Transcript

IN THE SUPREME COURT OF THE UNITED STATES

WILLARD STEWART, Petitioner v. DUTRA CONSTRUCTION COMPANY.

No. 03-814

November 1, 2004

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:01 a.m.

APPEARANCES: DAVID B. KAPLAN, ESQ., Boston, Massachusetts; on behalf of the Petitioner.

LISA S. BLATT, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioner.

FREDERICK E. CONNELLY, JR., ESQ., Boston, Massachusetts; on behalf of the Respondent.

PROCEEDINGS

(11:01 a.m.)

JUSTICE STEVENS: Mr. Kaplan, you may proceed.

ORAL ARGUMENT OF DAVID B. KAPLAN

ON BEHALF OF THE PETITIONER

MR. KAPLAN: Justice Stevens, and may it please the Court:

I received word that the Court is interested in 46 U.S.C. 801, and I intend to focus my attention on that before I get into my argument.

46-801 is referred to as the Shipping Act, and it was enacted in 1916 and the amendment in 1918. At that time, the United States Government was involved in a war and we were interested in developing the merchant marine for purposes of transporting cargo, equipment, and people back and forth. And so the amendment that was filed was fashioned after exactly 1 U.S.C. 3, but it had some additional features involved, one of which was that a vessel that was under construction was included as part of the act, one of which was if the owner intended to use the vessel for transportation, it was included. It is under no circumstances affecting a Jones Act claim because the Jones Act requires, number one, a vessel in navigation and it can't be on the dock or being under construction, and if it was under construction, it wouldn't have a crew.

So under the circumstances, with all due respect, it is our judgment that we -- we would win on both sides. The Super Scoop would indeed, qualify under that act as well as under 1 U.S.C. 3. But we think that this goes a little too far and not appropriate.

JUSTICE O'CONNOR: Is the Super Scoop practically capable of transportation on water, counsel?

MR. KAPLAN: It is more than practically capable, it actually is -- actually transports its equipment and its personnel at work and its --

JUSTICE KENNEDY: Didn't it come from the west -- did it come from the west coast originally?

MR. KAPLAN: Indeed, it did. It came through the west coast, unmarried, however. It came from the west coast through Panama, through the Gulf, up the east coast, and, sir, if anything had occurred on that trip, that -- that would have been considered a vessel. However, when it came in to Boston --

JUSTICE GINSBURG: But there was nobody on it in that trip.

MR. KAPLAN: Sorry.

JUSTICE GINSBURG: There was nobody -- there was no one on it --

MR. KAPLAN: In fact, it's unmanned.

JUSTICE GINSBURG: -- to be injured.

MR. KAPLAN: There was nobody injured and unmanned, yes, indeed.

But what -- what I'm saying is historically there has never been a decision in which a dredge was not considered a vessel until this case that we appear here now.

Of course, I'm here to seek to have you overrule the decision that was rendered. But more importantly, we are having a morass in the lower courts, and I'm here to try and persuade this Court to establish, once and for all, that there is a standard, that there is a definition for the use of the word vessel under the Jones Act.

Now, in 1920, when the Jones Act was enacted, there was no reference to the use of the word vessel, and we know that when that happens, we have to seek to find what was the meaning, what was the established meaning at that time. And the way we do that is to look first to statutory law, and in addition we look to case law.

The statutory law is clear. In 1873 in the revised statutes it makes it very clear that section 3 describes a vessel is any watercraft that -- or other artificial contrivance used, or capable of being used, for transportation on water. With that standard in 1873, this Court in 1907 tried the case of Ellis v. the United States and did apply that revised statute and decided that the dredges that were working in the city of -- in the Boston Harbor were indeed vessels and that the --

JUSTICE SCALIA: Well, now, that -- that definition, used or capable of being used -- right, now.

After one of the hurricanes, I saw a -- a tugboat that had just been washed up on shore down in the Gulf. What if somebody -- some enterprising person had fitted that out like a -- like a diner, you know, a -- a restaurant and they have staff in the diner and they're serving the meals off of this boat? Now, the boat, apart from the fact that it's a couple of hundred yards inland, is capable of being -- still capable of being used. Are the employees of that diner covered by the Jones Act?

MR. KAPLAN: Very interesting question, Justice Scalia. However, this Court --

JUSTICE SCALIA: It -- it goes to whether we want to use, you know, section 3 as -- as our definition.

MR. KAPLAN: This Court seemed to have focused right on point in the cases of Cope in -- Cope was early, 1903, and in the case of Evansville in 1926 when they added the two words, practically capable. The Cope case was a drydock and it was run into by somebody and they sought damages. And the Court -- this Court said, wait a minute. In that case, that's a drydock. It goes up and down. It doesn't navigate. It doesn't transport people or cargo over water. So they said it's not practically capable of fulfilling under the revised statute.

The easiest case is 1926 when this Court again in Evansville made it very clear that a wharfboat, which on occasion was taken out. Once a year, I think the evidence is, they would take it out and move it back. But it was affixed to the land. It had its telephone. It had its sewage. It had all connections to the land. And this Court again used 1 U.S.C. 3, but did say that it wasn't practically capable of performing.

JUSTICE O'CONNOR: Is that what we would say about all these gambling casino boats that are parked on the side of the Mississippi River?

MR. KAPLAN: Your Honor, these are a problematic case, and the whole thing is determined on whether or not it's in navigation. If a vessel is --

JUSTICE O'CONNOR: What's your answer? There are lots of these gambling boats that are parked --

MR. KAPLAN: If the --

JUSTICE O'CONNOR: -- along the side of the river.

MR. KAPLAN: If the gambling boat has lost its ability to be in navigation, if it's affixed to the land, if it has connections to the land, if it doesn't expect to go into navigation, it is out of navigation. It's owner has taken that vessel from a navigable vessel into out of navigation.

JUSTICE KENNEDY: And then what is the standard you use, the definition to use to get to that result? Is this your practically point again?

MR. KAPLAN: Say that again, please.

JUSTICE KENNEDY: You've given us the answer. What's the standard that you use to get to that answer? Do you go back to the definition that it -- it cannot practicably be used?

MR. KAPLAN: Well, the standard that I'm seeking to have the Court employ is 1 U.S.C., section 3, which says, any -- a vessel is any watercraft or other artificial contrivance used, or capable of being used --

JUSTICE KENNEDY: And then -- and then the riverboat -- it depends on how -- how permanently it's affixed to the land. Suppose it stays there for 10 years. It -- it can go anytime, but it stays there for 10 years.

MR. KAPLAN: If in fact it stays there for 10 years and it does not move, that's evidence that the owner intended that vessel to lose its position in navigation.

JUSTICE KENNEDY: So there's an intent component to your test now?

MR. KAPLAN: There -- there -- technically one could say break the bonds that hold it to the dock and then take it out and use it because once a vessel, always a vessel? The answer is no. According to this Court, this Court said --

JUSTICE GINSBURG: Mr. Kaplan?

MR. KAPLAN: -- when it's not practically capable of doing it.

