Maritime Gaming & Available Tort Remedies

It's back! Riverboat Gambling and Dockside Gaming has returned with a spectacular bang. In April of 1991, Iowa pioneered the first riverboat casino in decades. (1). Quick to follow suit, Illinois and Mississippi joined in the race to capture a share of this lucrative market. In Illinois alone, during the summer of 1993, riverboat casinos were grossing 50 to 60 million dollars per month. (2). With operating profit margins in the 40% to 50% range, the industry appeal is obvious (3). Harrah's, Circus Circus, Mirage Resorts, Inc., Caesar's, Bally's, and other major hotel chains all have ambitious plans to capitalize on this new gaming venture. (4). Apparently, the private sector will not be the only beneficiary of gaming. Mississippi has estimated that the industry has already created in excess of 20,000 new jobs, resulting in their lowest employment rate in over twenty years (5). Additionally, they raised $25 million in taxes from the first six months of operation (6). Both Missouri and Louisiana have recently passed legislation permitting gambling and a number of other states have likewise expressed significant interest. (7).

Consider the crowded; smoke filled casinos, with excited and often intoxicated occupants scurrying about in a frenzy, motivated by dreams of hitting the next jackpot. All of this is superimposed on a floating structure with stability affected by the ebb and flow of the tide. Personal injury claims are inevitable.

Vessel collisions and heavy marine traffic present other concerns. The lower Mississippi River is one of the busiest waterways in the world (8). Four riverboat casinos are expected to dock along the downtown New Orleans riverfront and carry 25,000 to 32,000 passengers per day. (9).

These floating casinos must navigate with and adjacent to loaded ferries, deep-draft ocean going ships, tow boats, cruise ships, freight ships and tugs pushing fleets of barges. In addition, the Mississippi River for example has many dangerous curves, sharp bends and swirling currents which make navigation problematic. Vessel collisions occur frequently. In March 0f 1994, a tugboat struck three barges and sank one in the Mississippi River. In April of 1994, a twenty million-dollar riverboat crashed into a train trestle as it headed up the Atchafalaya River for its opening in Bossier City. This vessel was a paddlewheel, one of three built for the Shreveport-Bossier City area.

Floating casinos will take a prominent place as citizens of the marine industry. The question is whether they are prepared to be responsible citizens. The President of the Crescent River Port Pilots' Association was reported as suggesting that some of the developers and shipyards are cutting corners and costs in their rush to get the floating casinos in the water (10). The fifteen floating casinos licensed by the state to operate in Louisiana must have Coast Guard Certification before sailing. Once operating, the vessels must be regularly inspected by the Coast Guard.

In terms of personal injury litigation, the threshold questions will be identifying whether an injured victim is a passenger as opposed to an employee. We will consider the remedies available to employees. With this group, the key question will be whether the employee is a seaman. To be entitled to the benefits available under the Jones Act (11), or the general maritime law remedy of unseaworthiness, one must be a seaman. Although the term "seaman" is specifically mentioned in the Jones Act, the act does not define or provide other guidance to solve the riddle of seaman status. With the statutory parameters largely uncharted, the meaning of the term has developed in an evolutionary case-by-case manner.

SEAMAN STATUS

The recent U.S. Supreme Court ruling in McDermott Int'l Inc. v. Wilander, (12), has improved the navigability through this body of law. The Court explained that "seaman" is a maritime term of art, and absent contrary indication, when a statute uses such a term, Congress intended it to have its established meaning. Accordingly, the Court's first task in Wildander was to determine who a seaman was under the general maritime law when Congress passed the Jones Act. At that time, a person needed only to be employed on board a vessel in furtherance of its purpose to be considered a seaman. The essential ingredient was an employment-related connection to a vessel in navigation (13).

Wilander presents a seaman status concept that embraces a wide variety of personnel. Although the Supreme Court was primarily concerned with whether the "aid-in-navigation test" was still required, the Court did give general guidance for identifying seamen. According to the Court, when the Jones Act was enacted, it established no requirements that a seaman aid in navigation (14). In announcing the actual rule in Wilander, the Court stated:

The key to seaman status is employment-related connection to a vessel in navigation. . . . In this regard, we believe the requirements that an employee's duties must "contribut(e) to the function of the vessel or to the accomplishment of its mission" captures well an important requirement of seaman status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work (15).

