. Supp. 620
    , 628 (E.D. Va. 1993) (requiring a specific
    mention of Rule 9(h)); see also Banks v. Hanover Steamship
    Corp., 
    43 F.R.D. 374
    , 376-77 (D. Md. 1967) (requiring a
    specific statement of admiralty jurisdiction). Thus, these
    rulings have established the strictest standard among the
    federal courts that have addressed this issue.
    After reviewing these cases and the specific facts of this
    case, I would hold that we should be somewhat exacting in
    our view of the pleadings with regards to invoking admiralty
    jurisdiction in cases involving more than one potential
    jurisdictional base. While under the Federal Rules of Civil
    Procedure "[n]o technical forms of pleading or motions are
    required," Fed. R. Civ. P. 8(e)(1), it is important for a
    plaintiff to alert the district court that he or she intends to
    invoke the court's admiralty jurisdiction. If the plaintiff
    wishes to invoke admiralty jurisdiction and its
    accompanying procedures in a case involving more than
    one potential jurisdictional base, the plaintiff should be
    required to state specifically that the claim is "an admiralty
    or maritime claim within in the meaning of Rule 9(h)."5
    Charles Alan Wright & Arthur R. Miller, Federal Practice
    and Procedure   1313 at 719 (2d ed. 1990). As Professor
    Thomas J. Schoenbaum has stated:
    If, however, the claim is cognizable not only in
    admiralty but also on some other ground of federal
    jurisdiction (such as diversity), the pleader is put to an
    election whether to invoke the special admiralty
    procedures and remedies. To plead an admiralty or
    maritime claim in such a case, the pleading must, in
    addition to the admiralty jurisdictional allegations,
    contain an identifying statement (or its equivalent) as
    follows: This is an admiralty or maritime claim within
    the meaning of Rule 9(h). If this identifying statement is
    18
    not made, the claim may be treated as a non-maritime
    civil action.
    Thomas J. Schoenbaum, Admiralty and Maritime Law
    21-1 at 467 (2d ed. 1994) (emphasis in original) (footnotes
    omitted).
    This case, of course, involves the precise situation which
    Schoenbaum describes. Application of the rule as set forth
    by Schoenbaum would place the court and the other
    litigants on notice that the plaintiff intends to invoke the
    admiralty jurisdiction of the district court. Such a rule
    requiring the complaint to mention Rule 9(h) is not unduly
    harsh, as the plaintiff can control the situation completely
    with his or her pleadings. Because the Foulks failed to
    mention Rule 9(h), I would hold that they did not make the
    required election under that rule and therefore would
    dismiss this appeal for lack of jurisdiction.
    In holding that no such statement is required, the
    majority relies on the language of Rule 9(h) (emphasis
    added) which provides:
    A pleading or count setting forth a claim for relief
    within the admiralty and maritime jurisdiction that is
    also within the jurisdiction of the district court on
    some other ground may contain a statement identifying
    the claim as an admiralty or maritime claim for the
    purposes of Rules 14(c), 38(e), 82, and the
    Supplemental Rules for Certain Admiralty and
    Maritime Claims. . . .
    The majority contends that the use of the word "may"
    demonstrates that specific invocation of Rule 9(h) is not
    necessary; however, in my view this argument is
    unfounded. This aspect of Rule 9(h) describes a case where,
    as here, a party may invoke multiple potential bases for
    jurisdiction--admiralty jurisdiction and one or more other
    jurisdictional bases, i.e., federal question or diversity
    jurisdiction. Specifically, after the filing of the first amended
    complaint, the Foulks could rely on diversity jurisdiction as
    an alternative to admiralty jurisdiction. In this dual or
    multiple jurisdictional setting, Rule 9(h) does not require
    plaintiffs to invoke admiralty jurisdiction; instead, it
    provides them with a choice--they can rely either on
    19
    admiralty jurisdiction or another jurisdictional ground. The
    use of the word "may" in Rule 9(h) refers to this choice.
    Plaintiffs "may" invoke admiralty jurisdiction or in an
    appropriate case they may chose to rely on federal question
    or diversity jurisdiction. To do the latter, they merely do not
    invoke Rule 9(h). Thus, contrary to the majority's reasoning,
    the specific wording in Rule 9(h), particularly the use of
    "may," leads to the conclusion that a plaintiff specifically
    must invoke the court's admiralty jurisdiction for the case
    to be in admiralty if it is otherwise within the jurisdiction
    of the district court. "May" simply means that when both
    admiralty and other jurisdictional bases are available, the
    plaintiff has the option to select admiralty jurisdiction. See
    Fed. R. Civ. P. 9 advisory committee's note (1966
    Amendment) (noting that after the unification of the rules of
    procedure, "the pleader must be afforded some means of
    designating his claim as the counterpart of the present suit
    in admiralty, where its character as such is not clear.").