JUSTICE GINSBURG: Mr. Kaplan, you said two things and I -- I'm wondering these are separate or they're really one concept. I thought your answer was going to be to the boat that is used as a diner or to the casino that's tied up to the land, that it's not in navigation. It may satisfy the 1 U.S.C. definition of vessel, but it has to be in navigation to be covered by the Jones Act. So I thought that's what you would -- something is taken out of navigation would not qualify.

MR. KAPLAN: The answer is no. It -- it does not qualify if it's removed from navigation. Once the vessel is taken out of navigation, as in Justice Scalia's situation where that vessel is on the land, it is being used as a completely different --

JUSTICE SCALIA: So you say it is a vessel. I thought your answer before was that it was not a vessel because it's not practically capable of being used.

MR. KAPLAN: I say it's not a vessel. It's out of navigation.

JUSTICE SCALIA: I -- I like Justice Ginsburg's answer better.

(Laughter.)

JUSTICE SCALIA: It is a vessel but it's not in navigation. Then you could stick with the -- with the section 3 definition. It's capable of being used, so it's a vessel, but it's not --

JUSTICE KENNEDY: But then the question is whether or not it's in navigation at the time of the accident.

MR. KAPLAN: And that only applies --

JUSTICE KENNEDY: And -- and that is a rule that, I take it, you do not wish us to adopt, or maybe you do.

MR. KAPLAN: I'm trying to establish that if it's in navigation, then it is a vessel. If the owner of that vessel removed it from any chance of navigation, made it a different kind of a vessel, it is no longer in navigation. It remains a vessel, but it's not a vessel in navigation.

JUSTICE SOUTER: No, but doesn't -- doesn't that put you right back in the problem, the original problem, with -- with the riverboat? If all it is is tied up, it isn't permanently taken out of navigation. It isn't precluded. All they've got to do is cast the lines off and it's out in the water so that the riverboat is the vessel and presumably we've got seamen working on it.

MR. KAPLAN: Justice Souter, if on that situation where all they have to do is cast the lines off and go out to sea, then of course it remains a vessel, and it remains in navigation. And it is -- it fits all the elements of the requirements. But if that --

JUSTICE SOUTER: So you're saying -- and I -- I don't mean to disagree with you. You're saying, yes, there are going to be a few tough results under this definition.

MR. KAPLAN: There may be, but there's got to be some practically capable influence that this Court has already focused on to say whether that particular vessel is practically capable of being in navigation. If it's out of navigation, it's never going to be back in navigation, and there's nothing more that's going to happen to that as a vessel, then of course it's no longer a vessel that would qualify.

JUSTICE BREYER: So -- so what is -- I see the First Circuit as trying to grapple with the very question you're raising, which is I think difficult.

MR. KAPLAN: Yes.

JUSTICE BREYER: Of course, it seems to me fine, let section 3 apply. No problem so far with me. But that is so broadly stated that if you read it literally, my garage door is a boat or a vessel because, after all, it's capable of being used in navigation, if worst came to worst. And now you're trying to narrow it to get out of that absurd result. Well, so did the First Circuit. That's what they were trying to do, and you got caught up in it.

But that's -- so -- so what -- that's why I think we're struggling with the words, and -- and perhaps practically -- if you mean by practically that it is not practically capable of navigation, even though it really is, if it just hasn't been used for navigation for a long, long time and has connections to the land like Jimmy's Harborside probably or -- or --

MR. KAPLAN: Like the establishments from the --

JUSTICE BREYER: What?

MR. KAPLAN: -- pier 4, yes.

JUSTICE BREYER: Yes, yes, or one like that.

But is -- are those the words? Do we need some other words as well? We say practically capable but practically capable has a technical meaning here that it means if there's close to permanent connection to the land, it doesn't apply?

MR. KAPLAN: Justice Breyer, we're talking primarily of Jones Act.

JUSTICE BREYER: Yes.

MR. KAPLAN: Jones Act requires a relationship between the worker and the vessel. So --

JUSTICE BREYER: So could we say -- could we say that, as well, it must be unlike my garage door? A, it must be a -- a structure that normally would have a crew or that -- a significant amount of the time. We would have a connection to the water. It would be capable of having a master or crew. What about that?

MR. KAPLAN: This Court has already established --

JUSTICE BREYER: Yes.

MR. KAPLAN: -- what the standards are for Jones Act, whether a person qualifies. There are filters between whether a person is a Jones Act seaman or not. For example, there has to be a vessel. There has to be a vessel in navigation. There has to be a economic relationship between the worker and his vessel and he has to contribute towards the mission or to the function of that vessel. He has to, more importantly, have a substantial relationship to his vessel, both with respect to duration and with respect to nature.

JUSTICE SOUTER: When you say the function of the vessel, do you mean the function of the vessel in its transportation function?

MR. KAPLAN: Yes.

JUSTICE SOUTER: So that would be the answer to the riverboat problem. You'd say sure, if the -- if the riverboat is capable simply of being let go in the water by casting off lines, the riverboat is a vessel. But you don't have to worry about turning all the -- the croupiers and the waiters into seamen because they're not contributing to the transportation function of the vessel.

MR. KAPLAN: Precisely.

JUSTICE SOUTER: I mean, is that the way out of the problem?

JUSTICE SCALIA: Precisely? So then the --

MR. KAPLAN: There is a safeguard between the vessel and whether a person qualifies as a Jones Act seaman on that vessel.

JUSTICE SCALIA: So you -- you think that the person who operates the dredge, since he's not navigating the vessel, is not covered by the Jones Act?

MR. KAPLAN: Oh, I do not. I do not, indeed. I say --

JUSTICE SCALIA: You do not what? Do not think he's covered by the Jones Act?

MR. KAPLAN: I say he's covered by the --

JUSTICE SCALIA: He is covered. Well, then why isn't the croupier covered?

MR. KAPLAN: Why isn't what?

JUSTICE SCALIA: Why isn't the croupier covered, you know?

MR. KAPLAN: Is the croupier contributing to the function of the vessel?

JUSTICE SCALIA: That vessel's function is gambling. He sure is.

MR. KAPLAN: It is.

JUSTICE SOUTER: Does -- look, does the -- does the person in charge of the dredge control this process of pulling against anchor lines that moves it 8 feet or whatever it is?

MR. KAPLAN: The manner in which the dredge -- this dredge worked -- by the way --

JUSTICE SOUTER: No, but if you can give me a yes or no answer, give me a yes or no answer.

MR. KAPLAN: Yes.

JUSTICE SOUTER: Okay.

MR. KAPLAN: That man controls not only --

JUSTICE SOUTER: So that's why he's different from the croupier then, isn't he?

MR. KAPLAN: The croupier does not control the motion.

JUSTICE SOUTER: Right, and the -- the guy in charge of the dredge does control the movement of it.

MR. KAPLAN: Absolutely.