The Wildander court was called on to choose between the Seventh Circuit test (16), which aberrantly required participation in a vessel's transportation function, and the Supreme Court's established case law, as embodied in the Fifth Circuit rule of Robison (17).

Recognizing the many developments in vessel design and function, courts have used the Robison test for over thirty years to confer seaman status on workers whose duties contribute to a vessel's function, mission, operation, or welfare. Robison still provides needed guidance by maritime oil and gas operations.

In Robison, the Fifth Circuit developed a formula to determine when an evidentiary basis exists under the Jones Act for the issue of seaman status to reach the jury. The threshold burden is met if there is evidence that the injured worker was assigned permanently to a vessel or performed a substantial part of his work on the vessel, and if the capacity in which he was employed or the duties he performed contributed to the vessel's function, mission, operation, or welfare during movement or anchorage (18).

In discouraging attempts to fix unvarying meanings to "seaman", "vessel", and "member of a crew", the Robison court noted that "these terms have such a wide range of meaning, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstance of a particular case" (19).

Another legacy of Robison, now affirmed by Wilander, is the rejection of the "aid in navigation" concept. The Robison court explained that this requirement had been "watered down until the words lost their natural means", and went on to note:

With due deference to the Supreme Court, we attach less importance to either of these catchphrases than we do to the cases piled on cases in which recovery is allowed when by no stretch of the imagination can it be said that the claimant had anything to do with navigation and is a member of the ship's company only in the sense that his duties have a connection with the mission or the function of the floatable structure where he was injured (20).

The Robison court made no apologies for expanding seaman status, explaining that broadening the term's "seaman" and "vessel" is consistent with the liberal construction of the act and the act's purposes.

Robison is significant in that it stresses substance over form. The court insisted on flexibility to accommodate the hybrid situations presented by the offshore oil and gas industry. The Court used the term "seaman" to encompass blue-water sailors, whereas the term "Jones Act seaman" was used to identify a larger, more divergent group that faces the same or greater risks than blue-water sailors normally encounter.

After Robison, seaman status continued its voyage through uncharted offshore applications. The first prong of the Robison test - that a worker be assigned permanently to a vessel - was supplemented by the requirement that the worker have a "more or less permanent connection with a vessel in navigation". The purpose of this requirement is to determine whether there is a sufficient nexus with the navigation of vessels and associated perils to justify invoking remedies available to seamen under the Jones Act. No factor in and of itself is controlling in the employment relationship, and a totality of the circumstance view is preferable to a rigid application of the test (21).

The Robison court also noted that the legislative history of the Jones Act did not indicate that Congress had intended the law to apply only to the conventional members of a ship's company. The implicit conclusion of course, is that it always applies to conventional members of the ship's company. The absence of any legislative restriction permitted the legal definition of "seaman" to evolve and accommodate unconventional vessels like those that used in the oil industry (22). It should likewise provide the same substantive framework for the marine gaming industry.

Although traditionally the term "crew" does not have "an absolutely unvarying, legal significance", certain classes of employment are so essentially maritime in character that members of those classes are always considered seamen (23). These people were consistently recognized as seamen in U. S. general maritime law before the Jones Act was passed. An illustrative list of those classes were identified by Justice Story in United States v Thompson (24). They include cooks, steward, pilots, surgeons, ship carpenters, and boatswains. Many gaming employees will fall under these traditional categories. Others will fall into a gray area: however, the controlling principles announced in Robison and reiterated in Wilander should provide a basis for seaman status in most instances.

VESSEL STATUS

Dockside gambling casinos have created yet another ripple in the already unsettled waters of vessel status. Without vessel status, there is no seaman status and admiralty jurisdiction is also affected. This new industry has created watercraft that, in some states, must be fully functional, navigable vessels. In other states, the marine casinos are merely permanently moored barges. An examination of existing jurisprudence and statutory provisions provide guidance for addressing the vessel status question.