    "May" surely does not mean that a plaintiff can select
    admiralty jurisdiction either expressly or covertly and leave
    the court and the other parties guessing as to the plaintiff's
    intentions.
    Even using the more liberal standard of the majority, I
    would not hold that the Foulks, in fact, did invoke
    admiralty jurisdiction in view of the totality of the
    circumstances involved in this case. Here, as was true of
    the plaintiff in Trentacosta, the Foulks were careful not to
    invoke admiralty jurisdiction under Rule 9(h). Instead, the
    original complaint referred to the Jones Act and federal
    diversity jurisdiction, and specifically did not mention
    admiralty jurisdiction. After all, to say, as did the Foulks,
    that the "jurisdiction of this Court arises under Admiralty
    law as modified by the Jones Act" is not to invoke admiralty
    jurisdiction because, as I set forth above, a Jones Act case
    can be brought in the district court without invoking
    admiralty jurisdiction. What the Foulks did not say is that
    they are bringing the case invoking the admiralty
    jurisdiction of the district court. The Foulks' first amended
    complaint did not clarify the situation for while they did
    allege that the court's jurisdiction "arises under the
    Admiralty law," they also invoked the court's diversity
    20
    jurisdiction; and cases under admiralty law can be brought
    in a district court under its diversity jurisdiction. See, e.g.,
    Continental Cas. Co. v. Canadian Universal Ins. Co., 
    605 F.2d 1340
    , 1344 (5th Cir. 1979) ("A maritime issue may be
    raised in a diversity suit; this is one significance of the
    savings-to-suitors clause, 28 U.S.C.   1333, which permits
    a litigant to obtain federal jurisdiction over, and jury
    resolution of, an admiralty question by invoking federal
    jurisdiction on an independent basis."). Thus, this language
    in the first amended complaint could be interpreted as
    relying solely on diversity jurisdiction and not intending to
    rely on admiralty jurisdiction at all. I emphasize that the
    Foulks did not specify that they were bringing the case
    under the court's admiralty jurisdiction; and therefore, the
    majority is wrong when it indicates that the "Foulks alleged
    both diversity and admiralty jurisdiction." Slip Opinion at
    3.
    Furthermore, the Foulks requested a jury trial on the
    issues contained in the complaint. Such a request is
    inconsistent with admiralty jurisdiction, and it lends
    credence to the conclusion that the plaintiff conceived of
    the claim as being at law rather than under the district
    court's admiralty jurisdiction. See Concordia, 
    115 F.3d at 72
     ("One important factor in determining whether a
    claimant has elected to proceed in admiralty is whether he
    demanded a jury trial."); Sanders v. Seal Fleet, Inc., 
    1998 WL 136097
    , *4-5 (E.D. Tex. Mar. 23, 1998) (holding that
    the action was under the court's federal question rather
    than admiralty jurisdiction, because the plaintiff demanded
    a jury trial and his complaint invoked the court's
    jurisdiction under the Jones Act and general maritime law
    rather than specifically pleading Rule 9(h)); see also In re
    Consolidation Coal, 
    123 F.3d at 132
     (noting that " `[t]here is
    no right to a jury in actions instituted in admiralty' "
    (citation omitted)). Are we to believe that insofar as the
    Foulks invoked diversity jurisdiction they are entitled to a
    jury trial while at the same time for the same claim they are
    entitled to a bench trial in admiralty? As far as I am
    concerned, the Foulks did not invoke admiralty jurisdiction,
    and I therefore would dismiss the appeal for lack of
    jurisdiction.
    21
    To support its determination, the majority cites the
    pretrial order and Donjon's Rule 14(c) motion as evidence of
    the Foulks' selection of admiralty jurisdiction. However, this
    evidence is unpersuasive. First, the pretrial order did not
    restrict the court's jurisdiction only to admiralty, as the
    majority suggests. The order stated that the court's
    jurisdiction arose under "Admiralty Law as modified by the
    Jones Act 46 USC 688." In spite of the majority's
    assertion, this language does not demonstrate that the
    parties wished to invoke admiralty jurisdiction because as
    I noted previously, a plaintiff can bring claims under the
    Jones Act either in admiralty or at law. Moreover, as I
    explain below, the pretrial order discloses nothing about
    the Foulks' choice of jurisdiction. Therefore, although the
    statement in the pretrial order mentions admiralty law as
    modified by the Jones Act, in my view this reference
    demonstrates nothing useful for the issue at hand. I
    reiterate that there is no reason to assume that a case
    under "Admiralty Law as modified by the Jones Act" is
    under the admiralty jurisdiction.
