### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-3-1998 

# S h a de v . Gr e a t L ak es D r ed ge

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-2023

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" S h a de v . Gr e a t L ak e s Dr e d g e " (1998). 1998 D e cisio n s

. P a pe r 212.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/212Filed September 3, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-2023

JOHN D. SHADE

v.

GREAT LAKES DREDGE & DOCK COMPANY,

Appellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 97-00739)

Argued July 30, 1998

BEFORE: GREENBERG, SCIRICA, and MCKEE, Circuit Judges

(Filed: September 3, 1998)

Robert B. White, Jr. (argued) Rapp, White, Janssen & German,

P.C. 1800 John F. Kennedy Boulevard

Suite 500 Philadelphia, PA 19103

Attorneys for AppellantMarvin I. Barish (argued)

Marvin I. Barish Law Offices, P.C.

Sixth & Walnut Streets The Curtis Center, Suite 801 Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. JURISDICTION

Great Lakes Dredge & Dock Company appeals from a final judgment entered in favor of appellee, John D . Shade, on October 22, 1997, pursuant to a jury verdict for Shade in the amount of $870,000, and from the denial of i ts renewed motion to alter or amend the judgment, or, in the alternative, for a new trial entered on November 19 , 1997. The district court had jurisdiction over this case under 28 U.S.C. S 1331, and this court has jurisdiction purs uant to

28 U.S.C. S 1291.

II. FACTUAL AND PROCEDURAL HISTORY

The U.S. Army Corps of Engineers awarded Great Lake s a contract to dredge and renourish the beach at Cap e May, New Jersey, which Great Lakes began performing on November 12, 1994. This project consisted of removi ng sand from the ocean floor at offshore locations and transferring the sand to the beach through 6600 fee t of steel pipe, known as the submersible line. See app . at 637- 40. The dredge Long Island removed the sand from th e ocean floor; and once its hopper compartments were full, the tug Conlon propelled the dredge to a self-conta ined offshore transfer station buoy ("scots buoy"), a la rge round floating buoy secured by four anchors. See id. at 337, 689. In order to transport the sand to the beach, the dr edge would secure itself to a pipe attached to the scots buoy

which in turn was connected to the submersible line . The

2dredge then would pump its load of sand into the pi pe and

through the submersible line. Upon reaching the bea ch, the submersible line ended at a "Y" valve. This valve, which controlled the flow of the sand, connected the subm ersible line to an additional line, known as the shore line

, extending in both directions along the beach parall el to the

ocean. As the sand flowed out of either end of the shore line, bulldozers positioned the sand on the beach a ccording to a predetermined plan.

Shade arrived at the Cape May worksite on the night of December 8, 1994, and began to work for Great Lakes at the site on December 9, 1994. See id. at 472. Since 1974, Shade had been employed by various companies to ass ist in such dredging projects; and in the four years pr ior to his injury, the majority of his work had been with Grea t Lakes. See id. at 468-69. Shade received his work assignme nts through his union, Local 25, Marine Division, Inter national Union of Operating Engineers, AFL-CIO. When he was unemployed, Shade would place his name on the out-o fwork list until Local 25 assigned him to a new job. See id. at 346-48, 519-20.

Great Lakes previously employed Shade from Septembe r 1992 until February 1994. See id. at 54-55, 509-10. However, beginning in March 1994, Shade worked for Bean-Weeks Joint Venture, another dredging contract or, as a deckhand. See id. at 55, 510. Bean-Weeks subseque ntly fired Shade, and he remained without work until Gre at Lakes hired him for the Cape May job.

Great Lakes asserted that it hired Shade for Cape M ay as a shoreman, see id. at 648, pursuant to its contrac t with Local 25 which mandated the hiring of a shoreman fo r this type of job. See id. at 69, 684-87. In fact, Great Lakes' superintendent, David P. Rappe, and the Local 25 un ion steward, Cecil C. Jackson, Sr., both testified that Great Lakes hired Shade as a shoreman. See id. at 687, 79 4; see also id. at 648 (testimony of deck captain James D. Joyner), 772-73 (testimony of shoreman Joseph H. Gurganus).

Shade, on the other hand, contended that Great Lake s hired him as a deckhand assigned to the anchor barg e 110, which assisted in the dredging operation, see id. a t 479,

3and that the shore gang was already in place when h e

arrived to work at Cape May. See id. at 472. Both S hade and his supervisor, Mark Oldham, testified that he was employed primarily on the navigable waters off Cape May. See id. at 316-17, 473-84. In fact, Oldham testifie d that

Shade was on the water 90% of the time that he work ed at the Cape May project. See id. at 316-17.

