1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-1998

Shade v. Great Lakes Dredge

Precedential or Non-Precedential:

Docket 97-2023

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Recommended Citation

"Shade v. Great Lakes Dredge" (1998). 1998 Decisions. Paper 212.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/212
Filed 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 Appellant 
 Marvin 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 its 

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 pursuant to 

28 U.S.C. S 1291. 

II. FACTUAL AND PROCEDURAL HISTORY 

The U.S. Army Corps of Engineers awarded Great Lakes 

a contract to dredge and renourish the beach at Cape May, 

New Jersey, which Great Lakes began performing on 

November 12, 1994. This project consisted of removing 

sand from the ocean floor at offshore locations and

transferring the sand to the beach through 6600 feet of 

steel pipe, known as the submersible line. See app. at 637- 

40. The dredge Long Island removed the sand from the 

ocean floor; and once its hopper compartments were full, 

the tug Conlon propelled the dredge to a self-contained 

offshore transfer station buoy ("scots buoy"), a large round 

floating buoy secured by four anchors. See id. at 337, 689. 

In order to transport the sand to the beach, the dredge 

would secure itself to a pipe attached to the scots buoy 

which in turn was connected to the submersible line. The 

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

through the submersible line. Upon reaching the beach, the 

submersible line ended at a "Y" valve. This valve, which 

controlled the flow of the sand, connected the submersible 

line to an additional line, known as the shore line, 

extending in both directions along the beach parallel to the 

ocean. As the sand flowed out of either end of the shore 

line, bulldozers positioned the sand on the beach according 

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 assist 

in such dredging projects; and in the four years prior to his 

injury, the majority of his work had been with Great Lakes. 

See id. at 468-69. Shade received his work assignments 

through his union, Local 25, Marine Division, International 

Union of Operating Engineers, AFL-CIO. When he was 

unemployed, Shade would place his name on the out-ofwork list until Local 25 assigned him to a new job. See id. 

at 346-48, 519-20. 

Great Lakes previously employed Shade from September 

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 contractor, as 

a deckhand. See id. at 55, 510. Bean-Weeks subsequently 

fired Shade, and he remained without work until Great 

Lakes hired him for the Cape May job. 

Great Lakes asserted that it hired Shade for Cape May as 

a shoreman, see id. at 648, pursuant to its contract with 

Local 25 which mandated the hiring of a shoreman for this 

type of job. See id. at 69, 684-87. In fact, Great Lakes' 

superintendent, David P. Rappe, and the Local 25 union 

steward, Cecil C. Jackson, Sr., both testified that Great 

Lakes hired Shade as a shoreman. See id. at 687, 794; 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 Lakes 

hired him as a deckhand assigned to the anchor barge 110, 

which assisted in the dredging operation, see id. at 479, 

 3 
and that the shore gang was already in place when he 

arrived to work at Cape May. See id. at 472. Both Shade 

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 testified that 

Shade was on the water 90% of the time that he worked at 

the Cape May project. See id. at 316-17. 

When Shade arrived at Cape May, the submersible line 

had been laid, the scots buoy was in place, and the Long 

Island had begun to dig the first portion of sand from the 

ocean floor. See id. at 473, 642-43, 681-83, 793-94. The 

dredge filled its hoppers and connected to the scots buoy, 

but it was not able to pump the sand to the beach because 

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 of 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 submersible 

line, the Long Island once again had the capacity to pump 

sand to the beach. However, between December 13th and 

December 30th, the dredge only operated from the evening 

of December 19th until December 22nd and from the 

evening of December 25th until December 30th because 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 welders 

and waiting on standby in case the weather cleared. See id. 

at 601-02, 699-700, 745-46. Shade, on the other hand, 

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 helped 

construct a second submersible line, see id. at 480, and 

assisted in repairing the scots buoy. See id. at 558-59; 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 shore line, 

operated the "Y" valve, and put fuel in welding machines. 

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

account of his work between December 19th and December 

22nd, and testified that he worked on the water during that 

period. See id. at 556. However, he did not dispute that he 

primarily worked on the beach performing these shore 

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 operating 

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 able to 

reattach his thumb, see id. at 491, he basically has no use 

of the thumb, see id. at 501-02, and could not return to 

work in his prior capacity. See id. at 502-03. 

