                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 09-4222


                                 JOSEPH COLLICK

                                            v.

                     WEEKS MARINE, INC.; HAZTEK INC.;
                     EVANSTON INSURANCE COMPANY,

                                      Weeks Marine, Inc.,
                                             Appellant


                     Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 3:08-cv-05120)
                      District Judge: Honorable Mary L. Cooper


                             Argued September 15, 2010

             Before: SCIRICA, RENDELL and FISHER, Circuit Judges.

                              (Filed: October 12, 2010)


Ronald Betancourt, Esq.
Virginia A. Harper, Esq. [ARGUED]
Betancourt, Van Hemmen & Greco
114 Maple Avenue
Red Bank, NJ 07701
  Counsel for Appellant Weeks Marine Inc.
Matthew J. Cowan, Esq.
Nicholas P. Giuliano, Esq. [ARGUED]
Bennett, Giuliano, McDonnell & Perrone
494 Eighth Avenue, 7th Floor
New York, NY 10001
   Counsel for Appellee Joseph Collick

Crystal G. Petersen, Esq.
McDermott & Radzik
88 Pine Street, 21st Floor
New York, NY 10005-1801
   Counsel for Defendant Evanston Ins. Co.

Matthew S. Schorr, Esq.
McDonoough, Korn, Eichhorn & Schorr
959 South Springfield Avenue
P.O. Box 712
Springfield, NJ 07081
  Counsel for Defendant Haztek Inc.


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Appellant Weeks Marine, Inc. appeals from the District Court’s grant of a

preliminary injunction in favor of Joseph Collick. Collick was injured while working for

Weeks on the construction of a finger pier. He sued in the United States District Court

for the District of New Jersey for, among other things, maintenance and cure benefits

under general maritime law. The District Court, upon a motion by Collick, ordered

Weeks Marine, Inc. to immediately pay maintenance and cure benefits pending the

outcome of trial. We will vacate the preliminary injunction issued by the District Court



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and remand for further proceedings for the reasons discussed below.

                                        Background

       Collick is a marine construction worker and a member of the dockbuilders union

since 1999. At the time of his injury, Collick was employed by Weeks Marine, Inc. and

was assigned to the construction site of a finger pier at the Earle Weapons Station, a

United States Naval station located in Leonardo, New Jersey. The pier is used to load and

unload munitions for the Navy and, thus, extends two miles long into the Sandy Hook

Bay. Due to the location of the construction, the job was supported by a number of

barges, that were utilized as work and/or crane platforms and to store supplies.

       On November 17, 2006, while working in conjunction with a crane barge for the

purpose of lifting large pieces of pre-cast concrete onto the pier, Collick was injured.

Collick had been tasked to bend a piece of rebar which was impeding the way of the

concrete. While attempting to do so and walking out along a narrow piece of concrete

already in place, he slipped and fell approximately 12 to 15 feet, sustaining a severe

fracture to his leg. The fracture has required a number of surgeries and his doctors have

declared that he will be unable to do this type of physically demanding work ever again.

He is in constant pain and requires medication regularly.

       Prior to the filing of this litigation, Weeks was voluntarily paying benefits under

the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). 33 U.S.C. §§ 901-

950. Once Collick filed this lawsuit, Weeks discontinued paying the LHWCA benefits to



                                              3
Collick, stating that by filing a suit for maintenance and cure, he raised a question as to

whether he was eligible to receive the LHWCA benefits. After a number of procedural

starts and stops, on August 6, 2009, Collick filed a motion for order to show cause

seeking a preliminary injunction from the Court to require Weeks to pay him maintenance

and cure. Following a hearing, on October 28, 2009, the District Court granted Collick’s

motion and issued a preliminary injunction ordering Weeks to pay the maintenance and

cure benefits. Weeks timely appealed the District Court’s order.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §

1333. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1292. We review a

district court’s grant of a preliminary injunction for abuse of discretion. ACLU of New

Jersey v. Black Horse Pike Regional Bd. of Ed., 84 F.3d 1471, 1476 (3d Cir. 1996). “An

abuse of discretion exists when the district court’s decision rests upon a clearly erroneous

finding of fact, an errant conclusion of law, or an improper application of law to fact.” Id.