When Shade arrived at Cape May, the submersible lin e had been laid, the scots buoy was in place, and the Long Island had begun to dig the first portion of sand f rom the ocean floor. See id. at 473, 642-43, 681-83, 793-94 . The dredge filled its hoppers and connected to the scot s buoy, but it was not able to pump the sand to the beach b ecause of a hole in the submersible line. See id. at 157. As a result, from December 9th, when Shade began to work at Cape May, until the early morning hours of December 13th

, Shade worked on the water assisting in the repair o f the submersible line, see id. at 690-92, while assigned to anchor barge 110. See id. at 473-75.

After the workers completed the repair of the subme rsible line, the Long Island once again had the capacity t o pump sand to the beach. However, between December 13th a nd December 30th, the dredge only operated from the ev ening

of December 19th until December 22nd and from the evening of December 25th until December 30th becaus e of poor weather conditions. See id. at 249-66, 694-99. Great Lakes presented evidence that during the periods of bad weather, Shade remained on the beach, assisting wel ders and waiting on standby in case the weather cleared. See id. at 601-02, 699-700, 745-46. Shade, on the other han d, contended that during poor weather he would work in the harbor which was protected from the rough seas. See id. at 311-14. For instance, Shade testified that he helpe d construct a second submersible line, see id. at 480 , and assisted in repairing the scots buoy. See id. at 5 58-59; see also id. at 305-15 (testimony of Oldham).

Great Lakes offered testimony that when the dredge was able to pump sand to the beach, Shade performed the work

of a shoreman on the beach. See id. at 695-99. For example, Shade assisted welders in securing the sho re line, operated the "Y" valve, and put fuel in welding mac hines.

4See id. at 536-37, 769. Shade disputed Great Lakes'

account of his work between December 19th and Decem ber 22nd, and testified that he worked on the water dur ing that period. See id. at 556. However, he did not dispute that he primarily worked on the beach performing these shor e based duties from December 25th until December 30th . See

id.

While working on the beach on December 30th, Shade assisted Oldham in refueling a welding machine, a procedure which required lifting the machine with a frontend loader. See id. at 485-87. While Oldham was ope rating the loader, the raised claw of the loader dropped unexpectedly and severed Shade's thumb. See id. at 486- 88. Shade testified that even though doctors were a ble to reattach his thumb, see id. at 491, he basically ha s no use of the thumb, see id. at 501-02, and could not retu rn to work in his prior capacity. See id. at 502-03.

After initially receiving benefits under the Longsh ore and Harbor Workers' Compensation Act, 33 U.S.C. S 901 e t seq. ("LHWCA"), Shade filed a complaint against Great La kes on January 31, 1997, seeking damages under the Jones A ct, 46 U.S.C. app. S 688(a), and the general maritime l aw doctrine of unseaworthiness. On September 8, 1997, Great Lakes filed a motion for summary judgment on the gr ound

that Shade was not a seaman. The district court den ied this motion without opinion on September 24, 1997. On October 7, 1997, Great Lakes filed a motion in limi ne to preclude testimony at trial regarding Shade's prior employment with Great Lakes. The district court, ho wever, deferred ruling on the motion and at the trial ulti mately permitted Shade to introduce evidence of his prior employment. See app. at 54-55, 509-10.

A jury trial began on October 14, 1997, solely on t he Jones Act claim. At the conclusion of the presentat ion of Shade's evidence, Great Lakes moved under Fed. R. C iv. P. 50 for a judgment as a matter of law on the ground that the

evidence did not establish that Shade was a seaman at the time of his injury. See app. at 41, 589. However, t he district court deferred ruling on that motion. See id. at 5 89. Great

Lakes renewed its Rule 50 motion at the conclusion of all

5of the evidence, see id. at 45, 844; and again, the district

court deferred its ruling. See id. at 844.

The district court submitted a series of special interrogatories to the jury; and on October 21, 199 7, the jury found that Shade was a seaman, and returned a verdict in his favor in the amount of $870,000. See id. at 946-47. Pursuant to this verdict, the district cour t entered judgment against Great Lakes on October 22, 1997. S ee id. at 7. Great Lakes subsequently filed a renewed moti on to alter or amend the judgment pursuant to Fed. R. Civ . P. 50(b), or, in the alternative, for a new trial unde r Fed. R. Civ. P. 59. See app. at 7. However, the district co urt denied this motion on November 19, 1997, and Great Lakesfi led its timely notice of appeal on December 18, 1997. S ee id. at 7, 9.