In Southwest Marine, Inc. v. Gizoni (25), the Supreme Court granted writs to determine the remedy available for a rigging foreman injured on a floating platform. Relying on Wilander, the Court used the "capable of transportation" test to arrive at Jones Act vessel status. The Court described Southwest Marine's special purpose vessels as:

Several floating platforms, including a pontoon barge, two float barges, a rail barge, a divers barge, and a crane barge. These platforms by themselves have no power, means of steering, navigational lights, navigation aide or living facilities. They are moved about by tugboats, which position the platforms alongside vessels under repair at berths or in dry dock at Southwest Marine's shipyard... (26).

The Fifth Circuit in Domingue v Ocean Drilling & Exploration Co. (27) specifically acknowledged a long history of according vessel status to jackup rigs:

We have consistently applied general maritime law and Jones Act guidelines sent down by this court through Judge Wisdom, in Offshore Company v. Robison (28), to accidents aboard special purpose watercraft such as submersible, semi-submersible, jackup and other similar rigs. (Emphasis added). As we state in Houston Oil & Minerals Corp. v. American International Tool Co. (29), (W)e take as given that in this circuit, at least in the area of personal injury, admiralty jurisdiction and the applicability of maritime law to these Robison-defined special purpose watercraft is unassailably established. See also Vickers v. Chiles Drilling Co. (30) (Jones Act and Maritime Law applied on jackup rigs)...

In addition to the jurisprudential mandate, there is a plethora of legislative guidance, which supports this rule (31). These statutory provisions demonstrate that a vessel need only be capable of being used as a means of transportation on water. The vessel need not actually be in navigation to the time in question.

The Fifth Circuit in Gremillin v. Gulf Coast Catering Co. (32) noted some of the factors they consider in attempting to identify a vessel, looking at whether a given structure maintains or possesses (1) navigational aids, (2) life boats and other life-saving equipment, (3) a rake bow, (4) bilge pumps, (5) crew quarters, and (6) registration with the Coast Guard as a vessel. The court explained that "[n]evertheless, exotic craft may qualify as vessels, especially if exposed to the perils associated with Maritime service..."

Wilander approves the concept of special purpose vessels. The court confirmed that a seaman does not have to aid in the navigation of the vessel to enjoy seaman status and succinctly stated:

In this regard, we believe the requirement that an employee's duties must "contribut(e) to the function of the vessel or to accomplishment of its missions" captures well an important requirement of seaman's status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work (33).

Obviously, if an employee can obtain seaman status by contributing to the vessel's special mission, there must necessarily exist "special mission" vessels. Structures such as jackup rigs, semi-submersibles, drilling barges, etc. are clear examples of such vessels and the Fifth Circuit has recognized this for decades. These should provide the requisite support for extending vessel status to marine casinos.

Both the United States Supreme Court and the Fifth Circuit have been consistent in their opinions that special purpose vessels are vessels within the meaning of the Jones Act. While the act does not define the term "vessel", there exists abundant legislative guidance, all of which is couched in liberal terms. Essentially anything capable of transportation qualifies. This of course is augmented by the liberal gloss required in the application of the Jones Act in its capacity as remedial legislation (34).

The "capability test" has most recently been adopted by the Mississippi State Supreme Court. The Court found that a welding barge was a vessel (35). The Court turned to Louisiana jurisprudence in their analysis. They noted that "in Oregeron v. Avondale Shipyards, Inc. (36) a barge used as a work platform was a vessel because it was capable of navigation on water and at the time of the accident was floating on navigable water (37). In equating the two cases, the court further noted that as "in Oregeron (their barge) was free floating, it was not permanently attached to one location; it was pushed or pulled to shore when necessary; it was not secured by bits and mooring lines; and it was subject to the perils of the sea' (38). Similarly, this "capability test" should be used to determine vessel status for gaming vessels.

