Milligan v. Crux Subsurfacing et al

Filing 43

ORDER: granting Defendant's Motion for Summary Judgment 26 . Signed by Judge Sharon L. Gleason on 09/27/2012. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

EDWIN MILLIGAN,
Plaintiff,
v.
CRUX SUBSURFACE, INC., a
Washington corporation; CRUX
EQUIPMENT LEASING, INC., a Nevada
corporation; In Personam, ALASKA
SOLUTION, Official No. 1212495; and the
charter vessels, their engines, tackle,
gear, apparel, furniture and equipment, In
Rem,
Defendants.

Case No. 3:11-cv-00078-SLG

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The defendants (collectively, “Crux”) have filed a motion for summary judgment
at docket 26. Plaintiff Edwin Milligan opposes at docket 34. Crux replies at docket 38.
In its motion, Crux seeks summary judgment on Mr. Milligan’s assertion of
seaman status under the Jones Act 1 and dismissal of all Mr. Milligan’s claims.
FACTUAL BACKGROUND
The facts relevant to this motion are not in dispute. 2 For purposes of this motion,
the Court has presented them in the light most favorable to Mr. Milligan, the non-moving
party. 3
1

46 U.S.C. § 30104.

2

See Docket 34 at 1 (Opp.) (“Mr. Milligan does not dispute the facts presented by the
defendants.”)
3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158-59 (1970) (“The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”).

In 2008, Crux hired a team of laborers, including Mr. Milligan, to work on a
transmission tower construction project in a remote area near Ketchikan, Alaska. 4 Crux
connected four barges, all of which it either owned or leased, to create a remote camp
as a staging area for the inland construction (“barge raft”). 5 Each barge had a separate
function: one served as living quarters for the laborers (“hotel barge”); one served as a
helicopter landing pad; one stored fuel for the helicopters; and one held equipment for
the inland construction project (“materials barge”). 6 The barge raft was moored near
shore and appeared in the following configuration after July 28, 2008: 7

4

Docket 28 at 2 (Nead Decl. ¶ 3).

5

Id.

6

Id.

7

Id.

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Crux hired Mr. Milligan as a temporary employee for the tower construction
project. 8 Mr. Milligan was hired as a tree trimmer, specifically, a “Material Handler for
Drilling Operation,”9 with no assurance of employment with Crux beyond the duration of
the summer 2008 project. 10 The description of this position, which Mr. Milligan has
testified describes his duties, 11 makes no mention of seafaring or other marine-based or
vessel-based activities. 12 Mr. Milligan began working for Crux on July 2, 2008 and first
boarded the barge raft on July 8, 2008. Mr. Milligan conducted his assigned tasks—
mixing grout and distributing materials to support the inland construction—primarily on
board the materials barge. 13 During the course of the construction project, a groutmixing station was set up on land using the same process as the barge-based station. 14
Mr. Milligan worked for Crux for 112 days. 15 The parties agree that Mr. Milligan
was off the barge raft for less than two weeks, which means that he spent over 85% of
his time as a Crux employee aboard the raft. 16 Mr. Milligan has testified that he worked
in Ketchikan loading the barges from docks for approximately a week prior to traveling
8

Id. at 3-4 (Nead Decl. ¶¶ 4-5).

9

Id. at 3 (Nead Decl. ¶ 4).

10

Id. at 3-4 (Nead Decl. ¶ 4); Docket 27 at 18 (Milligan Dep. at 37).

11

Docket 27 at 21-22 (Milligan Dep. at 57-58).

12

See Docket 28 at 3 (Nead Decl. ¶ 4) (position description).

13

Docket 27 at 26 (Milligan Dep. at 74).

14

Id. at 38 (Milligan Dep. at 93).

15

Docket 28 at 3 (Nead Decl. ¶ 4) (Mr. Milligan was employed from July 2, 2008-October 21,
2008).

16

Id. See also Docket 34 at 3, n.1 (Opp.) (citing Mot. at 5).

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to the barge raft and that, once at the barge raft, worked at one of the on-land drill sites
two times. 17 The barge raft was moved once during the construction project, on August
22 and 23, 2008. 18 Mr. Milligan did not work on those two days. 19 Mr. Milligan has
testified that he was transported on the hotel barge on one occasion. 20 He also testified
that on one occasion he helped tighten one of the material barge’s mooring lines. 21
Otherwise, Mr. Milligan’s activities aboard the materials barge were limited to preparing
materials for the construction site.
Mr. Milligan was injured on the materials barge on October 20, 2008. He worked
on the Crux construction project from July 2, 2008 until he was injured. He applied for
and received workers’ compensation for his injury for approximately 18 months and then
returned to work. 22 He is currently employed in a facility maintenance position with the
U.S. Coast Guard. 23

17

Docket 27 at 26, 29 (Milligan Dep. at 74, 77).