JUSTICE SCALIA: What if you have a very complicated dredge and it takes two people? One of them does nothing but -- but operate the steam shovel that pulls up the goop and puts it in the -- in the barges. Okay? And the other one moves the dredge. You say the one is -- is covered by the Jones Act and the other one isn't? No, it can't be. If the function of the vessel is dredging, anybody who is performing that function of dredging is covered by the Jones Act. Don't you believe that?

MR. KAPLAN: I do believe that.

JUSTICE SCALIA: Of course, you do. So the croupier is --

(Laughter.)

JUSTICE SOUTER: Then what do you -- then what do you do with the croupier? You can't have it both ways.

MR. KAPLAN: Well, if the croupier is participating in the navigation of the vessel, we don't care anymore.

JUSTICE SOUTER: He's not participating in the navigation of the vessel.

MR. KAPLAN: Well --

JUSTICE SOUTER: He's doing whatever croupiers do. I don't know.

(Laughter.)

JUSTICE SOUTER: No, but --

MR. KAPLAN: They don't hand me any money, I'll tell you.

What I'm trying to establish here is that there really is a distinction between the law applicable to whether or not there is a vessel, and I'm suggesting that 1 U.S.C. clearly describes what a vessel is and should be for Jones Act purposes.

The second part of the issue is whether or not the individual qualifies and is warranted to have the Jones Act coverage. So as to the vessel -- as to this coverage, we know, through Wilander and through Chandris, this Court has established some very sensible and good standards by which a person can or cannot be a -- a Jones Act seaman.

Now the only thing that's necessary is we have to round the circle up to determine what is a vessel for Jones Act purposes. 1 U.S.C. seems to satisfy it.

It's important to note that in this particular case this is a Coast Guard-certified, inspected vessel. This vessel is -- carries -- it has a 1290 ton itself and it carries cargo of 466 ton. It is -- it has navigation lights. It has to be ballasted. It has to be load-lined. When it goes to work, the way in which it moves is as follows. The tugs take the anchors out 50 feet. Now, as the operator is using that bucket to dump into the scows, he's also handling the -- the vessel is also moving through its own deck winches. They spool up on their own winches. So in addition to where he's digging, they're also moving so that instead of just digging a hole, they're digging the trench.

So under all the circumstances, this Super Scoop, because it has a crew, a captain and a crew of 10, because they have to wear lifesaving devices, because they have a -- a standby vessel for safety purposes right there by order of the Coast Guard, because it is exposed to all the weather and navigation problems that exist in the -- in Boston Harbor, because the risks are inherent in this kind of work, this man qualifies as not only a vessel but as a Jones Act seaman.

JUSTICE GINSBURG: Is the scow a vessel too?

MR. KAPLAN: I'm sorry. I didn't hear you.

JUSTICE GINSBURG: The scow. The --

MR. KAPLAN: Oh, the scow.

JUSTICE SCALIA: That's easy.

MR. KAPLAN: Well, what happened in this one, if Your Honor please, is when -- this was a collision at sea. Client was aboard the scow when it collided with the Super Scoop and he was tossed down a 10-foot --

JUSTICE GINSBURG: I know the circumstances of the accident. And you're -- you're discussing whether Super Scoop was a vessel. I'm asking if the scow where the injury occurred is a vessel.

MR. KAPLAN: Oh, indeed. The scow is -- is what they put the fill in, and as differentiated from a barge, a scow has the ability to open up its bottom to let all the fill out when they get out to sea.

JUSTICE STEVENS: Yes, but you haven't told us whether you think it was a vessel or not.

MR. KAPLAN: Pardon?

JUSTICE STEVENS: Was -- was it a vessel?

MR. KAPLAN: The scow is a vessel.

JUSTICE STEVENS: The scow was.

MR. KAPLAN: The scow is absolutely a vessel.

JUSTICE SCALIA: Oh, that's not even close.

MR. KAPLAN: Not even --

JUSTICE SCALIA: I mean, it carries all this goop somewhere else to -- to dump it. Right?

MR. KAPLAN: They had to move from here to somewhere else. That's --

JUSTICE GINSBURG: Then explain to me why --

MR. KAPLAN: So did the Super -- sorry.

JUSTICE GINSBURG: -- why it wasn't the vessel that counts. If it's a vessel and it is in fact the place where he was injured and it was moving, it -- that would be an easy case, but somehow you have to deal with the Super Scoop, and I'm wondering why.

MR. KAPLAN: Well, the Super Scoop was not moving at that moment, but the scow was moving --

JUSTICE GINSBURG: Well, why don't you just say the scow was a vessel? End of case. The scow was a vessel. It was moving. That's where he was injured.

MR. KAPLAN: I would take that, Your Honor, but I would like to extend it to get a status -- a statement from this Court so that we can remove the indecisions, the silly tests that the lower courts have been creating for what is a vessel and what is not a vessel.

JUSTICE STEVENS: Thank you, Mr. Kaplan. Thank you. Your time is up.

MR. KAPLAN: Oh, my. Thank you.

JUSTICE STEVENS: Ms. Blatt.

ORAL ARGUMENT OF LISA S. BLATT

ON BEHALF OF THE UNITED STATES,

AS AMICUS CURIAE, SUPPORTING THE PETITIONER

MS. BLATT: Thank you, Justice Stevens, and may it please the Court:

Justice Ginsburg, I take it the reason that the scow was not relied on is because the petitioner worked 99.9 percent of his time on the Super Scoop and petitioner never made the argument that he had a connection to the scow.

But this case, the dredge, the Super Scoop, was a vessel in navigation and it's an easy case under both standards because it remained in service as a means of carrying its workers and equipment as it moved along the Boston Harbor.

JUSTICE KENNEDY: Do you think we need to use the word practical or practically in section 3?

MS. BLATT: Yes. I mean, you've -- you've read it in into Evansville and Cope, the -- the drydock case, but it's -- it's basically referring to any mobile watercraft that is practically capable of moving either cargo or people.

JUSTICE SCALIA: Why is that reading anything in? I mean, do -- do you think if -- if you were not practically capable, you would be capable?

MS. BLATT: I don't -- I don't think it much --

JUSTICE SCALIA: I don't regard that as a reading in at all. I mean, capable means capable. You're either capable or not. If you practically can't be moved, your not capable.

MS. BLATT: That's fine, and I think -- like I said, this is an easy case. I could address some of the -- the --

JUSTICE BREYER: Why -- why is this an easy case? Because, after all, the First Circuit is struggling with the same problem and they came to the conclusion, use section 3. That's fine. But you know that the garage door is not a vessel, and you also know that Jimmy's Harborside is not a vessel. And you also know that Justice Scalia's beached scow or something is not a vessel. And I take it nor is a vessel a scow that's tied up for 364 days of the year and acts as a picnic place and one day they take it out to sea and -- because they want to move it across the harbor. I guess that isn't a vessel. Is it? Or maybe it is. So why is this so easy? Because the First Circuit --

MS. BLATT: Justice Breyer, the --

JUSTICE BREYER: -- had a test, tries to make those distinctions.