After initially receiving benefits under the Longshore and 

Harbor Workers' Compensation Act, 33 U.S.C. S 901 et seq. 

("LHWCA"), Shade filed a complaint against Great Lakes on 

January 31, 1997, seeking damages under the Jones Act, 

46 U.S.C. app. S 688(a), and the general maritime law 

doctrine of unseaworthiness. On September 8, 1997, Great 

Lakes filed a motion for summary judgment on the ground 

that Shade was not a seaman. The district court denied this 

motion without opinion on September 24, 1997. On 

October 7, 1997, Great Lakes filed a motion in limine to 

preclude testimony at trial regarding Shade's prior

employment with Great Lakes. The district court, however, 

deferred ruling on the motion and at the trial ultimately 

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 the 

Jones Act claim. At the conclusion of the presentation of 

Shade's evidence, Great Lakes moved under Fed. R. Civ. 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, the district 

court deferred ruling on that motion. See id. at 589. Great 

Lakes renewed its Rule 50 motion at the conclusion of all 

 5 
of 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, 1997, 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 court entered 

judgment against Great Lakes on October 22, 1997. See id. 

at 7. Great Lakes subsequently filed a renewed motion to 

alter or amend the judgment pursuant to Fed. R. Civ. P. 

50(b), or, in the alternative, for a new trial under Fed. R. 

Civ. P. 59. See app. at 7. However, the district court denied 

this motion on November 19, 1997, and Great Lakesfiled 

its timely notice of appeal on December 18, 1997. See 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 employment 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"seaman" 

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 opinions, 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 noted 

that prior cases recognized "a fundamental distinction 

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 

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

the vessel, and his relationship as such to the vessel and 

its operation in navigable waters," id. at 359-60, 115 S.Ct. 

at 2185, and not on the situs of injury, because"landbased maritime workers do not become seamen because

they happen to be working on board a vessel when they are 

injured, and seamen do not lose Jones Act protection when 

the course of their service to a vessel takes them ashore." 

Id. at 361, 115 S.Ct. at 2186; see also Wilander, 498 U.S. 

at 355, 111 S.Ct. at 817 ("The key to seaman status . . . is 

employment-related connection to a vessel in navigation."). 

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 worker 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 employee'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 employees 

 who do the ship's work. . . . 

 Second, . . . a seaman must have a connection to a 

 vessel in navigation (or to an identifiable group of such 

 vessels) that is substantial in terms of both its 

 duration and nature. 

Id. at 368, 115 S.Ct. at 2190 (citations omitted). The Court 

also noted that although "seaman status is not merely a 

temporal concept, . . . it necessarily includes a temporal 

element." Id. at 371, 115 S.Ct. at 2191. In fact, both 

portions of the Chandris test contain such an element, 

because a court must determine how broad a time period 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 contains a direct 

measurement of time through its durational element.

 7 
In its appeal, Great Lakes focuses on this temporal

concept. Specifically, Great Lakes argues that in evaluating 

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. Great Lakes 

maintains that under this interpretation it is entitled to a 

judgment as a matter of law, because it contends that 

Shade was not acting as a seaman at the time of his injury. 

Alternatively, with respect to the latter portion of the 

seaman status test, Great Lakes asserts that only evidence 

regarding the employee's present assignment with his or 

her current employer is relevant and admissible to 

establish a substantial connection to a vessel in navigation. 

Thus, Great Lakes argues that if it does not receive a 

judgment as a matter of law, it is entitled to a new trial 

because the district court permitted Shade to introduce 

evidence regarding his prior employment history. 

After considering these arguments, we hold that Great 

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 to the 

district court for a new trial, because the district court 

abused its discretion to admit evidence regarding Shade's 

prior employment history.2 

B. Duties Of The Employee 

Under the first portion of the Chandris seaman status 

test, an employee must demonstrate that his or her duties 

" `contribute to the function of the vessel or to the 

accomplishment of its mission.' " 515 U.S. at 368, 115 S.Ct. 

at 2190 (citation omitted). In satisfying this requirement, 

the seaman does not have to aid the vessel in navigation, 

_________________________________________________________________ 

2. Great Lakes also raised a number of other issues in its appeal, such 

as the failure to hold a charge conference, the alleged 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 LHWCA; however, 

we will not reach these issues on this appeal as their resolution could 

not affect our result. 