18

Docket 28 at 3 (Nead Decl. ¶ 3).

19

Id.

20

Docket 27 at 45 (Milligan Dep. at 101). Jeremy Cummings, who supervised Mr. Milligan and
other laborers at the barge camp, has testified that he was told that “U.S. Coast Guard
regulations prevented any persons from riding aboard any barges being moved under tow.”
Docket 29 at 2 (Cummings Decl. ¶ 3). However, for purposes of this motion, this Court
assumes that Mr. Milligan was aboard the hotel barge under transport on one occasion. But
there is no evidence in the record that Mr. Milligan performed any sea-based duties at that time.

21

Docket 35-1 at 4-5 (Milligan Dep. at 103) (discussing “the one time when we did it”).

22

Docket 27 at 2 (Reilly Decl. ¶ 5).

23

Docket 27 at 13 (Milligan Dep. at 22).

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Mr. Milligan initiated this action on April 15, 2011. 24 His Complaint asserts claims
for negligence under the Jones Act, unseaworthiness, maintenance and cure and
unearned wages, found, and general maritime law negligence. 25
DISCUSSION
I.

Jurisdiction
This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §
1331 and 28 U.S.C. § 1333.

II.

Summary Judgment Standard.
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Here, the parties agree that, for
purposes of this motion, there is no genuine dispute as to any material fact. Rather, the
parties disagree, based on those undisputed facts, as to whether Crux is entitled to
judgment as a matter of law.
III.

Analysis.
The Jones Act provides that “[a] seaman injured in the course of employment . . .

may elect to bring a civil action at law, with the right of trial by jury, against the
employer.” 26 Crux argues in its motion that Mr. Milligan was not a seaman during his
employment with Crux and that he is therefore not eligible to make claims under the

24

Docket 1 (Compl.).

25

Id.

26

46 U.S.C. § 30104.

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Jones Act. 27 Mr. Milligan disagrees, arguing that the circumstances and nature of the
work he performed for Crux satisfy the requirements for Jones Act eligibility.
Generally, “[t]he test regarding who is a seaman under the Jones Act is a mixed
question of law and fact.” 28 But here, where “the underlying facts are established,” the
question before this Court on summary judgment is “whether the facts meet the
statutory standard”29 required for Mr. Milligan to be a seaman under the law.
In Chandris, Inc. v. Latsis, the United States Supreme Court observed that Jones
Act protection depends primarily on a distinction between land-based and sea-based
workers. 30

“Land-based 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.”31
In Chandris, the Supreme Court held that the Jones Act should be read in conjunction
with the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), which
specifically excludes from its coverage the “master or member of a crew of any
vessel.” 32 As the Court explained, “it is odd but true that the key requirement for Jones

27

Docket 26 at 2 (Mot.).

28

Boy Scouts of Am. v. Graham, 86 F.3d 861, 864 (9th Cir. 1996) (citing McDermott Int'l Inc. v.
Wilander, 498 U.S. 337, 337 (1991)). See also Wilander, 498 U.S. at 356 (citing PullmanStandard v. Swint, 456 U.S. 273, 289, n. 19 (1982)).
29

Wilander, 498 U.S. at 356.

30

Chandris, 515 U.S. at 361.

31

Id.

32

33 U.S.C. § 902(3)(G).

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Act coverage now appears in another statute.” 33 Thus, “‘master or member of a crew’ is
a refinement of the term ‘seaman’ in the Jones Act[.]” 34
The Chandris Court articulated a two-part test for determining seaman status
under the Jones Act: “[1] [t]he worker's duties must contribute to the function of the
vessel or to the accomplishment of its mission, and [2] the worker must have a
connection to a vessel in navigation (or an identifiable group of vessels) that is
substantial in terms of both its duration and its nature.” 35
In this motion, Crux challenges only one component of the second requirement of
the Chandris test: the nature of Mr. Milligan’s connection to the materials barge. For
purposes of this motion, Crux does not dispute that Mr. Milligan’s duties contributed to
the accomplishment of the barge’s mission. 36 Nor does it dispute that the barge is a
vessel in navigation. 37 And it does not dispute that Mr. Milligan spent a substantial
amount of time on the materials barge. 38

Rather, Crux argues that Mr. Milligan’s

connection to the materials barge was not substantial in nature.

