In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 02-3818 & 02-3819

JOHN HOWARD, et al.,

Plaintiffs-Appellees,

v.

SOUTHERN ILLINOIS RIVERBOAT CASINO CRUISES, INC.,

doing business as PLAYERS ISLAND CASINO,

Defendant, Third-Party Plaintiff-Appellant,

v.

TRIANGLE ENTERPRISES, INC., doing business as

TRIANGLE INSULATION AND SHEET METAL COMPANY,

Third-Party Defendant-Appellant.

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Appeals from the United States District Court

for the Southern District of Illinois.

Nos. 00 C 4321 & 01 C 4299—G. Patrick Murphy, Chief Judge.

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ARGUED MAY 20, 2003—DECIDED APRIL 9, 2004

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Before COFFEY, KANNE, and DIANE P. WOOD, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. This controversy arose

when 46 individual plaintiffs brought negligence claims
2 Nos. 02-3818 & 02-3819

under the Jones Act, 46 U.S.C. app. § 688(a), for injuries

they allegedly sustained while working aboard a riverboat

casino, the M/V Players II (Players II). Players II was

permanently moored to the dock at all times pertinent to

their claims. The question we must decide is whether this

fact is enough to defeat any claim under the Jones Act,

which creates a federal negligence remedy for seamen. The

district court thought not, but it certified under 28 U.S.C.

§ 1292(b) the following question for interlocutory review:

whether Players II was a vessel “in navigation” covered by

the Jones Act, such that the plaintiffs employed on board

were Jones Act “seamen.” We agreed to hear the appeal,

and we now reverse.

I

Beginning in 1995, defendant Players Island Casino

(Players) operated a gaming casino on Players II, a riverboat casino located on the Ohio River near Metropolis,

Illinois. At that time under Illinois law, gaming casinos

could be operated only on licensed self-propelled excursion

boats that cruised along navigable streams. In 1999, the

Illinois General Assembly amended the Illinois Riverboat

Gambling Act to allow gaming on “permanently moored”

barges. 230 ILL. COMP. STAT. 10/4(d) & 10/3(c). Soon thereafter, Players II ceased cruising along the Ohio River and

(with minor exceptions described below) was permanently

moored to the dock. According to an affidavit by the vice

president of operations and marketing, Jeff Pfeiffer, Players

had no intention of having Players II cruise again as part of

casino operations.

Plaintiffs claim that they sustained injuries when they

were exposed to chemicals while working aboard Players II

on July 28 and 29, 2000. It is undisputed that at the time

of the plaintiffs’ alleged injuries, the casino had been

docked for more than a year and was not in the business of
Nos. 02-3818 & 02-3819 3

transporting passengers. It was connected to land-based

utilities, including electricity, telephone, water, and sewer.

Nevertheless, it could be disconnected from the dock in

about 15 to 20 minutes. Moreover, Players II was licensed

and classified as a passenger vessel with the U.S. Coast

Guard and was equipped with firefighting and safety

equipment. It also employed a captain and crew qualified to

move the casino if necessary. After the 1999 change

in Illinois law allowing dockside gaming, however, Players

II never left its moorings except in connection with propulsion tests required by the Coast Guard. During the propulsion tests (which took about 45 minutes to complete),

Players II would move out into the river about 100 feet and

then return to the dock. By the time of plaintiffs’ alleged

injuries, the Coast Guard required the propulsion test only

once a year. In September 2001, Players removed Players II

from service as a casino. Some time later, it sailed under its

own power to Texas to await sale.

Defendant Players and third-party defendant Triangle

Insulation and Sheet Metal Company (Triangle) filed motions for summary judgment in district court, seeking dismissal of the plaintiffs’ claims on the grounds that Players

II was not a vessel “in navigation” and thus the plaintiffs

were not “seamen” protected by the statute. The district

court denied Players’ and Triangle’s motions for summary

judgment and certified this issue for interlocutory appeal

under 28 U.S.C. § 1292(b).

II

The Jones Act creates a federal negligence claim for any

“seaman” injured in the course of employment. 46 U.S.C.

app. § 688(a). Congress enacted the Jones Act to provide

seamen with heightened legal protection because of their

exposure to “perils of the sea.” Chandris, Inc. v. Latsis, 515

U.S. 347, 368 (1995). Oddly enough, the term “seaman” is
4 Nos. 02-3818 & 02-3819

not defined in the statute; instead, it has been up to the

courts to define that central term. The Supreme Court has

established two requirements for seaman status: (1) the

employee’s duties must contribute to the function of the

vessel or to the accomplishment of its mission; and (2) the

employee must have a “substantial employment-related

connection to a vessel in navigation.” Id. at 373 (emphasis

in original); McDermott Int’l, Inc. v. Wilander, 498 U.S. 337,

354-55 (1991). As the Supreme Court noted in Chandris:

The fundamental purpose of this substantial connection

requirement is to give full effect to the remedial scheme

created by Congress and to separate the sea-based

maritime employees who are entitled to Jones Act

protection from those land-based workers who have

only a transitory or sporadic connection to a vessel in

navigation, and therefore whose employment does not

regularly expose them to the perils of the sea.

