                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0560n.06
                             Filed: August 4, 2006

                                          No. 05-1416

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

Richard T. Arnold,                                    )
                                                      )
         Plaintiff-Appellant,                         )
                                                      )
v.                                                    )   ON APPEAL FROM THE
                                                      )   UNITED STATES DISTRICT
Luedtke Engineering Co.,                              )   COURT FOR THE WESTERN
                                                      )   DISTRICT OF MICHIGAN
         Defendant-Appellee.                          )


Before: KEITH, COLE, Circuit Judges, and MIILS,* District Judge.

         DAMON J. KEITH, Circuit Judge. Appellant, Richard T. Arnold (“Arnold”), appeals the

district court’s order granting summary judgment to Luedtke Engineering Co. (“Luedtke”), on

Arnold’s claim of negligence under the Jones Act, 46 U.S.C. § 688, and vessel unseaworthiness

pursuant to general admiralty and maritime law, against his employer. The district court found that

Arnold was not a “seaman” as defined by the Jones Act during his employment of reconstructing

a seawall along the shore of the Erie Canal. We conclude, however, that the district court erred in

employing a snapshot test for seaman status and improperly took the mixed question of law and fact

away from the jury. Accordingly, we reverse the decision of the district court and remand this case

for trial.

                                           I. Background



         *
           The Honorable Richard Mills, United States District Court for the Central District of
Illinois, sitting by designation.
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        Luedtke is a maritime construction and dredging company involved in maintenance dredging,

marina construction, and breakwall construction. Over the past twenty-three years, Arnold was

employed with Luedtke in various capacities including runner, deckhand, tugboat pilot, and project

foreman. Arnold, as part of his employment with Luedtke, was a member of the Seafarers

International Union for over 20 years and licensed as a tugboat Captain.

A. The Black Rock Lock Project

        The events giving rise to this dispute occurred in September 2002 while Arnold was assigned

as project foreman to a seawall reconstruction project at Black Rock Lock in Buffalo, New York.

The seawall is 750 feet in length along the shore of the Erie Canal. From the waterside, the seawall

is seven feet tall, however, from the beachside the wall is waist-level. Luedtke’s task on the project,

which took approximately nine months to complete, was to straighten the seawall and ensure that

the material from the beach did not enter the canal. At the beginning of the project, five Luedtke

employees were assigned to the job in addition to the Corp. of Engineers representative who was

there daily. The project was constructed in four phases: (1) sheet piling, (2) stone placement behind

the refurbished wall, (3) wedge plate attachment, and (4) concrete pouring. Arnold fully participated

in the first two phases of the project and was injured during the end of the third phase. The project

began in February 2002 and continued until November of that year. Arnold was injured at the end

of September, at least seven months into the project and at most two months from the completion

of the project.

        There were three vessels that were used to complete the Black Rock Lock project: a tugboat,

derrick boat, and floating work raft. The Luedtke tugboat was used to push the derrick boat to the
No. 05-1416
Arnold v. Luedtke Engr. Co.
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work site. Arnold was the Captain of the tugboat as it departed from Michigan to Buffalo, New

York. The derrick boat is a one-hundred thirty foot by forty foot barge. It contains navigation lights,

anchoring spuds, a galley, and sleeping quarters. While the derrick boat can be moved short

distances by using an attached crane, the tugboat is generally utilized to transport it. During the first

two phases of the project, the derrick boat was used to transport equipment and materials from one

side of the lock to the other side. Additionally, the Luedtke employees placed a crane on the derrick

boat in order to assist in the placement of the steel plates along the seawall. Finally, the floating

work raft is a forty by six foot pontoon raft. The raft was moved around the seawall both manually

by Arnold and, at other times, mechanically by a crane. The work raft was used as a platform from

which Arnold could weld steel plates onto the seawall from the waterside.

        Arnold’s job duties at the Black Rock Project were varied. As project foreman he reported

to the superintendent. He was also the tugboat captain. In addition to his foreman and captain

responsibilities, he was responsible for overseeing the sheeting phase, pouring concrete behind the

wall, tying rebar, setting tubes,1 and finally welding wedge plates to each tube.2 Arnold also was

responsible for making repairs to the derrick boat and inspecting it every morning.

B. The Accident

        When the wedge plate phase began, between seven or eight months into the project, Luedtke

had laid off or otherwise released/reassigned all other employees associated with the project aside



        1
         The setting tubes would later hold the tendons necessary for anchoring the seawall.
        2
        The wedge plates were driven from the new wall into the existing wall in order to anchor
the new wall in place.
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from Arnold and Rich Payment (“Payment”), another Luedtke employee. The third phase required

Arnold to engage in welding one-hundred pound steel plates to the new seawall. In order to

maneuver the plate into place along the seawall, first, Arnold would carry a plate by hand a short

distance from the beach to the seawall. Then he would place the plate on top of the seawall, step

on to the seawall and attach the plate to a cable jack, which lowered the plate into position on the

waterside of the seawall. Finally, Arnold would lower himself onto the work raft where he would

weld the plate into place.