III. DISCUSSION

A. Jones Act Seaman Status

The Jones Act provides that "[a]ny seaman who shall suffer personal injury in the course of his employm ent may, at his election, maintain an action for damages at law, with the right of trial by jury." 46 U.S.C. app. S 688(a ). However,

the Jones Act does not define the critical term"sea man"

and thus "leaves to the courts the determination of exactly which maritime workers are entitled to admiralty's special protection." Chandris, Inc. v. Latsis, 515 U.S. 347 , 355, 115 S.Ct. 2172, 2183 (1995). In a recent series of opin ions, the Supreme Court has clarified this definition and has provided guidance as to how courts are to interpret this key term. See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535 (1997); Chandris, 515 U.S. 347, 115 S.Ct. 2172; Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 , 112 S.Ct. 486 (1991); McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 111 S.Ct. 807 (1991).

In developing a test for seaman status, the Court n oted that prior cases recognized "a fundamental distinct ion between land-based and sea-based maritime employees ." Chandris, 515 U.S. at 359, 115 S.Ct. at 2185. In enunciating this difference, the Court has focused" on the

6nature of the seaman's service, his status as a mem ber of

the vessel, and his relationship as such to the ves sel and its operation in navigable waters," id. at 359-60, 115 S.Ct. at 2185, and not on the situs of injury, because"la ndbased maritime workers do not become seamen because they happen to be working on board a vessel when th ey are injured, and seamen do not lose Jones Act protectio n when

the course of their service to a vessel takes them ashore." Id. at 361, 115 S.Ct. at 2186; see also Wilander, 4 98 U.S. at 355, 111 S.Ct. at 817 ("The key to seaman status . . . is employment-related connection to a vessel in naviga tion."). The rule as developed by the Supreme Court furthers the important goal of ensuring that a worker does "not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the wor ker was engaged while injured." Chandris, 515 U.S. at 363, 115

S.Ct. at 2187.

From these basic principles, the Court in Chandris set forth a two-part test to determine if an individual is entitled to Jones Act protection as a seaman:

First, as we emphasized in Wilander, `an emp loyee's duties must "contribut[e] to the function of the vessel or to the accomplishment of its mission.' " The Jones Act's protections, like the other admiralty protections for seamen, only extend to those maritime em ployees who do the ship's work. . . .

Second, . . . a seaman must have a connectio n to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of bot h its

duration and nature.

Id. at 368, 115 S.Ct. at 2190 (citations omitted). The Court also noted that although "seaman status is not mere ly a temporal concept, . . . it necessarily includes a t emporal element." Id. at 371, 115 S.Ct. at 2191. In fact, b oth portions of the Chandris test contain such an eleme nt, because a court must determine how broad a time per iod to consider when evaluating both an employee's duties and his or her connection to a vessel in navigation. 1

___________________________________________________ ______________

1. In addition, the second portion of the test cont ains a direct measurement of time through its durational element.

7In its appeal, Great Lakes focuses on this temporal

concept. Specifically, Great Lakes argues that in e valuating an employee's duties under the initial prong of the seaman status test, the fact-finder must consider only the activities of an employee at the time of his or her injury. Gr eat Lakes maintains that under this interpretation it is enti tled to a judgment as a matter of law, because it contends th at Shade was not acting as a seaman at the time of his injury. Alternatively, with respect to the latter portion o f the seaman status test, Great Lakes asserts that only e vidence regarding the employee's present assignment with hi s or her current employer is relevant and admissible to

establish a substantial connection to a vessel in n avigation. Thus, Great Lakes argues that if it does not receiv e a judgment as a matter of law, it is entitled to a ne w trial because the district court permitted Shade to intro duce evidence regarding his prior employment history.

After considering these arguments, we hold that Gre at Lakes is not entitled to a judgment as a matter of law with respect to Shade's seaman status, because Shade presented sufficient evidence to create an issue of fact for the jury to consider. However, we will reverse the judgment entered against Great Lakes, and remand this case t o the district court for a new trial, because the distric t court abused its discretion to admit evidence regarding S hade's prior employment history.2

B. Duties Of The Employee

Under the first portion of the Chandris seaman stat us test, an employee must demonstrate that his or her duties
" `contribute to the function of the vessel or to t he accomplishment of its mission.' " 515 U.S. at 368, 115 S.Ct. at 2190 (citation omitted). In satisfying this requ irement, the seaman does not have to aid the vessel in navig ation,

___________________________________________________ ______________

2. Great Lakes also raised a number of other issues in its appeal, such as the failure to hold a charge conference, the all eged inadequacy of the district court's jury charge, and the lack of a set -off against the judgment for the amounts Shade received under the L HWCA; however, we will not reach these issues on this appeal as th eir resolution could

not affect our result.