515 U.S. at 369. 

The only question before us today is whether an indefinitely moored vessel that has the ready capability of

cruising, but that is not used or intended to be used for the

purpose of moving or transporting, qualifies as a vessel in

navigation. To be precise, it is clear that Players II is a

vessel; what is contested is whether that vessel is “in navigation.” We are aware that the Supreme Court has granted

certiorari in Stewart v. Dutra Construction Co., 2004 WL

323176 (U.S. Feb. 23, 2004), which presents the question

whether a special-purpose dredge is a Jones Act “vessel.”

See Pet. for Writ. of Cert., 2003 WL 22926387 (U.S. Dec. 3,

2003) (No. 03-814). That question, however, is distinct from

the question whether a conventional sea-faring craft is “in

navigation,” as opposed to “out of navigation” or “withdrawn

from navigation.” Chandris, 515 U.S. at 373-74. Because

the latter question is the one presented in this case, we see

no need to postpone our decision for the resolution of
Nos. 02-3818 & 02-3819 5

Stewart. The navigation issue, the Court held in Chandris,

is normally one of fact reserved for the jury. Id. at 373. As

is generally true, however, it is appropriate to remove that

issue from the jury if there is no genuine issue of material

fact and the law will reasonably support only one conclusion. Id.

The district court concluded that Players II’s indefinite

mooring did not compel the finding that it was not in navigation. Giving little weight to Players II’s purpose or actual

use, the district court focused instead on the fact that

Players II was ready and able to cruise at 15-20 minutes’

notice. It found this case to be distinguishable from Pavone

v. Mississippi Amusement Corporation, 52 F.3d 560 (5th

Cir. 1995) (analyzing same issue for floating dockside casino

not ready and able to cruise, and holding that the vessel

was not in navigation), and Chase v. Louisiana Riverboat

Gaming Partnership, 709 So. 2d 904 (La. App. 1998) (same),

because Players II was ready and able to cruise. Citing

language in Johnson v. John F. Beasley Construction

Company, 742 F.2d 1054 (7th Cir. 1984), the district court

also found support for Players II’s “in navigation” status

because the vessel was literally engaged as an instrument

of commerce as it floated on the Ohio River, obviously a

navigable body of water. Id. at 1063. Finally, the district

court noted that it was only by virtue of its status as a

vessel that Players II could operate as a gambling casino.

See 230 ILL. COMP. STAT. 10/3-10/4.

While we appreciate the district court’s care in considering this question, in the end we are persuaded that

Chandris requires a more pragmatic approach than the one

the court used. As we recognized in Johnson, in order for a

vessel to satisfy the navigation requirement, the purpose of

the vessel “must to some reasonable degree be

the transportation of passengers, cargo, or equipment

from place to place across navigable waters.” Johnson, 742

F.2d at 1063 (internal citations and quotations omitted).
6 Nos. 02-3818 & 02-3819

Moreover, the analysis in Pavone and Chase did not hinge

upon whether the vessel was ready and able to cruise, but

looked to the vessel’s purpose and actual use (whether it

was used to move or transport anything). Pavone, 52 F.3d

at 570; Chase, 709 So. 2d at 910. Finally, whether a ship is

a vessel for state law gambling purposes, while perhaps one

factor to take into account, does not govern the question

whether it is a vessel in navigation for purposes of the

Jones Act.

Unlike the vessels in navigation that have been the subject of decisions of this court and the Supreme Court, the

purpose of Players II was not to move or transport cargo or

people, but merely to provide a legal venue under Illinois

law for gambling. Recognizing that indefinitely moored

dockside casinos are not the kind of vessels that the Jones

Act addresses is consistent with the statute’s purpose of

enhancing legal protections for seamen “regularly” exposed

to the “perils of the sea.” See Chandris, 515 U.S. at 369. We

hinted at this conclusion in our earlier decision in Weaver

v. Hollywood Casino-Aurora, Inc., where we remarked that

“[i]f the casino were indefinitely moored (as the record

suggests it now is), its status as a vessel in navigation

would be doubtful.” 255 F.3d 379, 387 (7th Cir. 2001). Today

we hold that an indefinitely moored dockside casino with no

transportation function or purpose is not a vessel “in

navigation.” See Martin v. Boyd Gaming Corp., 252

F.Supp.2d 321, 323 (E.D. La. 2003); Grobe v. Hollywood

Casino-Aurora, Inc., 759 N.E.2d 154, 159-60 (Ill. App. Ct.

2001); see also Johnson, 742 F.2d at 1063 (“If the

waterborne structure serves no transportation function, of

course, it can have no group performing navigational

functions, and hence no maritime ‘crew.’ ”); Tonnesen v.

Yonkers Contracting Co., Inc., 82 F.3d 30, 36 (2d Cir. 1996)

(ignoring original purpose for which the floating structure

was constructed and focusing on whether the floating

structure was primarily used for transportation purposes
Nos. 02-3818 & 02-3819 7

during a reasonable period of time immediately preceding

the accident). In applying this test, courts will need to

examine, among other factors, the current use of the vessel

and the question “whether the owner intends to move the

structure on a regular basis and the length of time the

structure has remained stationary.” Grobe, 759 N.E.2d at

159.

In this case, the undisputed facts doom the plaintiffs’

claims. Players II was an indefinitely moored dockside

casino at the time of the alleged injuries and was never

moved except to be tested. As a matter of law, we conclude

that it was not “in navigation” for purposes of the Jones Act,

and thus that these plaintiffs were not within the class

protected by that statute.

III

The order of the district court denying summary judgment

to Players and Triangle is REVERSED, and the case is

REMANDED for entry of judgment in their favor.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-9-04