Could Virginia Construction Worker Qualify for Jones Act Benefits?
A worker was killed in an industrial accident last Monday when the ten ton crane he was operating slid off the barge used to float the crane, causing the operator to plunge nearly 70 feet into Smith Mountain Lake. The incident occurred October 5, 2009, around 11:30 a.m.
Officials from the Franklin County Department of Public Safety identified the deceased as Roger Dale Goad, 55, of Henry County, VA. Goad had been employed for 34 years by Plyler Homes and Docks, who had been contracted to dismantle a private dock near a lake house. Both Goad and his son were working on the barge when the incident occurred.
"It's still under investigation, but somehow the crane came loose from the barge and sank into the lake," said department Capt. Patrick Meeks.
After nearly two hours in the water, rescue divers from the Lake Marine Volunteer Fire Rescue Department were able to locate and recover Goad’s body near the sunken crane.
Local police have initiated a full investigation into the accident. Plyler Homes and Docks stated they are working on a salvage plan to raise the sunken crane, which remains submerged in approximately 50 feet of water.
Could Goad Qualify As A Jones Act Seaman?
For those in the maritime industry, this case poses an interesting question: Could Goad’s family seek the additional remedies offered to seamen for wrongful death under the Jones Act?
According to the maritime lawyers at Arnold & Itkin LLP, the courts currently use a three-part-test to determine if someone qualifies as a Jones Act seaman.
Part One: A Worker Must Be Assigned To A Vessel On A Navigable Waterway
Several courts previously ruled that unpowered floating structures were not Jones Act vessels, but a 2005 Supreme Court decision changed the rules so that it was no longer required that a vessel be self-propelled. The Court stated that the term vessel “includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” (Stewart v. Dutra Construction Co., 125 S. Ct. 1118, 1128 (2005)). Under the current definition, barges like the one involved in this incident would be considered a Jones Act vessel.
When deciding what qualifies as a navigable waterway, courts consider the location of the body of water upon which the vessel was located and all waterways to which the body of water connects. For example, certain inland lakes now qualify as navigable waterways because they are either fed by major rivers or cross state lines, allowing for interstate or foreign commerce. With a surface area of 20,600 acres, 500 miles of shoreline and an average depth of 55 feet, Smith Mountain Lake seems to fit the generally accepted definition of ‘navigable’, however, the court’s interpretation of ‘navigable waterway’ is a continuous water system capable of sustaining interstate or foreign commerce. Therefore, since Smith Mountain Lake is wholly contained within the State of Virginia and its dams break up the continuity between this lake and the sea, it would not meet the criteria for a navigable waterway.
Part Two: A Worker Must Contribute To A Vessel’s Function or Mission
Since the mission of this particular vessel was to support a crane used to dismantle a dock, and since the deceased was the crane operator, it is likely this case would have met the second criteria.
Part Three: A Significant Amount Of The Worker's Time Must Be Spent Aboard A Vessel Performing Duties That Contribute To The Vessel's Operation Or Mission.
Without knowing the specifics of Goad’s employment with Plyler Homes and Docks, it’s not possible to conclusively prove or disprove the final portion of the Jones Act three-part-test. However, Goad had been an employee of Plyler Homes and Docks for 34 years, which demonstrates a substantial employer/employee relationship. In the case of Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), the United States Supreme Court defined a Jones Act seaman as any worker who spends 30 percent or more of his or her time in the service of a vessel or fleet of vessels under common ownership. So if it is assumed that Goad spent thirty percent of his working time on this barge or others owned by Plyler Homes and Docks, Goad would meet the third criteria.
Where does this case stand. Is there a Jones Act case pending? I have heard that Smith Mountain Lake has been considered a navigable waterway. If we consider that it once was then it could again be considered to be. Could it reasonably capable of becoming a navigable water? Probably so where do we end up on such a tragic claim?