8see Wilander, 498 U.S. at 353, 111 S.Ct. at 816; ra ther, the

employee must merely "perform the work of the vesse l." Id. at 355, 111 S.Ct. at 817.3 While this part of the C handris test does not contain any express time component, s uch an element is implied, because a court must determine how broad a time period to consider when evaluating an employee's duties. Great Lakes argues for a narrow time limitation, stating that a court is to determine th e seaman status of an employee solely based on "the activity in which he was engaged at the time of injury." Desper v. St arved Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 21 8 (1952); see also Heise v. Fishing Co., 79 F.3d 903, 906-07 (9th Cir. 1996) ("The fact that if Heise performed well he might be hired to work on the ship when it left Sew ard if there were jobs available does not change his land- based status at the time the injury occurred." (emphasis added)). Applying this standard to the facts in this case, G reat Lakes contends that it is entitled to a judgment as a matter of law, because Shade was ashore assisting in the r efueling of a welding machine when he was injured.

The question of seaman status is often "fact specif ic," and "[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a `memb er of a crew,' it is a question for the jury." Wilander, 498 U.S. at 356, 111 S.Ct. at 818. However, "a directed verdict is

mandated where the facts and the law will reasonabl y support only one conclusion." Id. This court utiliz es a plenary standard to review a grant or denial of a j udgment as a matter of law. See Salas v. Wang, 846 F.2d 897 , 902 (3d Cir. 1988). A court should grant such a motion only "if,

___________________________________________________ ______________

3. The Court in Wilander definitively resolved the "inconsistent use of an aid in navigation requirement" that arose between 1 927 and 1946, "during which [time] the Court did not recognize th e mutual exclusivity of the [LHWCA] and the Jones Act." Id. at 348, 111 S.Ct. at 814. The Court explained that "the better rule" was to defin e seaman status "solely in terms of the employee's connection to a vessel in navigation." Id. at 354, 111 S.Ct. at 817. This rule would ensur e that the Jones Act would fulfill the purpose of protecting "[a]ll who work at sea in the service of a ship [and who] face those particular p erils to which the protection of maritime law, statutory as well as de cisional, is directed."

Id.

9viewing the evidence in the light most favorable to the

nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidenc e from which a jury reasonably could find liability." Ligh tning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 199 3).

Although the contours of the seaman status test rem ain difficult to apply, the Supreme Court has provided a number of relevant principles to guide our determin ation of this issue. First, the Court has emphasized that it s statusbased approach to the definition of the term seaman "determines Jones Act coverage without regard to th e precise activity in which the worker is engaged at the time of the injury." Chandris, 515 U.S. at 358, 115 S.Ct . at 2185; see also id. at 363, 115 S.Ct. at 2187 ("[C]o urts should not employ `a `snapshot' test for seaman sta tus, inspecting only the situation as it exists at the i nstant of injury; a more enduring relationship is contemplate d in the jurisprudence.' " (quoting Easley v. Southern Shipb uilding Corp., 965 F.2d 1, 5 (5th Cir. 1992))). By not focu sing exclusively on the activity of the employee at the time of injury, courts prevent a worker from oscillating"be tween Jones Act coverage and other remedies depending on the activity in which the worker was engaged while inju red." Id. at 363, 115 S.Ct. at 2187.

For instance, in Thibodeaux v. Torch, Inc., 858 F.2 d 1048, 1049 (5th Cir. 1988), the plaintiff sued under the Jones Act for injuries he sustained while working ashore. The employer argued that it was entitled to summary jud gment, because the plaintiff 's specific activities at the moment of his accident were not the work of a seaman, but rat her were "traditional" duties of a longshoreman. Id. at 1050. The Court of Appeals for the Fifth Circuit rejected the employer's position and held that the specific acti vity at the time of injury was "only one factor" in the analysi s of the employee's Jones Act seaman status. Id. at 1051; se e also Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (5th Cir. 1986); Savoie v. Otto Candies, Inc. , 692 F.2d 363, 365 (5th Cir. 1982); Guidry v. South La. Contractor s, Inc., 614 F.2d 447, 453 (1980); Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th Cir. 1977), rev'd on other ground s, 436 U.S. 618, 98 S.Ct. 2010 (1978). Thus, contrary to G reat

10Lakes' position, the employee's specific activity a t the time

of his or her injury is not dispositive of the issu e of seaman

status.

Second, although an examination based solely on the specific activity at the time of injury is too narr ow, the Supreme Court also has cautioned against too broad of a perspective in examining an employee's duties. In evaluating the duties of an employee under the seam an status test, courts should not consider an employee 's entire work history, but must consider only the nature of the employee's basic job assignment as it existed at th e time of injury. After all, as the Court has stated, "[w]hen a maritime worker's basic assignment changes, his sea man status may change as well." Chandris, 515 U.S. at 3 72, 115 S.Ct. at 2191. To illustrate this holding, the Cour t explained:

For example, we can imagine situations in wh ich someone who had worked for years in an emplo yer's shoreside headquarters is then reassigned to a ship in a classic seaman's job that involves a regul ar and continuous, rather than intermittent, commit ment of

the worker's labor to the function of a vess el. Such a person should not be denied seaman status if injured shortly after the reassignment, just as some one actually transferred to a desk job in the co mpany's office and injured in the hallway should not be entitled to claim seaman status on the basis of prior service at

sea.