MS. BLATT: Right. The -- I respectfully disagree. The First Circuit was way off base. It did not use section 3 of title 1.

JUSTICE BREYER: All right. Let's say it's wrong about that.

MS. BLATT: What it did is it --

JUSTICE BREYER: Now let's take section 3.

MS. BLATT: Okay, let's -- okay, let's go from there.

JUSTICE BREYER: And taking section 3, it seems to me, we have the same problems.

MS. BLATT: Let me -- let me answer your question.

JUSTICE BREYER: And I'd like to know your answer and you just said to Scalia what I thought -- Justice Scalia that I thought what was an answer isn't because I thought that word practical, as co-counsel recommended, has a rather specialized meaning where we get rid of a lot of these. Now you're saying no, it doesn't.

MS. BLATT: I think the -- the -- you look at the physical characteristics and the surrounding circumstances of any type of watercraft, and if it's out there moving, I -- I think that really is an easy case. What I think is bothering -- what was bothering the First Circuit is that this vessel clearly has a stationary purpose. It had two essential and indispensable purposes, one of which was stationary and one of which was a mobile barge.

The types of cases that raise problems under 1 U.S.C. 3 is you have things that meet the definition of vessel. The Coast Guard regulates them as vessels, but if they have no function to transport people or things -- and the best example is our country's battleships. They're basically retired vessels. They're museums. And there are some casino boats that function the same way. They have no transportation function. They've been withdrawn from navigation.

If you want a legal standard for what in navigation is it's this. It's what the Court said in Chandris, which is it's the status of the ship, and that means does it have some -- is it still servicing as a ship.

JUSTICE SCALIA: But that goes to in navigation --

MS. BLATT: That's correct.

JUSTICE SCALIA: -- not to whether it's a vessel or not. It is still a vessel even if it's beached up on land so long as it is capable of -- of floating. It's just not in navigation, isn't it?

MS. BLATT: I agree. The only types of cases where a vessel would lose its status as a vessel if it's been basically -- there -- there are basically two kinds of cases where the casino boats or the museums or hotels have lost their status. And there are basically -- there are two examples. They're boats in a moat. They've been basically landlocked in through concrete or landfilled and they can't go anywhere. And the other one that's -- that's equally as common is pipes and stuff have been driven through the hull of the ship, and they're not practically capable of transporting anything. They'd have to be overhauled.

JUSTICE BREYER: Your -- your view of the word in navigation does all the work here. And so a -- a concert ship, which exists, which say is docked at a dock for, let's say, 300 days of the year or maybe 360, and those other 5 days they -- they move it from one town to the next town where it stays for another 4 months, that is in navigation or not?

MS. BLATT: We think it's in navigation. If you have a --

JUSTICE BREYER: All right. So then --

MS. BLATT: If it's --

JUSTICE BREYER: -- the concert master and the -- the -- all the orchestra players and everyone else are covered by the Jones Act even though, by the way, none of them has ever moved whatsoever.

MS. BLATT: No, no. That's not correct. It just means it might be a vessel in navigation. You have cruise ships, military ships, pleasure crafts that sit all the time, some for years, but they're still ready for another voyage when and if they're needed. Those are still in navigation. Now, if you have --

JUSTICE BREYER: Well, if that's so, that's --

MS. BLATT: I'm going to answer your question on the seaman. If you've got a worker that never goes to sea on a vessel in navigation, the place to deal with that is not by saying it's not a vessel or not that it's not in navigation. But this Court emphasized in the Harbor Tug and Barge case, as well as the Chandris case, that there has to be a substantial connection not only in duration but also with respect to nature. And the Court in Harbor Tug said that -- that inquiry will concentrate on whether the employee's duties take him to sea.

JUSTICE SOUTER: Okay. In the case of the steam shovel operator on the dredge, do we say that -- that he contributes toward that function because it can't move unless he dredges first, so that the -- the whole object of moving across the harbor to dredge includes the -- the dredging part?

MS. BLATT: No.

JUSTICE SOUTER: Is that the way we do it?

MS. BLATT: There's -- there's a decision in McDermott v. Wilander that expressly holds that the worker need not aid in the navigation of the ship.

JUSTICE SOUTER: That's right.

MS. BLATT: Bartenders, croupiers, waitresses, et cetera on cruise ships are all seamen. That's just the holding of McDermott v. Wilander.

Now, there's still a separate question of whether they're exposed to the perils of sea.

JUSTICE SOUTER: So as long as -- as long as somebody is -- is engaged in a navigation --

MS. BLATT: In the ship's work --

JUSTICE SOUTER: -- function, everybody else comes --

MS. BLATT: -- whether that work is gambling or --

JUSTICE SOUTER: Okay.

JUSTICE BREYER: But now we have, in my concert ship, the concert master and the whole orchestra covered by the Jones Act even if none of them, by the way, has ever been even to sea on that day when -- they take the train.

MS. BLATT: Well, I just said that they may not be covered, but they --

JUSTICE BREYER: Because?

MS. BLATT: They may not be covered --

JUSTICE BREYER: Because?

MS. BLATT: They may not be covered if they fail the last requirement --

JUSTICE BREYER: But it says --

MS. BLATT: -- of Chandris.

JUSTICE BREYER: -- in terms of both its duration and its nature, i.e., a connection to a vessel --

MS. BLATT: Vessel in navigation.

JUSTICE BREYER: -- in navigation.

MS. BLATT: Right, and I -- Harbor Tug v. Barge, which is a later opinion, explains that that test will look at whether the employee's duties take him or her to sea.

Now, in this case the dredges operate not only -- only on the water, but they're out there usually away from shore and are engaged in regular movement over navigable waters. And the workers on that dredge, such as petitioner, are subject to the traditional perils of navigation which include not only collision with ships, but even capsizing.

Barges such as dredges are particularly susceptible to capsizing because their distance between the deck of the barge and the water, which is known as the freeboard, is low. In this case it was only 5 feet, and they have a high center of gravity because of those derricks or cranes that are holding the bucket ship. And if it's operating in poor weather or for some reason it's overloaded, they can tip over and you have a marine incident or even casualties. And this worker was exposed to the perils of navigation like other traditional seamen.

And this Court -- we think it's pretty telling that the Court basically in two decisions has resolved this case. You have already used 1 U.S.C. 3 in the Norton case in defining what is a vessel for purposes of the seamen exclusion in the Longshore Act. And then in the Ellis decision, this Court has already held that a dredge, including the scows that were accompanying that dredge, were vessels for purposes of 1 U.S.C. 3 and that the workers were seamen and that they were basically called upon to perform the duties, more or less, of ordinary seamen. And every other court that had looked at the issue and passed on it had equally held that dredges were vessels for a variety of maritime purposes. That was seamen's liens, limitation of liability, and -- and the overtime -- overtime laws in the Ellis case.

JUSTICE O'CONNOR: Ms. Blatt, the -- there was a brief filed by Signal I think that argues that a Jones Act vessel has to provide food, care and lodging to be covered.