ENDNOTES

1. "Riverboat Gamblers, Fishman Brothers Draw Winning Hand with Launching of Casino on the Water", by Don Lee, LA Times, Mississippi Star Tribune, Aug. 17, 1994.
2. "Gambling Revenue, Sour for Aurora's Riverboats", by Hal Dardik, Chicago Tribune, Sept. 20, 1993.
3. "Gambling on Casino Stocks could Pay Off", by Tom Petruno, LA Times, June 9, 1993.
4. "Heartland's Riverboat Casinos Hit the Big Time", by Gene Sloan, USA Today, June 30, 1993.
5. "Casino Crazy Legal Gambling Bolsters Tottering Economy in the Rural South", by Anthony Faiola, Miami Herald, March 7, 1993.
6. "Casino Crazy Legal Gambling Bolsters Tottering Economy in the Rural South", by Anthony Faiola, Miami Herald, March 7, 1993.
7. "Heartland's Riverboat Casinos Hit the Big Time", by Gene Sloan, USA Today, June 30, 1993.
8. "Floating Casino' Safety A Priority, Port Chief Says", by Joe Gyan, Jr., State Times, Baton Rouge, LA. October 15, 1993. For example, the article notes that one 320-foot long riverboat had no rudders to complement its paddle wheel and another vessel with a 4,000 ton displacement had what was referred to as an "utterly ridiculous" 150 pound anchor.
9. "Floating Casino' Safety A Priority, Port Chief Says", by Joe Gyan, Jr., State Times, Baton Rouge, LA. October 15, 1993.
10. "Floating Casino' Safety A Priority, Port Chief Says", by Joe Gyan, Jr., State Times, Baton Rouge, LA. October 15, 1993.
11. 46 U.S.C.A. § 688
12. McDermott Int'l Inc. v. Wilander, 498 U.S. 337, 111 S. Ct. 807, 112 L. Ed. 2d 866 (1991).
13. Wilander, 111 S. Ct. at 817.
14. Wilander, 111 S/ Ct. at 813.
15. Wilander, 111 S. Ct. at 817.
16. See Johnson v. John f. Beasley Constr. Co., 742 F.2d 1054 (7yh Cir. 1984), cert. Denied, 105 S. Ct. 1180 (1985).
17. Offshore Company v. Robison, 266 F.2d 769 (5^th Cir. 1959).
18. Offshore Company v. Robison, 266 F.2d 769, 779 (5^th Cir. 1959).
19. Offshore Company v. Robison, 266 F.2d 769, 779-80 (5^th Cir. 1959).
20. Offshore Company v. Robison, 266 F.2d 769, 780 (5^th Cir. 1959).
21. See Guidry V. South La. Contractors, Inc. 614 F.2d 447, 452-53 (5^th Cir. 1980).
22. Robison, 266 F.2d 769, 776, 780.
23. See generally Bassett, 309 U.S. 251.
24. United States v. Thompson, 28 F.Cas. 102 (Cir. Dist. Mass.) (1832).
25. Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct. 486, 116 L. Ed. 2^nd 405 (1991).
26. Gizoni, 112 S. Ct. at 489.
27. Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393 (5^th Cir. 1991).
28. 266 F. 2d 769 (5^th Cir. 1959).
29. 827 F.2d 1049, 1053 (5^th Cir. 1987).
30. Vickers v. Chiles, 822 F.2d 535 (5^th Cir. 1987).

1. Rules of Construction Act.

2. (1 U.S.C. Sec. 3); The word "vessel" includes every description of watercraft or other artificial contrivance used or capable of being used, as a means of transportation on water.

3. The Shipping Act.

4. (46 U.S.C. Sec. 2101 (45)): "(V)essel" has the same meaning given that term in Section 3 of Title 1.

5. Merchant Marine Act of 1920

6. (45 U.S.C. Sec. 801 App.): A)ll water craft and other artificial contrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or are capable of being or are intended to be used as a means of transportation on water.

7. International Navigational Rules of 1977

8. (33 U.S.C. Sec. 1601(1)): "Vessel means every description of watercraft, including nondisplacement craft and seaplanes used or capable of being used as a means of transportation on water.

9. The Inland Navigation Rules Act of 1980, Rule 3

10. (a): The word "vessel" includes every description of watercraft including nondisplacement craft and seaplanes, used or capable of being used as means of transportation on water.

11. Public Health Service Act

(42 U.S.C. Sec. 201(i)): The term "vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, exclusive of aircraft and amphibious contrivances.

7. Excise Taxes Act

8. (26 U.S.C. Sec. 56889(c): "(V)essel" includes every description of watercraft used, or capable of being used as a means of transportation in water, or water and air;

9. Whaling Convention Act

(16 U.S.C. Sec. 916(e)): Vessel: The word "vessel" denotes every kind, type or description of watercraft or contrivance subject to the jurisdiction of the United States used, or capable of being used, as a means of transportation.

i. Neutrality Act of 1939

(22 U.S.C. Sec. 456(c)): The term "vessel" means every description of watercraft and aircraft capable of being used as a means of transportation on, under or over water.

