FRANCINE CARUSO, PLAINTIFF-APPELLANT,
v.
STERLING YACHT AND SHIPBUILDERS, INC., AND JOHN ACLAND, MASTER OF THE PASSENGER VESSEL "BENGALE I", DEFENDANTS-APPELLEES
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A vessel must be engaged in commerce and transportation on navigable waters to be considered 'in navigation' for Jones Act purposes.
Francine Caruso, hired as a cook for a newly constructed vessel, was injured ashore before the vessel was licensed, tested, or delivered. The shipbuil…
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VANCE, Circuit Judge:
Francine Caruso was hired as a cook for the newly constructed vessel, “Bengale I.” The shipbuilders, Sterling Yacht and Shipbuilders, Inc., flew Caruso from Fort Lauderdale, Florida to Japan, where the “Ben-gale I” was being completed. On October 9, 1985, Caruso injured her toe while quartered ashore in a hotel. She was flown back to Fort Lauderdale and dismissed. Caruso then brought this action seeking damages for negligence under the Jones Act and also maintenance and cure under general maritime law.1 The defendants moved for summary judgment on the grounds that the “Bengale I” was not a vessel “in navigation” at the time of Caruso’s injury. The district court granted the defendant’s motion, and this appeal followed.
A claimant must satisfy three requirements in order to be a “seaman” within the purview of the Jones Act:2
First, the vessel on which the claimant is employed must be in navigation. Second, there must be more or less permanent connection with the vessel, and third, the claimant must be aboard primarily to aid in navigation.
Williams v. Avondale Shipyards, Inc., 452 F. 2d 955, 958 (5th Cir.1971); Offshore Co. v. Robison, 266 F. 2d 769, 775 (5th Cir.1959).
Our decision is predicated solely on the “in navigation” requirement.3 To be “in navigation,” a vessel must be “engaged as an instrument of commerce and transportation on navigable waters.” Williams, 452 F. 2d at 958. The record shows that the “Bengale I” was not licensed for navigation at the time of Caruso’s injury. Though launched and afloat, the vessel had not been tested in sea trials. In fact, the “Bengale I” was not delivered to her owner until May 6, 1986, nearly 7 months later. Under these circumstances, the district court correctly ruled that the “Bengale I” was not a vessel “in navigation.” See, e.g., Williams, 452 F. 2d at 958 (vessel undergoing final sea trials not “in navigation”); Reynolds v. Ingalls Shipbuilding Division, Litton Systems, Inc., 788 F. 2d 264, 267 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 278, 93 L.Ed.2d 253 (1986) (“ship undergoing sea trials is not ‘in navigation’ for purposes of the Jones Act”); Bouvier v. Krenz, 702 F. 2d 89, 91 n. 3 (5th Cir.1983) (“[sea] trials are of ships under construction, which are not yet ‘in navigation’ ”); Bohlinger v. Allied Tankships, Inc., 613 F.Supp. 161, 165 (E.D.Va.1985) (vessel not “in navigation” before sea trials and delivery); cf. Frankel v. Bethlehem-Fairfield Shipyard, 132 F. 2d 634, 635-36 (4th Cir. 1942), cert. denied, 319 U.S. 746, 63 S.Ct. 1030, 87 L.Ed. 1702 (1943) (launched but uncompleted vessel not “identified as a part of commerce and navigation”); Rogers v. M/V Ralph Bollinger, 279 F.Supp. 92, 95-96 (E.D.La.1968) (“it has never been considered the work of seamen to build their own vessels”).4
Accordingly, we hold that Caruso is not entitled to relief under the Jones Act. Since the ‘in navigation' requirement applies to claims for maintenance and cure, Caruso also is not entitled to recover under general maritime law. See Wixom v. Boland Marine & Mfg. Co., 614 F. 2d 956, 957 (5th Cir.1980).
AFFIRMED.
. Caruso named the shipbuilder and the vessel’s captain as defendants.