33

Chandris, 515 U.S. at 356 (citing Wilander, 498 U.S. at 346).

34

Id.

35

Id. at 376. See also Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 785 (9th Cir. 2007)
(applying Chandris test); Keller Found. v. Tracy, No. 11-71800 (9th Cir. Sept. 20, 2012) (slip op.
at 11612) (same).

36

Docket 38 at 3 (Reply) (explaining that Crux “chose not to challenge” other elements of the
Chandris test, “such as whether the barge(s) are a vessel in navigation, whether Milligan’s job
contributed to the function of the barge, or whether the duration of Milligan’s service was
substantial[.]”).

37

Id.

38

Docket 26 at 5 (Mot.) (“Milligan’s time records indicate he worked most days and was
apparently nearly continually at the barge camp . . .”).
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In determining whether an employee has a substantial connection to a vessel,
the Supreme Court in Chandris instructed that a district court “should emphasize that
the Jones Act was intended to protect sea-based maritime workers, who owe their
allegiance to a vessel, and not land-based employees, who do not.” 39 In this case, Mr.
Milligan has been a member of the International Laborers Union, Local 942 for over
twenty years. 40 At his deposition, he explained:
This is how it works in our union. If they need a pipe-layer, and
you’re a pipe-layer, you go on a job. As soon as you’re done laying
the pipe, if they don’t need you, you go to the hall, and they send
you to the next job where they need a pipe-layer at, or a finisher, or
whatever goes on. 41
When asked where he had expected his next job to come from after the Crux project,
Mr. Milligan testified that “all of my jobs are union. All I have to do is I just call the hall,
and they have something for me.” 42

As this testimony makes clear, Mr. Milligan’s

allegiance is to his union, not to the materials barge or the barge raft. 43
In Cabral v. Healy Tibbits Builders, Inc., the Ninth Circuit held that the plaintiff,
Mr. Cabral, was not a seaman for Jones Act purposes because he failed to meet the

39

Chandris, 515 U.S. at 376 (emphasis added).

40

Docket 27 at 7 (Milligan Dep. at 15).

41

Docket 27 at 20 (Milligan Dep. at 39).

42

Docket 27 at 37 (Milligan Dep. at 89).

43

Mr. Milligan also testified at his deposition that he had hoped to get further employment with
Crux, specifically building wind towers at a project site in Nevada, but had no formal assurances
of such employment. Id. at 36 (Milligan Dep. at 87). But even if Mr. Milligan had received a
formal offer from Crux for future employment at the Nevada site, such employment would have
been land-based and not connected with the materials barge, the barge raft, or any other
vessels.

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substantial connection test. 44 Affirming the Hawai’i District Court’s grant of summary
judgment to the defendant, the Court concluded that Mr. Cabral “was a land-based
worker who had only a transitory or sporadic connection with Barge 538.”45 The Circuit
Court explained:
Cabral was hired to work on Barge 538 as a crane operator and not
as a crew member. Cabral presents no evidence showing that he
was ever aboard Barge 538 when it was anywhere but the Ford
Island Ferry project. In fact, when the barge was used in another
part of the harbor on a soil sampling project on the weekend
immediately preceding the accident, Cabral was not aboard
because the barge's crane was not used. Furthermore, Cabral
presents no evidence showing that he would continue to work
aboard Barge 538 after the Ford Island Ferry project was
completed. All of the evidence points to one conclusion: that
Cabral was a land-based crane operator who happened to be
assigned to a project which required him to work aboard Barge 538.
In sum, we hold that the district court correctly concluded that there
was no evidence from which a reasonable jury could infer that
Cabral met the substantial connection test. 46
In Scheuring v. Traylor Bros., Inc., the Ninth Circuit reversed the Central District
of California’s grant of summary judgment to the defendant, finding genuine issues of
fact as to whether the plaintiff was a land-based employee or a Jones Act seaman.47
The court explained that while the facts in Scheuring were similar to those in Cabral,
several crucial differences in the nature of the work performed in Scheuring required a
different holding than Cabral:

44

128 F.3d 1289 (9th Cir. 1997).

45

Id. at 1293.

46

Id. at 1293.