MS. BLATT: Right. With due respect to the author, I think that approach is novel, it's radical, and it's unsubstantiated. Never has the definition of vessel turned on whether the watercraft had sleeping quarters.

JUSTICE KENNEDY: Are there problems in computing maintenance and cure in a case like this one?

MS. BLATT: It's usually governed by the collective bargaining agreement. I think it's something like $40 a day, and this petitioner was a union laborer. And it's -- it's usually governed --

JUSTICE KENNEDY: Suppose it were just left it up to the law. Are there problems in computing what cure and maintenance --

MS. BLATT: There used to be, but in -- there used to be a debate, which I think most of the cases the Signal brief is relying on, in how long maintenance and cure goes for and it was a rather kind of arcane, tricky thing, but basically this Court resolved it in 1930. It goes to maximum cure. So the seamen can no longer be cured. And there used to be a debate about should it just go to the extent of the wage contract or to some longer point, and the Court resolved that.

But there is no case that has ever even discussed the fact that a vessel turns on whether it has sleeping quarters. And we think that brief is also fatally undermined by the decision in Ellis and all the -- decision in Ellis already holding that vessels -- or the workers were seamen, and there was never been a discussion in those dredge cases about whether they had sleeping quarters. Several of those cases -- the most oft-cited one is that Saylor v. Taylor case out of the Fourth Circuit, was a maritime lien case, and those are exactly the type of workers that this Court in McDermott said were seamen who were intended to be covered under the Jones Act.

If there are no questions, we would ask that the First Circuit's decision be reversed.

JUSTICE STEVENS: Thank you, Ms. Blatt.

Mr. Connelly.

ORAL ARGUMENT OF FREDERICK E. CONNELLY, JR.

ON BEHALF OF THE RESPONDENT

MR. CONNELLY: Justice Stevens, and may it please the Court:

This Court in Chandris and in Harbor Tug stated the basic point of trying to be -- to separate lien-based employees from sea-based employees. This Court also stated that was Congress' goal in passing the Jones Act. The Court wrote: the Jones Act remedy is reserved for employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to the sea in ships are subjected. The First Circuit's ruling is much more likely to get to that result. The goal that this Court stated was Congress' goal then is section -- excuse me -- 1 U.S.C., section 3.

Justice O'Connor, your first question had to do with the casino boats, and that is a point that I was going to raise. Those casino boats are traditional vessels plying the rivers and used mostly in the midwest and -- and the Great Lakes. Those States have recently over the last 3 or 4 years changed their law. The law had been that they had to go up to -- out into navigation. They've now changed them and said, no, you must stay dockside. All they are is tied up dockside. They can be untied and moved out at any time.

The cases that -- and you're probably going to have some before you -- are dealing with dealers and waiters and waitresses to go aboard the casino boat and maybe fall down in the kitchen or something and are injured. They have never been on the boat while it was moved and it hasn't moved for the last several years.

JUSTICE O'CONNOR: Well, that might affect the decision of whether they are seamen covered under the Jones Act. It might still be a vessel.

MR. CONNELLY: Well --

JUSTICE O'CONNOR: But there may be other aspects of the test that aren't met --

MR. CONNELLY: But breaking it down --

JUSTICE O'CONNOR: -- when the thing is tied up.

MR. CONNELLY: Breaking it down, Your Honor, if the petitioner has his way, those tests are met. The first test is whether it's a vessel. It is a vessel. Second test, whether it's in navigation. The Government has just told you, and it states in its brief, any vessel that had any transportation purpose at all that is still not -- unless it's mothballed -- and I think they said today either pipes driven through it or in cement -- is a vessel in navigation. So it is a vessel in navigation.

We know that the --

JUSTICE O'CONNOR: I think it might be a vessel, but probably not in navigation while it's tied up or in mothballs.

MR. CONNELLY: Again, Your Honor, all it is is tied to the pier. The Government has taken the position, as has petitioner, in their briefs and here today that it's still in navigation if it can be used.

JUSTICE SCALIA: Yes, but I think what the Government has said is that though it's in navigation, we have a case that says that the -- that the seaman's connection to the ship has to be related to the functioning of the ship in navigation. He doesn't have to navigate it, but he has to be working at what the ship does in the course of its navigation, and a dredge operator does that.

MR. CONNELLY: Well, I don't think a dredge operator does that any more than the waiter on the casino. The dredge operator -- the dredge is there to do construction work. It is there to dredge. The casino is there to have people gamble and serve them drinks.

JUSTICE SOUTER: But isn't -- isn't that the point? The dredge is there necessarily to move. The casino is not there necessarily to move.

MR. CONNELLY: Well, it is our position -- and as stated by some of the First Circuit -- that the movement of the dredge was incidental. Once --

JUSTICE BREYER: Should we clarify that? Because I don't read the cases saying what Justice Scalia just said or what you -- what it says is that a seaman must have a connection to a substantial -- in terms of duration and nature connection to a vessel in navigation.

MR. CONNELLY: Correct.

JUSTICE BREYER: Obviously, a croupier has such a connection.

MR. CONNELLY: Correct, Your Honor.

JUSTICE BREYER: It doesn't say anything about being connected to the navigating part.

MR. CONNELLY: That's correct, and this Court handled that in Wilander, Your Honor, that it said in --

JUSTICE SCALIA: Not to the navigating part but to what the vessel is doing in the course of its being in navigation.

MR. CONNELLY: If the term, Your Honor, in navigation, had the bite that I think it should have, then we may not be here today at all. The First Circuit was actually looking at the actual transportation function, assuming that it had to be into navigation. What the -- what the petitioner wants is 1 U.S.C., section 3 which looks at theoretical transportation, a mere capability.

And Your Honor, I understand what you said, Justice Scalia, that to you, they're the same, practical capability or capability. But to the petitioner and the Government, they are far different. In both of their briefs, they have said that without the Evansville change in the language of the statute which adds practical capability, both have agreed that it is overly inclusive a statute, 1 U.S.C., section 3. It includes everything and including Justice Breyer's garage door.

JUSTICE GINSBURG: But as Mr. Kaplan pointed out, all -- the fact that something is a vessel doesn't mean there's Jones Act coverage, and I think Mr. Kaplan was getting to the perils of the sea. Someone who's working on a boat that is not in the water day in and day out is never exposed to the perils of the sea.

MR. CONNELLY: Well, Your Honor, the perils of the sea, which this Court discussed at length in the Papai case, we -- we say that -- that is further evidence that Mr. Stewart is not entitled to Jones Act remedies. Mr. Stewart was on a construction site. It happened to be a work platform in site of land. He was never more than 500 yards off the coast. The dangers that he was up against were more akin to that of a construction worker or, at the very least, a harbor worker or a stevedore. They were not the same perils that are normally faced by a true seaman. Now --

JUSTICE GINSBURG: One peril was a collision with another vessel, and that's exactly what happened here.