    Second, with regard to the Rule 14(c) motion, actions by
    a defendant should not control the question of whether a
    plaintiff meant to invoke admiralty jurisdiction. It was, after
    all, Donjon and not the Foulks who brought the Jones Act
    claim to which the pretrial order refers, as the Foulks
    abandoned their Jones Act claim when they filed their first
    amended complaint. The question of what jurisdiction the
    plaintiff has invoked more properly is resolved by
    examining the pleadings and actions of the plaintiff, not the
    defendant. See generally Bryan, 
    837 F. Supp. at 641
     ("[T]he
    application of maritime law to a plaintiff's claims is a
    matter about which a plaintiff exercises a degree of
    control."). A defendant, by filing a third party complaint
    cannot change the jurisdictional basis for a plaintiff's
    complaint. Considering all of the circumstances of the case
    and giving more weight to the pleadings and actions of the
    Foulks, this evidence regarding the Rule 14(c) motion is not
    sufficient to establish that they meant to invoke the
    admiralty jurisdiction of the district court.
    In a case involving both admiralty and non-admiralty
    bases of jurisdiction, if a plaintiff wishes to invoke
    22
    admiralty jurisdiction, he or she should be required to
    make that election in a clear statement specifically invoking
    Rule 9(h) in order to avoid procedural problems that
    otherwise could arise later, such as a dispute over whether
    there should be a jury trial or, as here, over whether a
    court of appeals has jurisdiction over an interlocutory
    appeal. Is it too much to ask that a plaintiff be clear on this
    fundamental point? The adoption of my position would
    mean that disputes of the procedural and jurisdictional
    kind involved on this appeal will become of historical
    interest only. Moreover, in view of the rather limited size of
    the admiralty bar, I am confident that a rule requiring
    specific reference to Rule 9(h) would become widely known
    to interested parties and would not become a trap for the
    unwary plaintiff, particularly because a plaintiff's failure to
    invoke Rule 9(h) is likely to preserve his or her right to a
    jury trial. I repeat, however, that even applying the liberal
    rule utilized by the majority in this case, I would hold that
    the Foulks have not invoked the admiralty jurisdiction of
    the district court.
    As a result of the majority's opinion, the Foulks face a
    problem that they may not recognize they have. Both of the
    complaints and the final pretrial order preserved their
    demand for a jury trial, and presumably the parties were
    ready to proceed on that basis. However, prior to trial,
    Donjon filed this appeal, in which the Foulks joined, in
    response to the district court's partial grant of summary
    judgment. In assuming jurisdiction over this interlocutory
    appeal, the majority finds that this case rests on the
    admiralty jurisdiction of the court. As a result, presumably
    the Foulks have lost any right to a jury trial. 1 Based on
    _________________________________________________________________
    1. The majority specifically does not reach this question, instead stating
    that this issue will have to be decided "at a later date" in reliance on
    the
    "relevant legal precedent including Fitzgerald v. United States Line Co.,
    
    83 S.Ct. 1646
     (1963) and Haskins v. Point Towing Co., 
    395 F.2d 737
     (3d
    Cir. 1968)." Slip Opinion at 14 n.7. While I agree that such a
    determination will have to be made in the future, the result is
    preordained and neither Fitzgerald nor Haskins will help the Foulks to
    preserve their jury trial demand. Both Fitzgerald and Haskins involved
    Jones Act claims brought at law that had been coupled with other
    admiralty claims. See Haskins, 
    395 F.2d at 739-41
    . Because the Jones
    23
    their consistent demands for a jury trial, I cannot believe
    that the Foulks intended to abandon that request. In the
    circumstances, the Foulks by joining in this appeal may
    have brought about a classic operation of the doctrine of
    unintended consequences.
    For the foregoing reasons, the interlocutory appeal
    should be dismissed for lack of jurisdiction. Therefore, I
    respectfully dissent.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    Act claim had been brought at law, and not in admiralty, the plaintiffs
    were entitled to receive a jury trial as to all issues, including the
    pendent
    maritime claims. However, this case is fundamentally different, because
    the majority has determined that the Foulks' claims arose under the
    admiralty jurisdiction of the court. As we pointed out in Haskins "the
    Jones Act has been construed to permit a Jones Act claim for negligence
    to be maintained as an independent admiralty action." 
    Id. at 741
    . Since
    this case is governed solely by the court's admiralty jurisdiction rather
    than an alternative non-admiralty basis for jurisdiction such as existed
    in Fitzgerald and Haskins, the Foulks cannot rely on that precedent to
    demand a jury trial.
    24