Id. at 372, 115 S.Ct. at 2191. Thus, while a court must not concentrate exclusively on the employee's specific activity at the time of injury, a court should limit its examin ation of the employee's duties to the employee's basic job assignment as it existed at the time of injury.

Applying these principles to the present appeal, we cannot say that Great Lakes is entitled to a judgme nt as a matter of law. Although Shade was on shore assistin g in the refueling of a welding machine when he was inju red, this activity cannot be the sole determining factor to resolve whether Shade was a seaman. Instead, we must view Shade's status in the larger context of his employm ent-

11related duties. In deciding which duties to conside r, a

reasonable juror could conclude that Shade's entire performance at the Cape May job consisted of a sing le assignment, because his duties remained fairly cons tant during the pendency of that dredging operation. Und er this broader analysis, Shade presented sufficient eviden ce such that a reasonable jury could determine that his dut ies during the Cape May job contributed to the function of a vessel or to the accomplishment of its mission. Whi le working at Cape May, Shade spent a considerable amo unt of his time at the beginning of his employment work ing on the water with the anchor barge 110 to repair the submersible line. See app. at 473-75, 690-92. Beyon d this initial placement, Shade presented evidence at tria l that he spent significant time on the water as a deckhand o n a vessel in navigation performing his job responsibil ities. See id. at 311-14, 316-17, 473-84. Additionally, even S hade's

duties on the beach were not unrelated to the work of a vessel in navigation; instead, they contributed to the purpose of the dredging operation. Viewing this evi dence in a light most favorable to Shade, a reasonable juror could find that Shade's job responsibilities at Cape May consisted of a single job assignment and contributed to the f unction of a vessel in navigation, thereby satisfying thefi rst requirement of the Chandris test. Thus, because Sha de presented sufficient evidence for a reasonable juro r to find in his favor, the district court correctly denied G reat Lakes' motion for a judgment as a matter of law.4

C. Connection To A Vessel

Under the second part of the Chandris seaman status test, an employee must demonstrate that he or she h as "a connection to a vessel in navigation (or to an iden tifiable group of such vessels) that is substantial in terms of both its duration and nature." 515 U.S. at 368, 115 S.Ct . at

___________________________________________________ ______________

4. We note that in making this determination, we do not consider the evidence of Shade's prior employment history with G reat Lakes, because as we hold below, such evidence is inadmissible, an d thus cannot be considered by a court in deciding a motion for a ju dgment as a matter of law. See Lightning Lube, 4 F.3d at 1198-1200.

122190. Typically, this requirement is fulfilled by e xamining

the employee's connection with the vessel to which he or she was assigned at the time of his or her injury. However, in certain circumstances, this connection might not be sufficient to meet the substantiality requirement o f the seaman status test, even though the employee perfor ms traditional seaman activities on a regular and cont inuous basis. For example, the employee's job responsibili ties might require performance on a number of different vessels, rather than permitting a permanent connection to on e vessel. Confronted with this problem, courts have e nabled employees to fulfill the seaman status test by demonstrating that they are assigned to a fleet of vessels, rather than to only one vessel, under a doctrine kn own as the "Fleet Seaman Doctrine." See, e.g., Reeves v. M obile Dredging & Pumping Co., 26 F.3d 1247, 1253-55 (3d C ir. 1994) (describing the development of the doctrine). In fact, the Chandris test contemplates this doctrine, becau se it expressly permits an employee to demonstrate a conn ection not only "to a vessel in navigation," but also"to a n identifiable group of such vessels." 515 U.S. at 36 8, 115 S.Ct. at 2190. By permitting this aggregation, the Fleet

Seaman Doctrine thus ensures that a seaman receives Jones Act coverage even though he or she is not ass igned permanently to a specific vessel, but instead regul arly performs seaman's work on different vessels. See Gi zoni v. Southwest Marine Inc., 56 F.3d 1138, 1141 (9th Cir. 1995) ("Under the fleet seaman doctrine, one can acquire `seaman' status through permanent assignment to a group of v essels under common ownership or control.").