MR. CONNELLY: We disagree with that, Your Honor. This was a situation where the Super Scoop was -- was moored. It was anchored and stationary, again as a stationary work platform. The scow was just being brought from one side to the other alongside -- attached to it at all time by -- by cables and by the crane. The -- the -- he got jostled and he fell. No different than harbor workers and stevedores face everyday when they're unloading ships and working on harbors.

JUSTICE KENNEDY: Suppose there had been -- suppose there had been very rough water --

MR. CONNELLY: They would have sent everyone home.

JUSTICE KENNEDY: -- and -- and the crane operator was the -- was operating it and the water came over the freeboard and it capsized. That's -- that would be the perils of the sea, wouldn't it?

MR. CONNELLY: Well, because we are in the protected harbors of the -- of Boston Harbor --

JUSTICE KENNEDY: No. This is my -- this is a special day in Boston --

(Laughter.)

JUSTICE KENNEDY: -- which -- which they have --

MR. CONNELLY: That happened a week ago.

JUSTICE KENNEDY: -- every 86 years or something.

(Laughter.)

JUSTICE SCALIA: It happens every -- every 86 years they have one of these storms.

(Laughter.)

MR. CONNELLY: Your --

JUSTICE BREYER: So far.

MR. CONNELLY: Your Honor, I think in that -- in that -- using your hypothetical, it's a construction platform right off the coast. They'd send everyone home. If there was any trouble with the sea, the -- the greatest perils that are discussed in the petitioner's brief -- and they list them all -- one of them is isolation and far away from home and far from aid. Those don't apply to Mr. Stewart. Mr. Stewart would be sent home if there was too much -- the weather got bad. He would be sent home in a -- in a minute or 2. He lived right in Boston. He was in the middle of a large city. There was no major danger of isolation. That -- the Super Scoop was inspected regularly by the State, Federal, and Government officials and by the general contractor on the job. There was no isolation. All of the perils that have been listed by --

JUSTICE KENNEDY: And -- and by the Coast Guard.

MR. CONNELLY: The Coast Guard also. I'm not sure they went out on a regular basis, but they did inspect the -- the Super Scoop at -- at some point. There's no question about that.

This Court --

JUSTICE STEVENS: You're not contending that anything that happens in a harbor is not exposed to the perils of the sea, are you?

MR. CONNELLY: Oh, absolutely not, Your Honor. This Court in Cope and earlier cases has long equated a vessel with transportation. That's what the First Circuit did. They -- they needed a bright line. They chose a bright line, and the bright line was transportation. Is the structure primarily engaged in transportation or commerce? And navigation, transportation, and commerce are all intermixed, and -- and the definitions include each other. And they found that it was not primarily engaged in transportation. It was primarily a work platform doing construction.

JUSTICE GINSBURG: But how do you -- how can you possibly describe as a bright line test anything that says you have to identify the primary function? Plus, even if it's not its primary function, if it happens to be moving at the time of the accident, then there's coverage. That doesn't seem to me very bright line.

MR. CONNELLY: Well, Your Honor, what it is, I believe, is a bright line test with an exception. And the Stewart case talked about the DiGiovanni exception, which falls very closely to -- to what Justice Stevens wrote in his concurring opinion in the Chandris case, that it is unfair that somebody who was actually injured while a -- a vessel or -- or structure is in actual navigation does not get at least a second bite at the apple and that that person cannot be -- said to be a Jones Act seaman.

JUSTICE GINSBURG: Even though the identical accident happens to his buddy 10 minutes before when the vessel isn't moving.

MR. CONNELLY: Well, Your Honor, at no time during the 1 and a half years that Mr. Stewart was in the harbor, as far as we know from the record, was the Super Scoop in transportation. The incidental movement of -- of pulling forward a few feet with its anchors is not navigation or transport -- transportation. The First Circuit stated that the movement of the scow was both immaterial because, as the Government has already admitted, he wasn't tied to the scow. His -- his time was spent on the Super Scoop, but also incidental, Your Honor, because it was just slight movement along the site. It wasn't transportation or navigation.

At no point -- and -- and the petitioner has put their spin on this that -- stating that Mr. Stewart every day he was out there moved in and out of coverage. That's not true. He was never in Jones Act coverage.

And Your Honor --

JUSTICE SCALIA: I -- I guess I could agree with you if -- if I believed that I had to look to the primary purpose, whether the primary purpose of the vessel was transportation. But what -- what do you do about gambling ships that, you know, they -- they sail out beyond the 2-mile limit and then come right back to where they left? Now, people get on board not to get transported. They get on board to gamble. And the purpose of the ship, the primary purpose of the ship, is gambling. You think that -- that -- the -- the seamen who -- who are on that ship, which regularly goes out beyond the 2-mile limit, you think that they're -- that they're not covered by the Jones Act?

MR. CONNELLY: I think in that situation, Your Honor, it's -- it's a closer call, that they --

JUSTICE SCALIA: I don't think it's close at all. I think they're obviously covered by the Jones Act.

MR. CONNELLY: That is a traditional trip -- ship and those people are engaged in a form of transport --

JUSTICE SCALIA: But -- but that's not the primary purpose of -- of the ship, just as the primary purpose of this scow is -- of -- of this dredge is not transportation.

MR. CONNELLY: In that situation, Your Honor, it would be -- it would be a primary purpose, though, that transporting the people who happen to be gambling --

JUSTICE SCALIA: Oh, a primary purpose? Now, you're getting a little fuzzy there. I thought you said the primary purpose.

MR. CONNELLY: Well, in the First Circuit --

JUSTICE SCALIA: It has to be a primary purpose.

MR. CONNELLY: Well, in the Manuel court, the Fifth Circuit actually uses the term, a primary purpose.

JUSTICE SCALIA: A. Oh.

MR. CONNELLY: And -- and I think -- and to a degree that --

JUSTICE SCALIA: And you think that's not fuzzy.

(Laughter.)

MR. CONNELLY: It's an -- it's an oxymoron, Your Honor.

But what -- what the First Circuit was doing in -- in the Stewart case is -- is similar to what this Court did in Chandris. It was looking at a temporal view. A worker -- and the temporal view used by this Court in Chandris was looking at what the worker was doing. What were his duties? He isn't going to be denied Jones Act coverage because he happened to be an office worker 2 months before if his duties had changed and he was now a Jones Act seaman, nor if he fell in the office, after he had been reassigned to the office, was he going to gain Jones Act seaman status just because he spent the last 2 years on the vessel.

That is what the First Circuit has done in terms of the vessel as well, not just the work but in terms of the vessel. Do not look at what this vessel did in the past. Do not look at what it did -- might do in the -- in the future. It's transportation from California through the Panama Canal up the east coast is immaterial. You should look at the worker who is claiming Jones Act status, his relationship to the structure and what the structure's purpose was and business was during that relationship. During the 1 and a half years that he was associated with it, it wasn't transporting anything. It was used as a -- a work platform only, only a structure, and it wasn't transporting anything during that time.

The same thing with the casino boats, these individuals who go upon the casinos as a waitress and are never -- never leave the port, never leave the dock shouldn't be entitled to the special protections of the Jones Act. They face none of the perils of -- of the sea or of -- of perils of -- of navigation.

