Wallace S. Harwood, Jr. v. Partredereit Af 15.5.81, Wallace S. Harwood, Jr. v. Partredereit Af 15.5.81 , 944 F.2d 1187 ( 1991 )

OPINION

CHAPMAN, Senior Circuit Judge:

Plaintiff Wallace Harwood (“the pilot” or “Harwood”), a harbor pilot, was injured while attempting to board the defendant’s ship, M/Y CAPTAIN MOST. Harwood brought suit in federal court alleging causes of action under the Jones Act and general maritime law. The district court entered summary judgment for defendant on the Jones Act claim, and, after being instructed on negligence and unseaworthiness, the jury returned a verdict for the plaintiff in the amount of $700,000.00. Defendant appeals claiming that Harwood was covered by the Longshore and Harbor Workers’ Act and it was prejudicial error to instruct the jury that he was owed the warranty of seaworthiness by the defendant.

At the time of the accident, Harwood was licensed as a pilot by the Commonwealth of Virginia for the waters from Cape Henry to Newport News and on the Elizabeth River. He was a member and part owner of the Virginia Pilot Association but functioned as an independent contractor. Pilotage in Virginia is governed by state statute. See Va.Code Ann. §§ 54.1-900 et seq. (1988). These statutes require that a vessel owner accept the first Virginia pilot to offer his services or face a criminal penalty. Va.Code Ann. § 54.1-927 (1988).

On December 17, 1987, the M/V CAPTAIN MOST, a Danish flag vessel home-ported in Svendborg, Denmark, called at Hampton Roads, Virginia in the early morning hours. Plaintiff was the first pilot to offer his services to pilot the ship into Hampton Roads. While attempting to board the vessel, the pilot ladder broke and Harwood fell into the ocean. During the fall or while being pulled into the pilot launch, Harwood injured his shoulder severely enough to prevent him thereafter from working effectively as a pilot.

Harwood sued in the U.S. District Court for the Eastern District of Virginia alleging causes of action under the Jones Act and general maritime law. The district court granted defendant’s motion for summary judgment on the Jones Act claim but denied defendant’s summary judgment motion on the unseaworthiness claim. The case was tried on allegations of negligence and unseaworthiness. At the conclusion of the plaintiff’s case, defendant moved for a directed verdict, arguing that as a matter of law, Harwood was not entitled to the warranty of seaworthiness and that the evidence was insufficient to support a finding of negligence. The district court denied the motion. At conclusion of defendant’s case, both parties moved for a directed verdict. The motions were denied and the case went to the jury. Over the defendant’s objection, the court instructed the jury on Harwood’s unseaworthiness claim as follows:

The claim of negligence and the claim of unseaworthiness in this case are separate claims, and you must consider them separately, in accordance with these instructions.

The plaintiff would be entitled to the warranty of seaworthiness. Under the maritime law the shipowner or operator owes to the plaintiff a nondelegable duty to keep and maintain the ship and all decks [in a seaworthy condition]_ Liability for an unseaworthy condition does not in any way depend upon negligence or blame or fault. That is to say, the owner or operator of a ship is liable for injuries and consequent damage proximately caused by an unseaworthy condition existing at any time, even though the owner or operator may have exercised due care under the circumstances and may have had no notice or knowledge of the unseaworthy condition which proximately caused the injury or damage.

The jury returned a verdict for Harwood in the amount of $700,000.00, and defendant timely appealed to this court.

This appeal presents two issues: (1) whether the district court erred in instructing the jury that plaintiff, a compulsory pilot, was owed the warranty of seaworthiness;¹ and (2) whether this seaworthiness instruction constituted prejudicial error. After considering the record and the applicable law, we conclude that it was prejudicial error to instruct the jury on the seaworthiness claim. We, therefore, reverse the judgment of the district court and remand this case for proceedings consistent with this opinion.

I. Warranty of Seaworthiness

The Longshore and Harbor Workers’ Compensation Act (“LHWCA” or “the Act”) applies to “any person engaged in maritime employment” but does not apply to, among others, “a master or a member of a crew of any vessel.” 33 U.S.C. § 902(3) (1988). Workers covered by the LHWCA are not entitled to a warranty of seaworthiness. 33 U.S.C. § 905(b) (1988).

A. “Maritime Employment”

Prior to 1972, coverage by the LHWCA was governed by a single situs requirement. Director, Office of Worker’s Compensation Programs v. Perini N. River Associates, 459 U.S. 297, 298-301, 103 S.Ct. 634, 637-639, 74 L.Ed.2d 465 (1983). This requirement extended LHWCA coverage only to those workers whose “disability or death resulted] from an injury occurring upon the navigable waters of the United States (including any dry dock).... ” LHWCA of 1927, ch. 509, § 3(a), 44 Stat. 1426. The Supreme Court determined that a worker who, in the course of his duty, was required to go on navigable waters and who suffered an injury while in that historically maritime locality, was covered by the pre-1972 LHWCA. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). Thus, coverage under the 1927 Act required no inquiry into “ ‘what [the employee] was doing (or supposed to be doing) at the time of his injury.’ ” Perini, 459 U.S. at 311, 103 S.Ct. at 644.