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

employee must merely "perform the work of the vessel." Id. 

at 355, 111 S.Ct. at 817.3 While this part of the Chandris 

test does not contain any express time component, such 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 the seaman 

status of an employee solely based on "the activity in which 

he was engaged at the time of injury." Desper v. Starved 

Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218 

(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 Seward 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, Great 

Lakes contends that it is entitled to a judgment as a matter 

of law, because Shade was ashore assisting in the refueling 

of a welding machine when he was injured. 

The question of seaman status is often "fact specific," and 

"[i]f reasonable persons, applying the proper legal standard, 

could differ as to whether the employee was a `member 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 reasonably 

support only one conclusion." Id. This court utilizes a 

plenary standard to review a grant or denial of a judgment 

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 1927 and 1946, 

"during which [time] the Court did not recognize the 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 define 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 ensure 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 perils to which the 

protection of maritime law, statutory as well as decisional, is directed." 

Id. 

 9 
viewing the evidence in the light most favorable to the 

nonmovant and giving it the advantage of every fair and 

reasonable inference, there is insufficient evidence from 

which a jury reasonably could find liability." Lightning Lube, 

Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). 

Although the contours of the seaman status test remain 

difficult to apply, the Supreme Court has provided a 

number of relevant principles to guide our determination of 

this issue. First, the Court has emphasized that its statusbased approach to the definition of the term seaman

"determines Jones Act coverage without regard to the 

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]ourts 

should not employ `a `snapshot' test for seaman status, 

inspecting only the situation as it exists at the instant of 

injury; a more enduring relationship is contemplated in the 

jurisprudence.' " (quoting Easley v. Southern Shipbuilding 

Corp., 965 F.2d 1, 5 (5th Cir. 1992))). By not focusing 

exclusively on the activity of the employee at the time of 

injury, courts prevent a worker from oscillating"between 

Jones Act coverage and other remedies depending on the 

activity in which the worker was engaged while injured." Id. 

at 363, 115 S.Ct. at 2187. 

For instance, in Thibodeaux v. Torch, Inc., 858 F.2d 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 judgment, 

because the plaintiff 's specific activities at the moment of 

his accident were not the work of a seaman, but rather 

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 activity at the 

time of injury was "only one factor" in the analysis of the 

employee's Jones Act seaman status. Id. at 1051; see 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. Contractors, Inc., 

614 F.2d 447, 453 (1980); Higginbotham v. Mobil Oil Corp., 

545 F.2d 422 (5th Cir. 1977), rev'd on other grounds, 436 

U.S. 618, 98 S.Ct. 2010 (1978). Thus, contrary to Great 

 10 
Lakes' position, the employee's specific activity at the time 

of his or her injury is not dispositive of the issue of seaman 

status. 

Second, although an examination based solely on the

specific activity at the time of injury is too narrow, 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 seaman 

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 the time of 

injury. After all, as the Court has stated, "[w]hen a 

maritime worker's basic assignment changes, his seaman 

status may change as well." Chandris, 515 U.S. at 372, 115 

S.Ct. at 2191. To illustrate this holding, the Court 

explained: 

 For example, we can imagine situations in which 

 someone who had worked for years in an employer's 

 shoreside headquarters is then reassigned to a ship in 

 a classic seaman's job that involves a regular and 

 continuous, rather than intermittent, commitment of 

 the worker's labor to the function of a vessel. Such a 

 person should not be denied seaman status if injured 

 shortly after the reassignment, just as someone 

 actually transferred to a desk job in the company'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 examination 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 judgment as a 