JUSTICE GINSBURG: There's a difference to this extent, would you agree, that something that's just tied up to the dock and never moves is different from something that is actually in the water and whether you call it transportation, it is moving? It has to move to engage in the construction of this tunnel.

MR. CONNELLY: Well, Your Honor, this Court has decided, I believe it was in Chandris, that a -- a seaman doesn't lose his seaman status just because the vessel he's assigned to is now in -- in port. They wanted -- they didn't want a person to go in and out too many --

JUSTICE GINSBURG: Well, I'm just -- let's focus on what is a vessel because someone -- it may be a vessel but the injured person may not be a seaman. Those are two different things. This is only the first step. So when you're bringing in what the worker does, whether it's a croupier or whatever, the only question that we are considering is, is this dredge a vessel? We're not involved with the question of whether the worker is a seaman unless we pass that basic threshold.

MR. CONNELLY: That's correct, Your Honor, but of course, the ultimate issue the Court is trying to arrive at is whether or not Mr. Stewart is a Jones Act seaman. And this Court has held for him to be a Jones Act seaman, it must be a vessel in navigation. I don't think that that can be separated, that just looking at a vessel. 1 U.S.C., section 3, which the petitioner wishes, of course, everything -- everything that floats that is capable of transportation is -- is a vessel. The First Circuit has -- has used a much more narrow definition but focusing on the purpose and primary use of the structure because it is trying to get to where this Court was trying to get. Is it a vessel in navigation?

JUSTICE SCALIA: Is it -- is it the vessel that's the problem? Why -- why do you focus on the vessel? It seems to me most of your argument has gone to whether it's in navigation. Can you be a vessel that is not in navigation?

MR. CONNELLY: Yes, Your Honor.

JUSTICE SCALIA: Of course, you can or you wouldn't have the -- the combination of the two terms appearing anywhere. So why isn't the problem here not whether it's a vessel but whether it's in navigation?

MR. CONNELLY: Well, again, Your Honor, if -- if in navigation means what it should mean, which is an instrument for transportation or commerce over navigable waters, and not simply as the petitioner and the Government want it to mean that anything that once might have been in navigable waters and stays in navigable waters and isn't mothballed is still in navigation -- if it means what it should mean, then that's something I think the First Circuit is -- was trying to get to anyway. They -- they were looking at it in terms of vessel status, vessel in navigation versus just in navigation. They -- they were trying to get there and that's why they used what is really a -- a temporal look and looked at what was the business use.

JUSTICE O'CONNOR: Well, exactly. And -- and in Chandris, this Court rejected the snapshot approach to determining what's a vessel and the First Circuit seemed to go back to that. And certainly what the First Circuit did seems in serious tension with this Court's cases. It just didn't follow the same line that we had outlined.

MR. CONNELLY: The First Circuit does -- the First Circuit rule, Your Honor, in DiGiovanni and Fall and Stewart does have a snapshot exception.

JUSTICE O'CONNOR: Yes.

MR. CONNELLY: There's the main rule which has a bright line --

JUSTICE O'CONNOR: Right, and that was rejected by this Court in Chandris. So I -- I think there's a problem here.

MR. CONNELLY: Well, Your Honor, there -- there are always -- and this is answering Justice Ginsburg's question earlier as well. There are always going to be difficult situations where some people, doing the exact same work, using the same equipment on the same structure, some are covered and some are not, a situation where one has the requisite connection 30 or 40 percent to a vessel, the other person doing the same work next to him only has 10 percent. One is covered.

JUSTICE O'CONNOR: Yes, but it might be much simpler to rely on 1 U.S. Code, section 3 and our -- our definition, as we've described it there, and then deal with other situations within the framework of the definition of seaman and the other issues that arise. And it seems like the First Circuit went backwards from Chandris back to Giovanni which basically had been rejected. So that's the concern.

MR. CONNELLY: Your Honor, again, I -- I think that if 1 U.S.C., section 3 is adopted, then every vessel capable --

JUSTICE O'CONNOR: Congress adopted that.

MR. CONNELLY: Well, I don't -- I don't agree, Your Honor. The way -- the way we look at the congressional intent -- this Court has already decided in -- in several cases that Congress left it to the court to decide which persons are -- should be granted Jones Act seaman status. This is what the Court has said. Why then would the Congress in -- in the same statutes have sort of handcuffed the Court by saying it's for you to decide who's a Jones Act seaman and who's entitled to those special protections, but we're going to handcuff you and -- and say this is what you have to decide as far as vessel is concerned?

1 U.S.C., section 3 was not followed. I should also point out that the petitioner is a recent convert to this position, and it -- it hasn't been followed in the circuits at all. There isn't a lot of cases out there where a lot of circuit judges have stated section 3 should be the definition for the Jones Act.

JUSTICE BREYER: If -- if you go -- I thought vessel -- the word vessel appears in our cases. It doesn't appear in the Jones Act. Am I right or not about that?

MR. CONNELLY: It does not appear in the Jones Act --

JUSTICE BREYER: All right. So we have a degree of freedom on this. But -- but the -- the question then is, is it -- how -- I'm getting the impression from you and -- and from the SG that it's rather deeply embedded in the law, if we start reading the Fifth Circuit cases, that if we define X as a vessel, automatically it is a vessel in navigation, that the cases have said the word in navigation mean nothing, with one exception. The exception is if you actually have like a physical cemented connection to the land so they can't escape. Otherwise, if it's just tied up at a dock, even if it never goes to sea, those words, in navigation, have no meaning. If it's a vessel, it's a vessel in navigation. If it's my garage door, my garage door, which can float, is a vessel in navigation.

Now, how accurate is that assumption I'm now making? What would I read in the law? Is that definition of in navigation as meaning virtually nothing really embedded in the law?

MR. CONNELLY: It is pursuant to what -- the petitioner and the Government's view.

JUSTICE BREYER: I know it is but what is your view?

MR. CONNELLY: My view is that it shouldn't be, that it should have some bite to it. It should mean, as -- as I stated before, an instrument of commerce or transportation over navigable waters. But that's not what it has come to mean in a lot of the circuits below. It has come to mean something that's just simply in navigable waters no matter how many years it has gone without --

JUSTICE BREYER: Well, would it help? Suppose we were to say it was -- had to be capable, at least, of having a captain and crew?

MR. CONNELLY: I have never thought of that, Your Honor.

JUSTICE BREYER: Then we better not do anything for the first time.

(Laughter.)

MR. CONNELLY: Your Honor, I think in that in that situation, there are -- there can be vessels involved with transportation, getting back to the Cope case and other cases, where there -- it's -- it's a barge being towed, but it's transporting things. We're not disputing that. I don't think it needs to have a captain and crew necessarily to be a -- considered a vessel in navigation.