       While Arnold worked abroad the raft, Payment’s job was to assist a separate construction

company, which used the derrick boat to complete its part of the seawall. Arnold was in charge of

piloting the tugboat when the construction company indicated that the derrick boat needed to be

moved. According to Arnold, at a maximum he piloted the tugboat three to four times per day for

an estimated fifteen to twenty minutes per tug during the four to five week welding phase. Arnold

estimated that the longest tow he was required to make on this phase of the Black Rock Lock Project

was three to four hundred feet. Testimony indicated that the Breyman construction company worked

ten hours per day after which Payment would return to the raft and assist Arnold. It was during the

course of the time Arnold was working alone that his injury allegedly occurred.

       In early September 2002, Arnold began experiencing back pain while lifting the wedge

plates. Arnold continued to work for approximately three more weeks until he could no longer get

out of bed due to the pain. Arnold officially left the job on September 20, 2002 and Payment

finished the wedge phase with another Luedtke employee within seven days. The entire project was

completed in November 2002.
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       On October 14, 2002, Arnold underwent back surgery. Subsequently, his treating physician

declared him unfit for his prior occupation. Pursuant to the employment contract with the Seafarer’s

Union, Luedtke paid Arnold $300 per week following his injury as maintenance and cure.

Maintenance and cure is paid to injured members of the union by their employers. Thereafter,

Arnold brought the present suit alleging negligence and vessel unseaworthiness under the Jones Act

stemming from his injury while working on the seawall. The district court found that Luedtke was

entitled to judgment as a matter of law because Arnold did not satisfy the two-prong Chandris test

that the Supreme Court developed to determine the status of seaman under the Jones Act. Chandris,

Inc. v. Latsis, 515 U.S. 347 (1995). Arnold filed a timely notice of appeal with this Court.

                                           II. Discussion

A. Standard of Review

       We review a district court’s grant of summary judgment de novo. Golden v. City of

Columbus, 404 F.3d 950, 954 (6th Cir.2005). Summary judgment is appropriate where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). An issue concerning a

material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We must review the

evidence and draw all reasonable inferences in the light most favorable to the non-moving party.

Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir.

2002) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
No. 05-1416
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Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. Anderson, 477 U.S. at 248.

B. Analysis

       Prior to the passage of the Jones Act, general maritime law entitled a seaman, who became

sick or injured to maintenance and cure (or the right to be cared for and paid wages during the

voyage, see, e.g., Harden v. Gordon, 11 F. Cas. 480, 482-483 (Story, J.)). He would also be entitled

to damages for any “injuries received . . . in consequence of the unseaworthiness of the ship.” The

Osceola, 189 U.S. 158, 175 (1903). Actions brought against shipowners for negligence, however,

were barred. Under the basic principles of assumption of risk, courts reasoned that when seaman

signed a contract for employment they forego their basic common law tort remedies; thus a seaman

was “not allowed to recover an indemnity for the negligence of the master, or any member of the

crew.” Id. In 1920, Congress enacted the Jones Act, which permitted a seaman to bring negligence

suites. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995).

       The Jones Act provides, in pertinent part: “Any 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. § 688(a). Additionally, in such actions “all statutes of the

United States modifying or extending the common-law right or remedy in cases of personal injury

to railway employees shall apply.” Id. Although the statute is silent on who is a “seaman,” the

Supreme Court, in Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995) established two essential

requirements for “seaman” status. To procure seaman status (1) “an employee’s duties must

contribute to the function of the vessel or to the accomplishment of its mission;” and (2) “a seaman
No. 05-1416
Arnold v. Luedtke Engr. Co.
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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 its nature.”Id. The first prong has been interpreted

broadly to include, “all who work at sea in the service of a ship.” Id. In analyzing the second prong,

the Supreme Court advises that “the total circumstances of an individual’s employment must be

weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils

attendant thereon.” Id. at 370.

        Further, the Supreme Court cautioned that when “evaluating the employment-related

connection of a maritime worker to a vessel in navigation, courts should not employ a ‘snapshot’

test for seaman status, inspecting only the situation as it exists at the instant of injury. . . .” Id. at 363

(quoting Easley v. Southern Shipbuilding Corp. 965 F.2d 1, 5 (5th Cir. 1992) (quotation marks

omitted). But the Supreme Court also warned that lower courts must be mindful that when a

maritime employee’s assignment changes, his seaman status may change as well. Id. at 372.