matter of law. Although Shade was on shore assisting in 

the refueling of a welding machine when he was injured, 

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 employment- 

 11 
related duties. In deciding which duties to consider, a 

reasonable juror could conclude that Shade's entire

performance at the Cape May job consisted of a single 

assignment, because his duties remained fairly constant 

during the pendency of that dredging operation. Under this 

broader analysis, Shade presented sufficient evidence such 

that a reasonable jury could determine that his duties 

during the Cape May job contributed to the function of a 

vessel or to the accomplishment of its mission. While 

working at Cape May, Shade spent a considerable amount 

of his time at the beginning of his employment working on 

the water with the anchor barge 110 to repair the 

submersible line. See app. at 473-75, 690-92. Beyond this 

initial placement, Shade presented evidence at trial that he 

spent significant time on the water as a deckhand on a 

vessel in navigation performing his job responsibilities. See 

id. at 311-14, 316-17, 473-84. Additionally, even Shade'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 evidence 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 function 

of a vessel in navigation, thereby satisfying thefirst 

requirement of the Chandris test. Thus, because Shade 

presented sufficient evidence for a reasonable juror to find 

in his favor, the district court correctly denied Great 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 has "a 

connection to a vessel in navigation (or to an identifiable 

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 Great Lakes, because 

as we hold below, such evidence is inadmissible, and thus cannot be 

considered by a court in deciding a motion for a judgment as a matter 

of law. See Lightning Lube, 4 F.3d at 1198-1200. 

 12 
2190. Typically, this requirement is fulfilled by examining 

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 of the 

seaman status test, even though the employee performs 

traditional seaman activities on a regular and continuous 

basis. For example, the employee's job responsibilities 

might require performance on a number of different vessels, 

rather than permitting a permanent connection to one 

vessel. Confronted with this problem, courts have enabled 

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 known as 

the "Fleet Seaman Doctrine." See, e.g., Reeves v. Mobile 

Dredging & Pumping Co., 26 F.3d 1247, 1253-55 (3d Cir. 

1994) (describing the development of the doctrine). In fact, 

the Chandris test contemplates this doctrine, because it 

expressly permits an employee to demonstrate a connection 

not only "to a vessel in navigation," but also"to an 

identifiable group of such vessels." 515 U.S. at 368, 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 assigned 

permanently to a specific vessel, but instead regularly 

performs seaman's work on different vessels. See Gizoni 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 vessels 

under common ownership or control."). 

For instance, in Braniff v. Jackson Ave.-Gretna Ferry, Inc., 

280 F.2d 523, 528 (5th Cir. 1960), John Braniff worked as 

the "Superintendent in charge of all maintenance, repair 

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 vessel. 

Braniff subsequently drowned while repairing a machine 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 navigation even 

though his job required him to perform seaman's duties on 

a regular and ongoing basis. In holding that Braniff could 

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

the Fifth Circuit permitted an aggregation of Braniff 's 

connections to the other vessels in the fleet beyond 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 (citing Offshore Co. 

v. Robison, 266 F.2d 769, 779 (5th Cir. 1959)). 

We first considered the Fleet Seaman Doctrine in Reeves, 

26 F.3d at 1256; and after determining that "the doctrine 

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 occasionally is 

assigned by that same employer to non-navigable vessels. 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 afford Jones 

Act protection to these types of employees, because

"stripping seaman status from such an employee, or 

allowing that same employee to oscillate between seaman 

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 until 

February 1994, Great Lakes employed Shade as a 

deckhand. See id. at 54-55, 509-10. However, beginning in 

March 1994, Shade worked for Bean-Weeks. See id. at 55, 

510. Great Lakes did not re-employ Shade until December 

1994 for the Cape May job. See id. at 472. During trial, 

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 introduced a 

general account of his work history, with Shade testifying 

that he had been working on the water since 1974, see id. 

at 468, and had been a deckhand "all my life," id. at 479, 

 14 
and with three other witnesses testifying that Shade had 

been a deckhand throughout his career. See id. at 617 

(testimony of Thomas E. Chandler), 660-61 (testimony of 

Joyner), 809 (testimony of Jackson). Second, the district 

court admitted specific evidence regarding Shade's work 

history as a deckhand for Great Lakes from September 

1992 until February 1994. See id. at 54-55, 468-69, 842. 

In its appeal, Great Lakes maintains that it is entitled to 

a new trial because this prior employment evidence was not 

relevant to the determination of Shade's seaman status and 

thus should not have been admitted under Fed. R. Civ. P. 