Thus, while an appellate court reviews the grant of a preliminary injunction for abuse of

discretion, it reviews the district court’s underlying factual determinations under a clearly

erroneous standard and considers the district court’s determinations on questions of law

de novo. Acierno v. New Castle County, 40 F.3d 645, 652 (3d Cir. 1994).

                                         Discussion

       We conclude that Collick failed to meet the burden required to qualify for a

mandatory preliminary injunction. The standard for the issuance of a preliminary



                                              4
injunction requires the moving party to show: (1) a reasonable probability of eventual

success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is

not granted to prevent a change in the status quo.” Acierno at 653. Additionally, the

district court “should take into account, when they are relevant, (3) the possibility of harm

to other interested persons from the grant or denial of the injunction, and (4) the public

interest.” Id..

        We cannot agree with the grant of the preliminary injunction because we cannot

conclude that Collick met the first prong of the standard, namely, that he had shown “a

reasonable probability” of success in his claim for maintenance and cure. To qualify for

maintenance and cure under maritime law, one need only prove that he is a “seaman”, and

that he sustained an injury in the employ of a vessel. The Osceola, 189 U.S. 158 (1903).

        For Collick to meet this prong, he must demonstrate that he will most likely be

able to prove he is, in fact, a seaman. The test for seaman status has two components: (1)

the employee’s duties must contribute to the accomplishment of the vessel’s mission; and

(2) the employee’s relation to the vessel must be substantial in duration and nature. Foulk

v. Donjon Marine Co., Inc., 144 F.3d 252, 256 (3d Cir. 1998). Collick argues that he

meets the test for seaman status because he was assigned by Weeks to work on a crane

barge which had a mission to support the construction of the pier; that he spent nearly

75% of his time on the crane barge; that he reported to work, changed into work clothing

and, took lunch and other breaks on the barge; that the type of work he did, from driving



                                                5
piles from the barge, cutting piles on the deck of the barge, maintaining equipment on the

barge, and even handling lines when the barge was moved, was all in support of the

mission of the crane barge. All of Collick’s factual offerings are currently supported by

declaration of Collick alone.

       Weeks urges that Collick’s work was substantially related to the construction of

the pier and unrelated to the mission of the barge; Collick was a dockbuilder; his hiring

paperwork states he was a dockbuilder; he is a member of the dockbuilders union.

Collick’s supervisor, Daniel Mowers, stated in a declaration that Collick spent far less

time on the barge than he stated in his declaration. Mowers stated that Collick was not

assigned to a barge and that he mainly worked on the pier itself constructing various

portions. Weeks supported these assertions with contractor production reports and daily

times sheets, which Weeks argues negates all of the statements that Collick made about

the nature of the work he did.

       In light of the presence in the record of substantial facts on both sides of the

argument, and particularly the relatively thin record evidence presented by Collick, we

find that the District Court erred in concluding preliminarily that Collick would likely be

successful in proving he was a “seaman”. The nature of the maritime doctrine of

maintenance and cure is straightforward, but the application of law to the facts in this

case is not. In light of the factually intensive nature of the doctrine of maintenance and

cure and the abundance of contradictory facts on both sides of the record, this matter



                                              6
should have proceeded to trial and the entry of a preliminary injunction was

inappropriate 1 .

        Accordingly, we will VACATE the order of the District Court and REMAND for

the Court to proceed to trial, forthwith, on Collick’s complaint.




        1
       We recognize, as did the District Court, Collick’s predicament. A prompt trial
would likely allow receipt of benefits under either general maritime law or under the
LHWCA.

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