For instance, in Braniff v. Jackson Ave.-Gretna Fer ry, Inc., 280 F.2d 523, 528 (5th Cir. 1960), John Braniff wor ked as the "Superintendent in charge of all maintenance, r epair and overhaul work" for his employer. Id. at 525. In performing this job, he would travel from vessel to vessel, but would be stationed only temporarily at each ves sel. Braniff subsequently drowned while repairing a mach ine on one of his employer's ferries. See id. Based on his limited contact with the ferry, Braniff could not establish a substantial connection to a single vessel in naviga tion even though his job required him to perform seaman's dut ies on a regular and ongoing basis. In holding that Branif f could

13be a seaman under the Jones Act, the Court of Appea ls for

the Fifth Circuit permitted an aggregation of Brani ff 's connections to the other vessels in the fleet beyon d the single ferry he worked on immediately prior to his death, because he was " `assigned permanently' " to those vessels and performed " `a substantial part of his work on the' several specified `vessel(s).' " Id. at 528 (citin g Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959)).

We first considered the Fleet Seaman Doctrine in Re eves, 26 F.3d at 1256; and after determining that "the do ctrine comports well with and flows logically from Supreme Court precedent," we adopted the doctrine as "the rule of law in this circuit in analyzing Jones Act cases." Id. We held that "[t]he Fleet Seaman Doctrine in our view applies to an employee, one who is predominantly assigned by his employer to a navigable vessel, but who occasionall y is assigned by that same employer to non-navigable ves sels. It would also apply to one who is assigned to a number of navigable vessels and spends some time on shore, as in Braniff." Id. Thus, we adopted the doctrine to affo rd Jones Act protection to these types of employees, because "stripping seaman status from such an employee, or allowing that same employee to oscillate between se aman and non-seaman status . . . would be a travesty of justice."

Id.

In the present case, Shade had worked as a deckhand since 1974. See app. at 468. From September 1992 un til February 1994, Great Lakes employed Shade as a deckhand. See id. at 54-55, 509-10. However, beginn ing in March 1994, Shade worked for Bean-Weeks. See id. a t 55, 510. Great Lakes did not re-employ Shade until Dece mber 1994 for the Cape May job. See id. at 472. During t rial, Shade sought to introduce evidence regarding his employment history under the Fleet Seaman Doctrine in order to satisfy the substantiality requirement of the Chandris seaman status test. Over the objection of Great Lakes, the district court permitted Shade to offer two types of prior employment evidence. First, Shade introduc ed a general account of his work history, with Shade tes tifying that he had been working on the water since 1974, s ee id. at 468, and had been a deckhand "all my life," id. at 479,

14and with three other witnesses testifying that Shad e had

been a deckhand throughout his career. See id. at 617 (testimony of Thomas E. Chandler), 660-61 (testimon y of Joyner), 809 (testimony of Jackson). Second, the di strict court admitted specific evidence regarding Shade's work history as a deckhand for Great Lakes from Septembe r 1992 until February 1994. See id. at 54-55, 468-69, 842.

In its appeal, Great Lakes maintains that it is ent itled to a new trial because this prior employment evidence was not

relevant to the determination of Shade's seaman sta tus and

thus should not have been admitted under Fed. R. Ci v. P.

402.5 We exercise an abuse of discretion standard t o review "a denial of a request for a new trial based on the district court's alleged error in ruling on the admissibilit y of evidence." Affiliated Mfrs., Inc. v. Aluminum Co. o f America, 56 F.3d 521, 525 (3d Cir. 1995) (citing Lippay v. C hristos, 996 F.2d 1490, 1496 (3d Cir. 1993)). However, where "the district court's decision rests on the application of legal precepts, we exercise plenary review." Failla v. Ci ty of Passaic, 146 F.3d 149, 153 (3d Cir. 1998). We will grant Great Lakes a new trial, because we hold that the d istrict court abused its discretion in admitting evidence r egarding Shade's prior work history.6

Even though the Fleet Seaman Doctrine permits an employee to aggregate contacts with multiple vessel s, it is

clear that these contacts must have occurred with v essels owned or controlled by the same employer. As the Su preme Court has stated, "[c]onsidering prior employments with independent employers in making the seaman status inquiry would undermine `the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act . . . before a particular work day

___________________________________________________ ______________

5. Rule 402 provides: "All relevant evidence is adm issible, except as otherwise provided by the Constitution of the Unite d States, by Act of Congress, by these rules, or by other rules prescri bed by the Supreme Court, pursuant to statutory authority. Evidence wh ich is not relevant is

not admissible."

6. Arguably we should exercise plenary review on th e evidence issue. Of course, if we did, we would reach the same result. Thus, we do not prejudice Shade by using an abuse of discretion sta ndard.

15begins.' " Harbor Tug, 117 S.Ct. at 1541 (quoting C handris,

515 U.S. at 363, 115 S.Ct. at 2187). The Court held that without such a rule "[t]here would be no principled basis for limiting which prior employments are considered for determining seaman status." Id.; see also Reeves, 2 6 F.3d at 1257 (rejecting an attempt to introduce evidence of a prior employment with another employer under the Fl eet Seaman Doctrine because the prior employment "was simply unrelated" to his present job).