402.5 We exercise an abuse of discretion standard to review 

"a denial of a request for a new trial based on the district 

court's alleged error in ruling on the admissibility of 

evidence." Affiliated Mfrs., Inc. v. Aluminum Co. of America, 

56 F.3d 521, 525 (3d Cir. 1995) (citing Lippay v. Christos, 

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. City of 

Passaic, 146 F.3d 149, 153 (3d Cir. 1998). We will grant 

Great Lakes a new trial, because we hold that the district 

court abused its discretion in admitting evidence regarding 

Shade's prior work history.6 

Even though the Fleet Seaman Doctrine permits an 

employee to aggregate contacts with multiple vessels, it is 

clear that these contacts must have occurred with vessels 

owned or controlled by the same employer. As the Supreme 

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 admissible, except as 

otherwise provided by the Constitution of the United States, by Act of 

Congress, by these rules, or by other rules prescribed by the Supreme 

Court, pursuant to statutory authority. Evidence which is not relevant is 

not admissible." 

6. Arguably we should exercise plenary review on the 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 standard. 

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

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, 26 F.3d 

at 1257 (rejecting an attempt to introduce evidence of a 

prior employment with another employer under the Fleet 

Seaman Doctrine because the prior employment "was 

simply unrelated" to his present job). 

When introducing evidence concerning his general work 

history, Shade and the other witnesses did not state with 

any specificity who employed him during his work career. 

However, undoubtedly at least a portion of this evidence 

concerned employment with employers other than Great 

Lakes. For instance, Shade testified that he worked for 

Bean-Weeks during a portion of 1994; and Shade provided 

evidence that out of his twenty year career, he worked for 

Great Lakes during the Cape May job and between 

September 1992 and February 1994. From this evidence, it 

is reasonable to conclude that this general work history 

evidence involved other employers beyond Great Lakes. 

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 district 

court abused its discretion to have permitted the jury to 

consider it.7 

The admission of evidence concerning Shade's specific 

work history with Great Lakes poses a more difficult 

question. Typically, an employee introducing evidence 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 concern a 

single employment period. Instead, Shade presented 

_________________________________________________________________ 

7. Even if Shade's employment prior to 1992 had been with Great Lakes 

our result would be the same, because as we hold below, such 

employment evidence is not admissible if the employment relationship 

was not continuous. 

 16 
evidence of two distinct employment periods with Great 

Lakes in order to establish a substantial connection to a 

vessel in navigation: his final employment with Great 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 employment 

periods, Shade did not work for Great Lakes, and he had no 

connection to Great Lakes or the vessels in itsfleet. Rather, 

Bean-Weeks employed him. Thus, in this unusual 

situation, we must determine whether the Fleet Seaman 

Doctrine permits Shade to aggregate his prior assignments 

with Great Lakes and his work for the company at the Cape 

May job to establish a substantial connection to a vessel in 

navigation, even though he was not employed continuously 

by Great Lakes. 

The Supreme Court's consideration of the substantiality 

prong of the Chandris seaman status test in Harbor Tug, 

520 U.S. 548, 117 S.Ct. 1535, provides some guidance to 

resolve this issue. In that case, John Papai, an employee of 

Harbor Tug & Barge Company, was injured while painting 

a tugboat. See Harbor Tug, 117 S.Ct. at 1538. During the 

2-1/4 years prior to his injury, Papai received various 

assignments with a number of different employers, 

including Harbor Tug, through a central union hiring hall. 

See id. at 1538. In fact, during the 2-1/2 months prior to 

his injury, Harbor Tug had employed Papai on 12 separate 

occasions. See id. at 1542. In attempt to establish a 

substantial connection to a vessel in navigation, Papai 

sought to introduce evidence of his prior employments with 

Harbor Tug and with other employers. See id. at 1540. After 

rejecting the evidence relating to other employers, the Court 

examined Papai's specific employments with Harbor Tug. 

See id. at 1542. Given the fact that Papai described a 

number of these jobs as non-deckhand work, the Court 

held that "it would not be reasonable to infer" that the rest 

of his employments with Harbor Tug were of a seagoing 

nature. Id. Thus, the contacts would not seem to assist 

Papai in establishing seaman status. More importantly, the 

Court stated "[i]n any event, these discrete engagements 

were separate from the one in question, which was the 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 status 

because they were separate from Papai's present 

employment. 

