Cleaning barge held to be a "vessel" for purposes of establishing seaman status for a barge cleaner who spent an average of 20 minutes per day aboard the cleaning barge and the majority of his time cleaning third party barges.
Ashley R. Bunch, Appellant, v. Canton Marine Towing Co., Inc., a Missouri Corporation; Sir Joseph, an inland river towboat, Her Engines, Boilers, etc., Appellees.
No. 04-1292
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
419 F.3d 868; 2005 U.S. App. LEXIS 18017
April 14, 2005, Submitted
August 23, 2005, Filed
PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Missouri. Bunch v. Canton Marine Towing Co., 2004 U.S. Dist. LEXIS 28412 (E.D. Mo., Jan. 6, 2004)
DISPOSITION: Reversed.
OPINION: Ashley Bunch was injured aboard the M/V Sir Joseph, a tugboat owned by Bunch's employer, Canton Marine Towing Company, Inc. Bunch sued Canton and the Sir Joseph under section 33 of the Merchant Marine Act of 1920, 46 U.S.C. app. ยง 688, commonly known as the Jones Act. The district court granted summary judgment to the defendants, concluding Bunch was not a "seaman" covered by the Jones Act, because Bunch "simply did not have a substantial connection to a vessel in navigation." We reverse. Bunch worked as a barge cleaner at Canton's Missouri facility, a cleaning barge moored to the bed of the Missouri River. Almost every day, Bunch was ferried in the morning to the cleaning barge from Canton's Illinois facilities, then back for lunch and again to return home in the evening, usually aboard the Sir Joseph. On most days Bunch spent twenty minutes aboard the Sir Joseph. Cleaning third-party barges consumed Bunch's normal workday aboard the cleaning barge. Bunch cleaned barges on all but approximately ten of the 242 days he worked during his first year with Canton. On those approximately ten days, Bunch worked as a deckhand for a few hours on the Sir Joseph. Viewing the evidence most favorably to Bunch, for summary judgment purposes, the district court assumed Bunch spent, at most, ten percent of his work time as a deckhand. We hold the cleaning barge was a vessel and, thus, a vessel in navigation under the Jones Act. In Templeton, after noting the Rand had inoperable engines and would need to be towed if she were to be moved, we concluded such facts were insufficient to strip the Rand of vessel status. Templeton, 378 F.3d at 850-52. The Rand also was connected to spud poles by bolts, "which could easily be removed, permitting the Rand to be towed because she floated on her own, which [was] sufficient to bestow 'vessel' status on her." Id. at 852. The undisputed facts of this case do not show the cleaning barge was permanently moored or anchored to the river bed, and the barge had been moved from its mooring to travel across the river during the time Bunch worked for Canton. Although the cleaning barge was secured in position, strong currents would shift the barge, belying the permanency of its mooring. Nor does the evidence show the barge had been taken out of service or rendered practically incapable of maritime transportation.