When introducing evidence concerning his general wo rk history, Shade and the other witnesses did not stat e with any specificity who employed him during his work ca reer. However, undoubtedly at least a portion of this evi dence concerned employment with employers other than Grea t Lakes. For instance, Shade testified that he worked for Bean-Weeks during a portion of 1994; and Shade prov ided evidence that out of his twenty year career, he wor ked for Great Lakes during the Cape May job and between September 1992 and February 1994. From this evidenc e, it is reasonable to conclude that this general work hi story evidence involved other employers beyond Great Lake s. Thus, because the evidence of Shade's general work history apparently referred to employment with independent employers, this testimony clearly was irrelevant to the determination of Shade's seaman status, and the dis trict court abused its discretion to have permitted the j ury to

consider it.7

The admission of evidence concerning Shade's specif ic work history with Great Lakes poses a more difficul t question. Typically, an employee introducing eviden ce of connections to other vessels in an employer's fleet under

the Fleet Seaman Doctrine has worked for the same employer on a continual, uninterrupted basis. See, e.g., Braniff, 280 F.2d at 525-26. Shade's connections to other vessels in Great Lakes' fleet, however, did not con cern a single employment period. Instead, Shade presented

___________________________________________________ ______________

7. Even if Shade's employment prior to 1992 had bee n with Great Lakes our result would be the same, because as we hold be low, such employment evidence is not admissible if the employ ment relationship

was not continuous.

16evidence of two distinct employment periods with Gr eat

Lakes in order to establish a substantial connectio n to a vessel in navigation: his final employment with Gre at Lakes from December 9, 1994, until December 30, 1994, and his previous employment with the company from September 1992 until February 1994. Between these two employm ent periods, Shade did not work for Great Lakes, and he had no

connection to Great Lakes or the vessels in itsflee t. Rather, Bean-Weeks employed him. Thus, in this unusual situation, we must determine whether the Fleet Seam an Doctrine permits Shade to aggregate his prior assig nments with Great Lakes and his work for the company at th e Cape May job to establish a substantial connection to a vessel in navigation, even though he was not employed continu ously by Great Lakes.

The Supreme Court's consideration of the substantia lity prong of the Chandris seaman status test in Harbor Tug, 520 U.S. 548, 117 S.Ct. 1535, provides some guidanc e to resolve this issue. In that case, John Papai, an em ployee of Harbor Tug & Barge Company, was injured while paint ing a tugboat. See Harbor Tug, 117 S.Ct. at 1538. Durin g the 2-1/4 years prior to his injury, Papai received var ious assignments with a number of different employers, including Harbor Tug, through a central union hirin g hall. See id. at 1538. In fact, during the 2-1/2 months p rior to his injury, Harbor Tug had employed Papai on 12 sep arate occasions. See id. at 1542. In attempt to establish a substantial connection to a vessel in navigation, P apai sought to introduce evidence of his prior employmen ts with Harbor Tug and with other employers. See id. at 154 0. After rejecting the evidence relating to other employers, the Court examined Papai's specific employments with Harbor T ug. See id. at 1542. Given the fact that Papai describe d a number of these jobs as non-deckhand work, the Cour t

held that "it would not be reasonable to infer" tha t the rest of his employments with Harbor Tug were of a seagoi ng nature. Id. Thus, the contacts would not seem to as sist Papai in establishing seaman status. More important ly, the Court stated "[i]n any event, these discrete engage ments were separate from the one in question, which was t he sort of `transitory or sporadic' connection to a vessel or group of vessels that . . . does not qualify one for seaman status." Id.

17(citation omitted). Thus, the Court held that these prior

assignments could not be used to establish seaman s tatus because they were separate from Papai's present employment.

The Court of Appeals for the Fifth Circuit has addr essed this question more directly in Patton-Tully Transp. Co. v. Ratliff, 797 F.2d 206 (5th Cir. 1986). In that case , Tommy Lee Ratliff worked for Patton-Tully Transportation Company from 1979 until he quit in May 1980; but he returne d to the company in September 1980 and worked there unti l his death in March 1981. See id. at 208. Subsequently, his mother filed a claim under the Jones Act against th e company, seeking to recover damages for the death o f her son. See id. at 209. In evaluating Ratliff 's seama n status, the court confronted the question of whether it sho uld consider both periods of Ratliff 's employment with PattonTully, or whether it only should consider Ratliff ' s final period of employment with the company. The court he ld that it should focus solely on Ratliff 's final per iod of employment, because "the four-month hiatus in Ratli ff 's employment was a significant break requiring separa te evaluation of his duties during the re-employment p eriod." Id. at 210. Thus, the court upheld the exclusion of evidence of a prior employment with the same employer, becau se the employee had not worked for the employer on a conti nuous basis. See also Reeves, 26 F.3d at 1256 ("The key t o the

Fleet Seaman Doctrine is that the seaman maintain t he employment relationship with the same employer.").