Under the 1972 amendments to the LHWCA, this relatively simple situs test was modified. The 1972 amendments required that, to be entitled to benefits, a disabled employee must (a) be disabled as the result of “an injury occurring upon the navigable waters of the United States,” 33 U.S.C. § 903(a), the “situs” test; and (b) be engaged in “maritime employment” at the time of the injury, 33 U.S.C. § 902(3), the “status” test. Following enactment of the 1972 amendments, the Supreme Court decided that the amendments replaced the single situs requirement with a two-part situs and status standard. P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979); Northeast Marine Terminal Company, Inc. v. Caputo, 432 U.S. 249, 264-65, 97 S.Ct. 2348, 2357-58, 53 L.Ed.2d 320 (1977). Now both the status requirement, as defined by section 902(3), based on the nature of the job, and the situs requirement, as defined by section 903(a), based on location, must be satisfied for the LHWCA to apply. Id.

It is undisputed that Harwood was injured on the “navigable waters” of the United States, so at the time of his injury, he was engaged in employment that was compensable under the pre-1972 LHWCA. See Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). However, Harwood contends that as a pilot he was not engaged in “maritime employment” as required by the 1972 amendments to LHWCA. Harwood argues that while “maritime employment” includes loading and unloading vessels, ship repair, or similar work, it does not include pilotage. The Supreme Court in Perini considered this argument and rejected it. 459 U.S. at 315, 103 S.Ct. at 646. In Perini, the plaintiff was injured while employed as a construction worker aboard a barge upon the actual navigable waters of the United States. The Court held that the construction worker was covered by the LHWCA even though his employment was not “maritime” in nature, because it was sufficient that he was injured on the navigable waters of the United States in the course of his employment. Id. at 324, 103 S.Ct. at 650. The Court observed that, prior to the 1972 amendments, the LHWCA covered only workers who were injured on the navigable waters of the United States and that the amendments expanded coverage to include workers injured while ashore if the worker was engaged in “maritime employment.” Thus, the plaintiff in Perini qualified for pre-1972 coverage under the LHWCA. Since the amendments were enacted to expand the coverage of the LHWCA to shore side workers, and not to narrow its coverage, the Court ruled that the plaintiff was covered by the LHWCA regardless of the nature of his employment because he was injured on the navigable waters of the United States. Id. at 323-24, 103 S.Ct. at 650-51.

The Supreme Court reaffirmed this approach to LHWCA coverage in Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985). Gray was a welder and was injured while employed on a stationary drilling platform within Louisiana’s territorial waters. The Court, finding that the drilling platform was an island, analyzed the limits of LHWCA coverage under the test for landward coverage, and concluded that since the welder’s work was “far removed from traditional LHWCA activities,” 470 U.S. at 425, 105 S.Ct. at 1428, and therefore not maritime in nature, the welder failed the status requirement for landward coverage. 470 U.S. at 424-26, 105 S.Ct. at 1427-29. The Court qualified this holding as follows:

This view of “maritime employment” does not preclude benefits for those whose injury would have been covered before 1972 because it occurred “on navigable waters.” Director, OWCP v. Peri-ni North River Associates, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983).

[W]e point out that [Perini ] was carefully limited to coverage of an employee “injured while performing his job upon actual navigable waters.” 459 U.S. at 299, 103 S.Ct. at 638.

Herb’s Welding, 470 U.S. at 424, n. 10, 105 S.Ct. at 1428, n. 10.

We hold that seaward coverage under the LHWCA does not depend on the nature of the worker’s duties. The 1972 amendments to LHWCA do not affect the pre-1972 meaning of “maritime employment” as to workers injured on navigable waters of the United States, because one injured on navigable waters in the course of his employment satisfies both the pre- and post-1972 LHWCA meaning of “maritime employment.” When the injury occurs on navigable waters, it satisfies both the “situs” and the “status” test. Therefore, Harwood, who was injured on the navigable waters of the United States, was engaged in “maritime employment.”

B. “Master or Member of a Crew”

The pilot also contends that he was a “master or member of a crew” and therefore specifically excluded from LHWCA coverage by 33 U.S.C. § 902(3)(G). The test to be applied in ascertaining whether a person is “a member of a crew” for purposes of LHWCA is the same as applied in determining whether a person is a “seaman” for purposes of Jones Act jurisdiction. Applying such test, we find that the pilot in this case is not a “master or member of a crew” and is therefore covered by the LHWCA.

As the Fifth Circuit noted in Hardaway Contracting Company v. O’Keeffe, 414 F.2d 657 (5th Cir.1968), “[f]or a time there seemed to be the possibility that the Supreme Court recognized that the term ‘members of a crew of a vessel,’ as used in the [LHWCA] might be a more restricted term than the word ‘seaman’ as used in the Jones Act.” Id. at 659. However, based upon the Supreme Court’s decisions in Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946), and Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), it has become clear that “seaman,” as used in the Jones Act, and “member of a crew,” as used in the LHWCA, are equivalent terms. See Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977, 982-83 (5th Cir.1987), cert. denied, 484 U.S. 1059, 108 S.Ct. 1013, 98 L.Ed.2d 978 (1988); Bertrand v. Int’l Mooring & Marine Inc., 700 F.2d 240, 243-44 (5th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984); McDermott Inc. v. Boudreaux, 679 F.2d 452, 457-58 (5th Cir.1982); Travelers Ins. Co. v. Belair, 412 F.2d 297, 302 (1st Cir.1969); Hardaway Contracting Co. v. O’Keeffe, 414 F.2d 657, 659-60 (5th Cir.1968).