. The Jones Act states, in pertinent part:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law.
. "While summary judgment on seaman status in Jones Act cases is rarely proper, and even marginal cases should go to the jury, it is in some circumstances possible to rule as a matter of law that a worker is not a seaman.” Bouvier v. Krenz, 702 F. 2d 89, 90 (5th Cir.1983); Burns v. Anchor-Wate Co., 469 F. 2d 730 (5th Cir.1972). In the present case, the facts relevant to a determination of Caruso’s status under the Jones Act are undisputed, and these facts compel us to conclude, as a matter of law, that there is no coverage. See Reynolds v. Ingalls Shipbuilding Div., Litton Systems, Inc., 788 F. 2d 264, 267 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 278, 93 L.Ed.2d 253 (1986).
. The facts of the present case are in marked contrast with those of Bodden v. Coordinated Caribbean Transport, Inc., 369 F. 2d 273 (5th Cir.1966), where a rebuilt vessel was being prepaired for an imminent voyage and actually left port five days after the plaintiffs injury. Id. at 274.
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Chandris, Inc. v. Latsis, 515 U.S. 347 (U.S. 1995)…n as the definitive test for seaman status in the Fifth Circuit, has been highly influential in other courts as well. See Robertson 95; Miller v. Patton-Tully Transp. Co., 851 F. 2d 202, 204 (CA8 1988); Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F. 2d 14, 15 (CA11 1987); Bennett v. Perini Corp., 510 F. 2d 114, 115 (CA1 1975). While the Carumbo and Robison approaches may not seem all that different at first glance, subsequent developments in the Fifth Circuit’s Jones Act jurisprudence added a strict…
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Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir. 1989)…regularly assert the requirement that the seaman be serving a ship in navigation on navigable waters. E.g., Swanson v. Marra Brothers, Inc., 328 U.S. 1, 4, 66 S.Ct. 869, 870-71, 90 L.Ed. 1045 (1946); Caruso v. Sterling Yacht and Shipbuilders, Inc., 828 F. 2d 14, 15 (11th Cir.1987). It is true that in these cases the navigability of the water was not in issue, but the underlying assumption of the scope of the Jones Act is nevertheless clear. Certainly Stanfield has offered no cases extending the Jones Act t…
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McKINLEY v. ALL Alaskan Seafoods, Inc., 980 F.2d 567 (9th Cir. 1992)…F. 2d at 1327. Only the first part of the Wenzel test needs to be addressed in this case. A vessel is in navigation when “engaged as an instrument of commerce and transportation on navigable waters.” Caruso v. Sterling Yacht and Shipbuilders, Inc., 828 F. 2d 14, 15 (11th Cir.1987). Caruso relied on the Fifth Circuit case of Williams v. Avondale Shipyards, Inc., 452 F. 2d 955 (5th Cir.1971). Both Caruso and Williams involved newly constructed vessels, which had not yet undergone final sea trials. In fact, W…
Authorities Cited
- Offshore Co. & The Fid. & Cas. Co. of N.Y. v. Johnie M. Robison, 266 F.2d 769 (5th Cir. 1959)
- Bodden v. Coordinated Caribbean Transp., Inc., 369 F.2d 273 (5th Cir. 1966)
- Burns v. Anchor-Wate Co. & Brown & Root, Inc., 469 F.2d 730 (5th Cir. 1972)
- Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir. 1971)
- Manton Bouvier v. Krenz, 702 F.2d 89 (5th Cir. 1983)
- Frankel v. Bethlehem-Fairfield Shipyard, Inc., 132 F.2d 634 (4th Cir. 1942)
- Canty v. Alabama, 319 U.S. 746 (U.S. 1943)
- Posey v. Dowd, 319 U.S. 746 (U.S. 1943)
- Reynolds v. Ingalls Shipbuilding Division, 788 F.2d 264 (5th Cir. 1986)
- Wixom v. Boland Marine & Mfg. Co., 614 F.2d 956 (5th Cir. 1980)