But you hit the nail on the head, Your Honor, and that's -- that's where the First Circuit was befuddled in -- in trying to come up with a regional -- reasonable test because they're dealing with this situation where it seemed like everything is a vessel in navigation. And yet, that doesn't serve Congress' intent of only persons who face the perils of the sea are entitled to the special protections under the Jones Act.

JUSTICE GINSBURG: The -- the word vessel does appear in the Longshore and Harbor Workers Compensation Act.

MR. CONNELLY: Correct, Your Honor.

JUSTICE GINSBURG: And this is the -- the only purpose of the vessel inquiry that we're involved in is to -- to say is this person within one injury compensation scheme or another.

MR. CONNELLY: Correct.

JUSTICE GINSBURG: Now why, in making that inquiry, should the courts go off on their own and be inventive and come up with a definition when Congress has given a definition that can be used by default? If Congress thinks it should be other than the general definition they have provided, Congress can also do that. But in the meantime, why should the courts go creating definitions instead of using the one that's right there in the statute book?

MR. CONNELLY: Because this Court effectively overruled the definition or decided not to use it in the Evansville case. It saw in that case that it would not just rely on the section 3 language. It would add the word practically, practically capable, and -- and not just capable because the Court saw that in Evansville the wharfboat, which they determined was not a vessel, even though again not dealing with the Jones Act, it was capable of transportation, but it wasn't practically capable of transportation. So the --

JUSTICE GINSBURG: Was the Court then --

MR. CONNELLY: -- the Court has decided --

JUSTICE GINSBURG: -- just construing --

MR. CONNELLY: -- not to follow section 3.

JUSTICE GINSBURG: -- just construing instead of not following, but say by capable, Congress must mean practically capable.

MR. CONNELLY: Your Honor -- and I realize that is what Justice Scalia said earlier. The position of the petitioner, as he stated as he was standing here not too many minutes ago, was that they seek to have the Court employ 1 U.S.C., section 3, not the Evansville change to that section. They -- they see it as quite different and it's in both of their briefs, that Evansville did change 1 U.S.C., section 3. The petitioner's position is that this Court is bound by -- to follow 1 U.S.C., section 3 because Congress says so.

It is our position that they're not so bound. If you're bound -- if you're not bound, why take a faulty definition such as section 3 and try to change it a little bit? You're -- you're free to as -- as you are, to determine who is a Jones Act seaman. You're free to determine what is a vessel in navigation or a vessel pertaining to the -- the Jones Act.

1 U.S.C., section 3 was never referenced in the Longshore Act. Congress at that time, many years before and many years after, has passed many statutes in which vessel is defined. Sometimes they reference section 3; other times they write in a definition. Sometimes it's similar to section 3, sometimes quite different. In this case -- for the Longshore Act, they decided to leave it to the courts.

The Jones Act was passed in 1920. Its predecessor was the act of 1915. That act did have a definition of vessel that was very restrictive and actually talked about actual navigation. In 1920, the Merchant Marine Act was passed and it -- that portion of it had a very large definition, which was already discussed earlier, the Shipping Act definition. The Jones Act didn't adopt that one and it didn't adopt the one in 1915.

The -- the Longshore and Harbor Workers Act was passed in 1927. Certainly by that point they knew that they had just jettisoned two definitions 7 years before. They chose again to leave it to the courts.

In 1972 and again in 1984, there were considerable amendments that Congress did to the Longshore Act. At that time, they certainly knew -- and there's always been heavy -- heavy lobbying going on in Congress every time that they try to touch the Longshore Act or -- or the Jones Act. They knew by that point in time that the circuits were not using section 3 as the definition for Jones Act vessel. Again, they chose to leave it to the courts. They did not intercede and then reference section 3 or incorporate a definition like it or something. They again chose not to.

In 1920, section 3 was certainly not the only definition of vessel. Benedict on Admiralty, which this Court has cited several times, which the petitioner has cited, had a completely different definition of -- of vessel, and that could have been the one that Congress had in mind.

I realize it's always dangerous to mention the Congressional Record, but most of the people who spoke in 1920 and again in -- mainly in 1927 were discussing traditional vessels and vessels on a voyage. If they had true seamen in mind, they probably had more of a traditional vessel in mind.

Also looking at the record, when the House wanted to include everybody, all seamen, into the Longshore Act, they listed out various structures such as dredges and barges. Obviously, a compromise was reached with the Senate, and when the act was passed, they limited it, not just seamen and -- and but only to masters and members of crews of vessels. They limited it to that and left it, of course, to the courts to decide who is entitled to the Jones Act status.

If I may have a second, Your Honor.

The term vessel can and often has had a different meaning for the Jones Act, which this Court has stated is a vessel in navigation, than it does with the Longshore and Harbor Workers Act. In his amicus brief filed on behalf of the petitioner, Mr. Hillsman writes that the lower court unanimously -- unanimously -- have decided that the definition of vessel for purposes of the Longshore Act is much, much more inclusive than it is for the Jones Act, and it has worked perfectly fine.

Under the Longshore Act, most of the persons who collect longshore benefits only have to show it's a maritime nexus. There's no vessel requirement from almost all of the claims under the Longshore Act.

Another point I wish to make is that both the First Circuit and the petitioner talked about a bright line test. The First Circuit, though, test is dealing with actual transportation, the actual use in business of the structure during the time that the person who is claiming special status is associated with it.

More confusing is dealing with 1 U.S.C., section 3, which although bright is also very broad and would include everything. Anything that floats or is capable of floating would be included under that.

There are always going to be situations, no matter what definition the Court comes up with -- always situations where a person would have to be covered under both acts, and I realize in the Chandris case, it was the goal of the Court to say we'd like to make it clear as we -- we can. We don't want people going in and out of Jones Act status.

However, as this Court saw in Gizoni, a perfect example -- in Gizoni, the person was a harbor worker. This Court sent it back to the lower court saying -- the lower court had said you're a harbor worker. That's your label. You're in the harbor workers' union. You're not entitled to -- for Jones Act status. This Court said no, send it back, let's take another look. The person, although a harbor worker, may have had the requisite connections to a vessel in navigation to be able to claim Jones Act seaman status. Obviously, in that situation, which is a perfect example, the -- the employer would have had to cover him under the Longshore Act and if -- if the lower court changes or -- or the jury decides that he's a Jones Act seaman, would have had to have covered him under the Jones Act.

Professor Schoenbaum has said that the mutual exclusivity of the two acts is really in theory only and that there are always cases and will be dealing with the brown water seamen and brown water employees, harbor workers and longshoremen, where they're going to have to be covered under both anyway.

Again, the First Circuit test, which does have an exception to it, which it clearly is -- is a snapshot, again to give someone another bite at the apple, which this Court thought, at least in the concurring opinion in Chandris, was a fair result, has that. But the test itself is -- is broad. It -- it is a bright line and it makes it clear, as this Court has stated in the past, that unless there's a transportation function, it's not a vessel in navigation.

Thank you.

JUSTICE STEVENS: Thank you, Mr. Connelly.

The case is submitted.

(Whereupon, at 12:02 p.m., the case in the above-entitled matter was submitted.)