10. Navigation Act of 1974

11. (33 U.S.C. Sec. 1502(19)): (V)essel" means every description of watercraft or other artificial contrivance used as a means of transportation on or through the water.

12. Deepwater Ports Act.

13. (33 U.S.C. Sec. 1502 (19)): "(V)essel" means every description of watercraft or other artificial contrivance used as a means of transportation on or through the water.

14. The Oil Pollution Act of 1990.

15. (33 U.S.C. Sec. 2701(37)): "(V)essel" means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, other then a public vessel.

16. The Sentencing Reform Act.

17. (18 U.S.C. Sec. 3667); As used in this section, "vessel" includes every description of watercraft used, or capable of being used as a means of transportation in water, or in water and air.

18. The Communications Act of 1934

19. (47 U.S.C. Sec. 153(w)(1)): "(V)essel" includes every description of watercraft or other artificial contrivance, except aircraft used or capable of being used, as a means of transportation on water, whether or not it is actually afloat.

20. The Tariff Act of 1930

21. (19 U.S.C. Sec. 1401(a)): The wold "vessel" includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.

22. The Interstate Act Against Importation and Exportation of Motor Vehicles, Vessels and Aircraft.

23. (18 U.S.C. Sec. 553(c)(3)); "(V)essel" has the meaning given that in Section 401 of the Tariff Act of 1930 (19 U.S.C. 1401, ante).

24. The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)

25. (42 U.S.C. Sec. 9601(28)): The term "vessel" means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

26. The Anti-Gambling Act

27. (28 U.S.C. Sec. 1081) The term "vessel" includes every kind of water and aircraft or other contrivance used or capable of being used as a means of transportation on water, or on water and in the air, as well as any ship, boat, barge, or other watercraft or any structure capable of floating on the water.

28. The Federal Ship Mortgage Insurance Act

29. (46 U.S.C. Sec. 1271(b)): The term "vessel" includes all types, whether in existence or under construction, or passenger cargo and combination passenger-cargo carrying vessels, tankers, tugs, towboats, barges, dredges and ocean thermal energy conversion facilities or plant ship which are or will be documented under the law of the United States.

30. The Contraband Seizure Act.

31. (49 U.S.C. App. Sec. 787(a)): The term "vessel" includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.

32. The Anti Fouling Paint Control Act of 1988

33. (33 U.S.C. Sec. 2402(11)): The term "vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as means of transportation on water.

34. The Interstate Commerce Act

35. (49 U.S.C. Sec. 10102(28)): The term "vessel" means a watercraft or other artificial contrivance that is used, is capable of being used, or is intended to be used as a means of transportation by water.

36. The Submarine Cable Act

37. (47 U.S.C. Sec. 30): The term vessel shall be taken to mean every description of vessel used in navigation, in whatever way it is propelled.

38. The Federal Water Pollution Control Act

(33 U.S.C. Sec. 1321(a)(3)): "Vessel" means every description of watercraft or other artificial contrivance used, or capable of being used as a means of transportation in water other than a public vessel.

1. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5^th Cir. 1990)
2. Wilander, 111 S. Ct. at 817
3. JOIA v Jo-Ja Service Corp., 817 F.2d 908 at 917 (1^st Cir. 1987).
4. Texaco, Inc. v Addison, 613 So.2d 1193 (Miss. 1993).
5. Orgeron v. Avaondale Shipyards, Inc., 561 So. 2d 38, 43 (La. 1990).
6. Addison, 613 So. 2d at 1200
7. Addison, 613 So. 2d at 1200.

Richard J. Arsenault is the senior partner with the Alexandria, Louisiana law firm of Neblett, Beard & Arsenault. He is listed in the 1993-94 edition of the Best Lawyers in America, is a frequent lecturer and has authored several dozen articles concerning admiralty and tort law. Mrs. Arsenault is a member of the Editorial Board of the Maritime Law Reporter.

Gary J. Arsenault obtained his accounting degree at LSU and was a practicing CPA for ten years. He graduated law school with honors and now practices law with Neblett, Beard & Arsenault.