The Court of Appeals for the Fifth Circuit has addressed 

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 returned to 

the company in September 1980 and worked there until his 

death in March 1981. See id. at 208. Subsequently, his 

mother filed a claim under the Jones Act against the 

company, seeking to recover damages for the death of her 

son. See id. at 209. In evaluating Ratliff 's seaman status, 

the court confronted the question of whether it should 

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 held 

that it should focus solely on Ratliff 's final period of 

employment, because "the four-month hiatus in Ratliff 's 

employment was a significant break requiring separate 

evaluation of his duties during the re-employment period." 

Id. at 210. Thus, the court upheld the exclusion of evidence 

of a prior employment with the same employer, because the 

employee had not worked for the employer on a continuous 

basis. See also Reeves, 26 F.3d at 1256 ("The key to the 

Fleet Seaman Doctrine is that the seaman maintain the 

employment relationship with the same employer."). 

Excluding such evidence is consistent with the Fleet 

Seaman Doctrine. Although the doctrine developed as a 

means to protect employees from losing seaman status 

"when on temporary non-navigable assignments or when 

assignments preclude attachment to one," Reeves, 26 F.3d 

at 1256, the doctrine specifically excludes individuals who 

perform seaman's work on multiple vessels, but do so as 

part of their employment with multiple employers. See 

Harbor Tug, 117 S.Ct. at 1541. The distinction developed 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" existed to limit 

"which prior employments are considered for determining 

 18 
seaman status." Id. This distinction served the purpose of 

permitting "employers and maritime workers alike" to 

predict the Jones Act status of an employee based on the 

job for which the employer hired the individual, rather 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 subsequently 

the employer rehires the employee, the employee's posture 

is more akin to those excluded by the doctrine rather than 

those afforded protection under it. After the termination of 

the employment relationship, the employee severs any 

duties that the employee had towards the employer with 

respect to the performance of the former job. The employee 

does not have any ongoing or regular responsibilities 

relating to the vessels in the former employer'sfleet. Upon 

being rehired, the employee does not recapture that prior 

relationship. Instead, the employee adopts a prospective 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'sfleet are 

thus separate from the employee's new status. In effect, the 

employment in the new position could be considered to be 

for an entirely different employer, and as such, evidence 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 with the 

same employer is not admissible under the Fleet Seaman 

Doctrine if those assignments were not part of a continuous 

employment relationship between the employer and 

employee.8 

Shade severed all ties with Great Lakes and with his 

prior assignments with the company by working for BeanWeeks. When Shade returned to Great Lakes after 

_________________________________________________________________ 

8. Conceivably there could be such a short interruption 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 interruption was not so short, 

and Shade worked for Bean-Weeks in the interim. These facts preclude 

a finding that Great Lakes' employment of Shade was practically 

continuous. 

 19 
approximately ten months, his final employment only

concerned the Cape May job and his duties during that 

dredging operation. He had no regular responsibilities 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 maintain 

a continuous employment relationship with the company, 

the evidence of Shade's prior employment with Great Lakes 

was completely irrelevant to the determination of his 

seaman status, and the district court abused its discretion 

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 harmless 

error." Lippay, 996 F.2d at 1500. An error is harmless if "it 

is highly probable that the error did not substantially 

affect" the judgment. Id. The issue of seaman status was 

one of the central issues at trial and was the subject of a 

great deal of disputed evidence. The admission of Shade's 

prior work history was significant, because it permitted 

Shade to argue to the jury that he should be considered 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 evaluating the 

 status of an individual, you do not look at what he was 

 doing on the day of the injury, or even at the 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 functions 

 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, he has 

 worked for Great Lakes for over four years, every time 

 as a seaman, as a deck hand. 

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

extremely prejudicial use of this evidence, we cannot say 

that it is highly probable that the error did not affect the 

verdict.9 Therefore, we will reverse the judgment and 

remand this matter for a new trial in a matter consistent 

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, in the event that such 

evidence is admitted, the district court should give an appropriate 

instruction as to its use. 

 21