47

476 F.3d 781, 787 (9th Cir. 2007).

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The plaintiff in Cabral did not make any showing of exposure to
vessel-movement or other characteristic seamen's risks. Scheuring
alleges that the boat was subject to sea swells, wind waves, vessel
wakes and tidal currents. He further alleges that the barge fleeted
on her anchor lines on a daily basis. And, most importantly, on at
least three occasions, the plaintiff was aboard the barge as it was
unmoored and moved by a tugboat. The plaintiff contends that
during those movements, he performed duties that could be
characterized as “sea-based” duties, such as handling lines,
weighing and dropping anchors, standing lookout, monitoring the
marine band radio and splicing wire and rope. These claims show
the existence of a factual dispute whether the plaintiff's employment
was land-based or sea-based. 48
Thus, the key difference between the two cases was that Mr. Scheuring was exposed to
the perils of the sea, while Mr. Cabral was not.
In Heise v. Fishing Co. of Alaska, Inc., the Ninth Circuit affirmed the Alaska
District Court’s determination that Mr. Heise was not a seaman for purposes of the
Jones Act. 49 Mr. Heise had been hired by the Fishing Company of Alaska (“FCA”) as a
temporary laborer to perform repairs on the Alaska Ranger while the ship was docked in
Seward. Mr. Heise slept aboard the vessel and on one occasion assisted in securing
the ship’s mooring lines after it was towed. 50

While Mr. Heise hoped to continue

working for FCA after his temporary employment ended, he had no assurance or offer
of such future employment. Mr. Heise was injured in the vessel and brought a Jones
Act claim against FCA alleging breaches of its duties of care and unseaworthiness, and,

48

Id..

49

79 F.3d 903, 906-07 (9th Cir. 1996).

50

It is not clear from the Ninth Circuit’s decision if the Alaska Ranger was in drydock during the
repairs; however, it is clear that the vessel was movable by tug throughout the process. See id.
at 905.
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as an alternative cause of action, an LHWCA claim for negligence. 51 The District Court
granted summary judgment to FCA on both claims. 52 It found that Mr. Heise was not a
seaman under the Jones Act because “undisputed facts established that Heise was
hired for land-based work, not sea-based maritime work[.]” 53 The District Court also
determined, as a matter of law, that the LHWCA barred Mr. Heise from bringing suit
against his immediate employer. 54 In affirming the determination, the Ninth Circuit held
with regard to Mr. Heise’s Jones Act coverage that the District Court had correctly
denied Mr. Heise seaman status because “at the time of Heise's injury, his connection
to the Alaska Ranger was to be limited to the time that the vessel was in Seward
undergoing maintenance and repairs.” 55
The Ninth Circuit’s holding in Heise is directly applicable to this case. 56 Like Mr.
Heise, Mr. Milligan was hired as a temporary worker to work aboard a vessel that was

51

Id.

52

Id.

53

Id.

54

Id.

55

Id. at 906-07.

56

Mr. Milligan argues that Heise is “easily distinguishable” from the present case. Docket 34 at
21 (Opp.). He asserts that in Heise, the Ninth Circuit held that because Mr. Heise performed
ship repair work, “[h]e was therefore covered under the LHWCA and could not bring a Jones Act
suit against his employer.” Docket 34 at 21 (Opp.). However, in its decision, the Ninth Circuit
conducted its Jones Act analysis independently of its LHWCA analysis. It held first that Mr.
Heise could not bring a Jones Act claim because he was a land-based worker and not a
seaman; and then separately discussed potential coverage under the LHWCA, ultimately
holding that because Mr. Heise was engaged in repair work, § 905(b) of the Act barred him from
bringing a negligence suit against his employer. Heise, 79 F.3d at 907.
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stationary. 57

He had not worked on the barge raft prior to its mooring near the

construction site, and was not expected to continue working aboard the barge raft when
it had completed its term near the site. Like Mr. Heise, Mr. Milligan’s connection to the
barge raft was limited to the time that the barge raft was moored in the bay near the
construction site. 58
While Mr. Milligan repeatedly argues that he was subject to the perils of the sea
through his work for Crux, he has not asserted any specific facts to support this
argument. Mr. Milligan testified that he was transported aboard the hotel barge on one
occasion 59 and that he held the mooring lines of the materials barge on another
occasion, 60 but this Court finds that these isolated incidents outside his regular duties
do not, without more, transform the nature of his responsibilities from land-based to seabased. Rather, the facts in this case are more akin to those in Cabral and Heise than
those in Scheuring. Based on this analysis, this Court finds that Mr. Milligan did not
have the requisite substantial connection to the vessel and hence was not a Jones Act
seaman during his employment with Crux.