Excluding such evidence is consistent with the Flee t Seaman Doctrine. Although the doctrine developed as a means to protect employees from losing seaman statu s "when on temporary non-navigable assignments or whe n assignments preclude attachment to one," Reeves, 26 F.3d at 1256, the doctrine specifically excludes individ uals who perform seaman's work on multiple vessels, but do s o as part of their employment with multiple employers. S ee Harbor Tug, 117 S.Ct. at 1541. The distinction deve loped in part because each new assignment with a different employer is distinct from the employee's prior jobs with other employers, and "[n]o principled basis" existe d to limit "which prior employments are considered for determi ning

18seaman status." Id. This distinction served the pur pose of

permitting "employers and maritime workers alike" t o predict the Jones Act status of an employee based o n the job for which the employer hired the individual, ra ther than based on the prior experiences of the employee with an independent employer. Id.

Applying this rationale to a situation where an employment relationship is terminated and subsequen tly the employer rehires the employee, the employee's p osture is more akin to those excluded by the doctrine rath er than those afforded protection under it. After the termi nation of the employment relationship, the employee severs an y duties that the employee had towards the employer w ith respect to the performance of the former job. The e mployee does not have any ongoing or regular responsibiliti es relating to the vessels in the former employer'sfle et. Upon being rehired, the employee does not recapture that prior relationship. Instead, the employee adopts a prospe ctive set of duties and responsibilities that may be distinct from the employee's former performance, and the connections the employee once had to any vessels in the employer'sf leet are thus separate from the employee's new status. In ef fect, the employment in the new position could be considered to be for an entirely different employer, and as such, ev idence of the prior employment would have no relevance to the employee's later position with the employer. Thus, we hold that evidence of an employee's prior assignment wit h the same employer is not admissible under the Fleet Sea man Doctrine if those assignments were not part of a co ntinuous employment relationship between the employer and employee.8

Shade severed all ties with Great Lakes and with hi s prior assignments with the company by working for B eanWeeks. When Shade returned to Great Lakes after

___________________________________________________ ______________

8. Conceivably there could be such a short interrup tion in an otherwise continuous employment relationship that it might be reasonable to regard the employment as practically continuous and thus to apply the Fleet Seaman Doctrine. Here, however, the interrupt ion was not so short,

and Shade worked for Bean-Weeks in the interim. The se facts preclude a finding that Great Lakes' employment of Shade was practically

continuous.

19approximately ten months, his final employment only

concerned the Cape May job and his duties during th at dredging operation. He had no regular responsibilit ies that required him to move from vessel to vessel in Great Lakes' fleet; instead, he was hired for a distinct job and only could establish a connection to vessels being used at the Cape May dredging operation. Thus, because he did not ma intain a continuous employment relationship with the compa ny, the evidence of Shade's prior employment with Great Lakes was completely irrelevant to the determination of h is seaman status, and the district court abused its di scretion to have admitted this prior employment history into

evidence.

Because the district court abused its discretion to admit Shade's prior employment history into evidence,"we must

reverse unless we find that its admission was harml ess error." Lippay, 996 F.2d at 1500. An error is harml ess if "it is highly probable that the error did not substanti ally affect" the judgment. Id. The issue of seaman statu s was one of the central issues at trial and was the subj ect of a great deal of disputed evidence. The admission of S hade's prior work history was significant, because it perm itted Shade to argue to the jury that he should be consid ered a seaman based on the status he held during his prior employment assignments and regardless of his actual status at Cape May. During closing arguments, Shade 's

counsel stated:

[T]he Supreme Court has said that in evaluat ing the status of an individual, you do not look at what he was doing on the day of the injury, or even at t he time of the injury. You look at Mr. Shade's history with this company Great Lakes.

And if you do that, you will know that Mr. Shade has always been a seaman for Great Lakes . . . .

And you also know that while he was on the beach [at Cape May] he was called out to perform f unctions on the sea. That is not necessary for you to find. You can find that he wasn't, and still determine he was a seaman, because, as the records will show, h e has worked for Great Lakes for over four years, every time as a seaman, as a deck hand.

20App. at 849. Because of the centrality of the issue and the

extremely prejudicial use of this evidence, we cann ot say that it is highly probable that the error did not a ffect the verdict.9 Therefore, we will reverse the judgment a nd

remand this matter for a new trial in a matter cons istent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

___________________________________________________ ______________

9. We do not preclude admission of evidence of the character leading to

the reversal here if the evidence is admitted for a purpose other than to establish an employee's seaman status. Of course, i n the event that such evidence is admitted, the district court should giv e an appropriate

instruction as to its use.

21