New "Saving to Suitors" Case

[Libertarian]

Filed 5/13/08
CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN



DANIEL C. PRICE,

Plaintiff and Appellant,

v.

CONNOLLY-PACIFIC CO.,

Defendant and Respondent.
B200083

(Los Angeles County
Super. Ct. No. NC041250)




APPEAL from a judgment of the Superior Court of Los Angeles County. Roy L. Paul, Judge. Affirmed.

McGuinn, Hillsman & Palefsky and John R. Hillsman; Law Offices of Charles D. Naylor and Charles D. Naylor for Plaintiff and Appellant.

Cox, Wootton, Griffin, Hansen & Poulos, Richard C. Wootton, Mitchell S. Griffin and Christopher S. Kieliger for Defendant and Respondent.

_____________________________

INTRODUCTION

This appeal involves an admiralty claim. For purposes of focus and orientation it appears prudent to state the grounds for state court jurisdiction in the opening portion of the opinion. Article III of the United States Constitution gives federal courts exclusive jurisdiction over all admiralty and maritime matters, but 28 United States Code section 1333, subdivision (1) grants state courts concurrent jurisdiction under the so called “saving to suitors clause.” This clause provides for in personam remedies which “means that an injured party may have claims arising from a single accident under both federal maritime and state common or statutory law. State remedies under the savings to suitors clause may be pursued in state court or, if there is a basis for federal jurisdiction, in federal court. [Citation.] A maritime claim brought in the common law state courts is governed by federal maritime law, however.” (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 563.) This is sometimes referred to as the reverse-Erie doctrine. This appeal does not raise an issue of jurisdiction.
The case was tried without a jury. No material facts are in dispute. The parties filed a document in the trial court on December 7, 2006, entitled “Stipulated Findings of Fact and Conclusions of Law.”
Plaintiff and appellant Daniel C. Price (“Price”) is a “seaman” under the terms and conditions of the Jones Act which was enacted in 1920 to give protection to any seaman injured in the course of employment. The Jones Act was codified in title 46, United States Code Appendix, section 688 and renumbered title 46, United States Code Appendix, section 30104 on October 6, 2006, pursuant to Public Law No. 109-304, 120 Stat. 1485 (2006). This appeal does not raise an issue of Price’s status as a seaman under the Jones Act.
Price was an operating engineer, a licensed merchant mariner, and a crew member of a special purpose derrick barge named the “Long Beach.” At all times relevant, The Long Beach was owned and operated by defendant and respondent, Connolly-Pacific Co. (“Connolly”).
Price is referred to in this litigation as a “commuter seaman” or sometimes as a “brown water seaman.” These terms are contrasted with the term “blue water seaman.” As the names imply, commuter seaman are those employees who commute to and from their place of employment but are not required to live aboard the vessel where they are employed. Blue water seamen, by contrast, live aboard a vessel by necessity in most instances by virtue of the vessel’s activity in offshore or distant waters.
Price’s affliction was caused by a vector-borne sickness commonly called “West Nile encephalitis,” as a result of being bitten by mosquito carriers. The sickness resulted in his being unable to return to work for Connolly and more specifically to the Long Beach, which led to his termination of employment by Connolly.
Price sued Connolly in the Los Angeles County Superior Court contending that he was entitled to “maintenance and cure.” Price states in his opening brief on appeal that “The term ‘maintenance’ refers to a vessel owner’s centuries-old duty to provide ill or injured seamen with food and lodging up to the point of maximum medical recovery, and ‘cure’ entails the concomitant obligation to provide all necessary medical care.” Price cites Gardiner v. Sea-Land Service, Inc. (9th Cir. 1986) 786 F.2d 943, 945-946 for these definitions. Connolly does not take issue with these definitions.
The gravamen of Connolly’s defense and denial of its obligation to provide maintenance and cure in this instance is the failure of Price to carry his burden of proof to show that the mosquito bite or bites occurred while Price was in the service of a ship, namely, the Long Beach. The trial court was ultimately persuaded, after an extensive and well argued bench trial with penetrating questions from the court, that Price had failed to carry his burden of proof.
With these introductory comments in mind we now turn to giving a more complete statement of the facts and proceeding in the trial court.

FACTUAL AND PROCEDURAL SYNOPSIS

As indicated, the parties filed a document in the trial court entitled “Stipulated Findings of Fact and Conclusions of Law.” According to the stipulation, the relevant facts are summarized as follows:
Connolly-Pacific is a marine construction contractor based in Long Beach Harbor. Its work includes the construction, demolition and repair of piers, wharves, docks, and other waterfront facilities. Connolly-Pacific’s work in 2004 included a pier reconstruction project at Berth 100 in the Port of Los Angeles.
Appellant Price was a marine construction worker who resided in La Mesa, in San Diego County. In August, 2004, the Appellant was a member of the Operating Engineers Union, Local No. 12. Local 12 was a party to a collective bargaining agreement with Connolly-Pacific and dispatched workers to Connolly-Pacific pursuant to that agreement, to work on projects in the Los Angeles/Long Beach harbor area.
On August 5, 2004, Local 12 dispatched the Appellant to Connolly-Pacific, which assigned him to work at the pier reconstruction project at Berth 100 as the winch operator on the D.B. LONG BEACH. Connolly-Pacific employed the Appellant as a “seaman” within the meaning of the Jones Act, 46 U.S.C.A. § 688(a), throughout his employment at Berth 100. He worked on board the derrick barge five days-a-week, Monday through Friday, from 7:00 a.m. to 3:30 p.m. Because his home was so far from the job site, the Appellant requested permission to park his camper truck in a Connolly-Pacific parking lot near the job site so he could live there during the work week. Connolly-Pacific granted permission and the Appellant only returned home to La Mesa on weekends.
The collective bargaining agreement between Connolly-Pacific and the unions who represented the members of the derrick barge crew did not require Connolly-Pacific to provide any crew members with a commuting or housing allowance or to allow them to stay in the company parking lot. Connolly-Pacific agreed to the Appellant’s request to live out of his camper truck on company property solely as an accommodation to him, i.e., so he did not have to rent space in a trailer park or make the 240-mile-round-trip daily between his home and the job. The rest of the crew lived in the Los Angeles area and made the daily commute to the job.