In considering plaintiffs Jones Act claim, the district court correctly applied the test for “seaman” or “member of a crew” status articulated by this court in Stephenson v. McLean Contracting Co., 863 F.2d 340, 341 (4th Cir.1988), cert. denied 490 U.S. 1085, 109 S.Ct. 2110, 104 L.Ed.2d 671 (1989):

[A worker] must be a member of a crew of a vessel ... to be a “seaman” under the coverage of the Jones Act.... [There are] three requirements for a worker to be considered “a member of a crew”: 1) the worker must be more or less permanently attached to a vessel or fleet; 2) the worker must be one whose duties serve naturally and primarily as an aid to navigation in the broadest sense; and 3) the vessel must be in navigation.

Stephenson, 863 F.2d at 341. The district court correctly determined that Harwood failed the first prong of this test, because he was not “more or less permanently attached” to the M/V CAPTAIN MOST, and the district court correctly entered summary judgment for defendant on the Jones Act claim. The district court should have applied the same reasoning to plaintiff’s seaworthiness claim. Just as the pilot is not a “seaman” for purposes of the Jones Act, he is not a “member of a crew” under the LHWCA.² Therefore, the pilot cannot avail himself of section 902(3)(G)’s “master or member of a crew” exclusion from coverage under the LHWCA. Furthermore, since section 905(b), 33 U.S.C. § 905(b), provides that workers covered by the LHWCA are not entitled to the warranty of seaworthiness, the district court erred in instructing the jury on plaintiff’s seaworthiness claim.

II. Effect of Improper Jury Instruction

We must determine whether the district court’s seaworthiness instruction constituted prejudicial error. The pilot contends that the instruction was harmless error, but we disagree. The district court instructed the jury on two independent theories of liability (negligence and unseaworthiness) and the jury returned a general verdict in favor of the plaintiff for $700,-000.00. Since the defendant may be liable only under a negligence theory, we must closely examine the possible impact of the district court’s improper seaworthiness instruction with its no-fault standard of liability. We have held that when a party is prejudiced by an improper instruction, this court should reverse and remand the case for a new trial even when there may be enough evidence to support the jury’s verdict on other grounds. Hodges v. Evisea Maritime Co., 801 F.2d 678, 687 (4th Cir.1986), cert. denied, 480 U.S. 933, 107 S.Ct. 1572, 94 L.Ed.2d 764 (1987). When a jury is instructed on two theories of liability, one which is proper and the other which is not, the court must remand the case for a new trial unless it is “ ‘reasonably certain’ that the jury’s verdict was not influenced by the erroneously-submitted ... theor[y].” Woods v. Sammisa Co., 873 F.2d 842, 853-54 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 853, 107 L.Ed.2d 847 (1990); see also Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 742 (5th Cir.1980). Here, the jury returned a general verdict against the defendant. We do not have the benefit of answers to interrogatories accompanying the verdict and cannot determine on which theory the jury reached its decision. There is a significant risk that the jury, having been improperly instructed on the seaworthiness claim, relied upon this erroneous instruction in arriving at its verdict. Therefore, we find that the district court’s seaworthiness instruction constitutes prejudicial error.

III.

For the foregoing reasons, we find that the district court committed prejudicial error in instructing the jury on plaintiff’s seaworthiness claim. Accordingly, we reverse the judgment of the district court and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

1 . Harwood suggests that he is entitled to the general maritime law warranty of seaworthiness regardless of the statutory analysis set out below. He relies on Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), for this proposition. His reliance is misplaced because Congress specifically overruled Sieracki with the 1972 amendments to the LHWCA. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 262, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979) (the 1972 amendments intended to "overrule” Sieracki)-, 1972 U.S.Code Cong. & Admin.News 4702. Furthermore, this court has repeatedly ruled that the 1972 amendments "abolished” the Sieracki form of action. See e.g., United States Lines, Inc. v. United States, 593 F.2d 570 (4th Cir.1979).

2 . Since this case was argued, the Supreme Court has had occasion to consider the definition of "master or member of a crew” under the LHWCA. In McDermott Int’l, Inc. v. Wilander, — U.S. -, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991), the Court stated that "master or member of a crew" should be defined "solely in terms of the employee’s connection to a vessel in navigation." Id. at -, 111 S.Ct. at 816-818. Thus, the Court reinforced the importance of the first prong of the Stephenson definition while expressly “jettison[ing] the aid in navigation language" included in Stephenson's second prong. Id. Our holding in this case is consistent with the Court’s opinion in McDermott. Since Har-wood was not “more or less permanently attached” to the M/V CAPTAIN MOST, he cannot satisfy the definition of "master or member of a crew” under the LHWCA.