57

While Mr. Milligan has testified that he was aboard the hotel barge on one occasion when it
was moved, that occasion appears to have been brief and isolated. See Docket 27 at 45
(Milligan Dep. at 101).
58

Cf. Heise, 79 F.3d at 906-07 (“at the time of Heise's injury, his connection to the Alaska
Ranger was to be limited to the time that the vessel was in Seward undergoing maintenance
and repairs.”); Delange v. Dutra Const. Co., Inc., 183 F.3d 916, 920 (9th Cir. 1999) (because
the plaintiff “served in various deckhand capacities while the barge was being moved and also
assisted in the piledriving carried out from the barge[,]” the court found that “[a] jury could
reasonably conclude from this evidence that Delange contributed to the barge's mission.”)
(emphasis added).

59

Docket 27 at 45 (Milligan Dep. at 101).

60

Docket 35-1 at 4 (Milligan Dep. at 103).

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In his Opposition, Mr. Milligan argues in the alternative that if he was not a Jones
Act seaman, he was a Sieracki seaman able to bring an unseaworthiness claim. 61
However, the Ninth Circuit has held that “Congress took away the unseaworthiness
remedy granted by Sieracki with its enactment of the [LHWCA].”62 Mr. Milligan argues
that such a reading is overbroad, but cites only an Alaska state court case to support his
statement. 63 This Court is bound by the precedents of the Ninth Circuit, which explicitly
state that a Sieracki seaman cannot bring an unseaworthiness claim.
CONCLUSION
Mr. Milligan’s Complaint asserts five claims for relief. Claim One, Jones Act
Negligence, is brought explicitly under the Jones Act. 64 Claim Two, Unseaworthiness, 65
and Claim Three, Maintenance and Cure and Unearned Wages, 66 are available only to
seamen. 67 Claim Four, Found, is premised on the unseaworthiness claim asserted in

61

Docket 34 at 22-23 (Opp.) (referring to Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946)).

62

Normile v. Mar. Co. of Philippines, 643 F.2d 1380, 1381 (9th Cir. 1981). See Docket 38 at 17
(Reply) (citing Normile).
63

Docket 34 at 23 (Opp.) (citing Cavin v. State, 3 P.3d 323 (Alaska 2000).

64

Compl. ¶ 4.1 et seq.

65

Id. ¶ 5.1 et seq.

66

Id. ¶ 6.1 et seq.

67

See Schoenbaum, Admiralty and Maritime Law § 6-27 (5th ed.) (re Claim Two) (“The
warranty of seaworthiness . . . is a duty owed to a narrow class of maritime workers—those who
can claim “seaman” status under the law.”); id. at § 6-28 (re Claim Three) (“The right to
maintenance and cure may be asserted by any person who is a ‘seaman.’”).
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Claim Two, 68 and cannot stand alone without that claim. Thus, Mr. Milligan’s lack of
seaman status requires dismissal of his first four claims.
Claim Five, General Maritime Law Negligence, 69 “may be invoked by virtually
anyone who suffers injury or loss in an admiralty setting[,]” 70 and is therefore unaffected
by this Court’s determination that Mr. Milligan was not a Jones Act seaman. But Crux
asserts that Claim Five must be dismissed “because, as an employer, Crux is immune
from claims for liability unless made pursuant to the Jones Act, which, of course,
depends on [Mr. Milligan’s] status [as a seaman].”71 Mr. Milligan received workers’
compensation for his injury for approximately 18 months before rejoining the
workforce. 72 Alaska Statute § 23.30.055 provides that the liability of an employer under
the workers’ compensation statutes “is exclusive and in place of all other liability of the
employer and any fellow employee to the employee . . . at law or in admiralty[.]” Thus,
Mr. Milligan cannot sustain his claim for General Maritime Law Negligence against Crux.
For the foregoing reasons, the defendants’ Motion for Summary Judgment is
GRANTED as to all claims.
Dated at Anchorage, Alaska this 27th day of September, 2012.
/s/ Sharon L. Gleason
United States District Judge
68

See Compl. ¶ 7.2 (“The plaintiff's employer, its employees, agents, and/or servants were
negligent and/or the vessel was unseaworthy, as set out above, as a result of which plaintiff
suffered a loss of found.”).
69

Id. ¶ 8.1 et seq.

70

Schoenbaum at § 5-2.

71

Docket 26 at 2, n. 2 (Mot.).

72

Docket 27 at 2 (Reilly Decl. ¶ 5).

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