Therefore, “if a maritime employee receives a new work assignment in which his essential duties

are changed, he is entitled to have the assessment of the substantiality of his vessel-related work

made on the basis of his activities in his new position.” Id.; see also Harbor Tug & Barge Co. v.

Papai, 520 U.S. 548, 556 (1997) (“the employee’s prior work history with a particular employer

may not affect the seaman inquiry if the employee was injured on a new assignment with the same

employer.”).

        The Supreme Court instructs us in Papai that “the seaman inquiry is a mixed question of law

and fact, and it often will be inappropriate to take the question from the jury.” Papai, 520 US. at

554 (emphasis added); Chandris, 515 U.S. at 369. Where, however, the undisputed facts reveal that
No. 05-1416
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a maritime worker does not have an adequate temporal connection to vessels in navigation, the court

may grant summary judgment. Id. at 371.         When we start from the position, as the Supreme Court

instructs us to, that it is often inappropriate to take this particular question away from the jury, and

we combine that with (1) our mandate concerning summary judgment (we must take all facts in the

light most favorable to the nonmoving party) and (2) the district court’s repeated warning that the

“factual issues in this case were close and difficult,” there should be little disagreement with our

decision to reverse the district court and remand this case for trial. Neither this Court nor the district

court below should take this question of fact out of the hands of a jury.

        To determine if an individual worker is a seaman, Chandris’ first prong requires that “an

employee’s duties must contribute to the function of the vessel or to the accomplishment of its

mission.” Id. The Supreme Court in Chandris admitted that satisfying the first prong of the test is

relatively easy: the claimant need only show that he “does the ship’s work.” Id. This threshold

requirement is “very broad,” encompassing “all who work at sea in the service of a ship.” Id.

        Here, it is clear that Arnold satisfies this threshold requirement. Although the district court

did not explicitly address this prong in the context of Arnold’s work throughout the entire Black

Rock Lock project, the undisputed evidence shows that Arnold contributed to the functioning of

many vessels over the nine month project.3 He was the tugboat captain transporting the derrick boat

from Michigan to New York, conducted the daily maintenance of all three vessels, navigated all the

vessels throughout the project, and was working on a vessel when injured. Arnold, therefore, easily

clears this initial Jones Act hurdle.


        3
         The district court’s analysis is focused exclusively on the wedge plate phase.
No. 05-1416
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        Under Chandris’ second prong, “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 duration and nature.”

Id. Chandris further explains that “a worker who spends less than about 30 percent of his time in

the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” The

district court did recognize that the thirty percent rule is a guideline that can be departed from under

appropriate circumstances. Under this guideline, the district court erred when it divided the Black

Rock Lock Project into distinct phases and took a snapshot of the work for which Arnold was

responsible. The Supreme Court cautions that when “evaluating the employment-related connection

of a maritime worker to a vessel in navigation, courts should not employ a ‘snapshot’ test for seaman

status, inspecting only the situation as it exists at the instant of injury .” Id. at 363. At the exact time

Arnold was hurt, the project was in a four to five week “phase” of wedge plate attachment. During

this period, Arnold spent only 10% of his time moving the vessels and the rest of his time using the

raft to aid in welding the seawall. However, the entire project from beginning to end was over

eleven months, nearly thirty-six weeks. This phase, or snapshot as it were, was less than 10% of

Arnold’s entire work assignment, e.g. the completion of the Black Rock Lock Project.

        The question that the district court does not address is whether Arnold worked 30% of the

entire project “in the service of a vessel.” As recounted above, Arnold worked almost exclusively

abroad the derrick boat from February through the end of July (~twenty weeks or 55% of the total

project time). When he began the wedge phase of the project, he was still responsible for navigation

of the boats (about 10% of the day), inspecting the vessels every morning, and making repairs.

Additionally, the majority of the welding was done while Arnold was on a raft. When we look at
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the facts in the light most favorable to Arnold, he spent well over 30% of his entire time on the

project working in direct connection to a vessel.4

       The district court and Luedtke would like this Court to interpret Arnold’s work on each

phase of the Black Rock Lock project as a separate assignment. This would force us to employ the

snapshot test in determining his seaman status. Viewing the evidence in the light most favorable

to Arnold, he was hired to be the foreman in the reconstruction of the seawall at Black Rock Lock.

He was not a temporary employee. Arnold had a 23 year history as a seaman with Luedtke and was

most integral to the completion of the project. Although others were laid off or released as the

project evolved, he was the foreman and his presence was necessary from beginning to end. Arnold

was the only Tugboat captain, he was responsible for moving the derrick boat, his own work raft,

as well as the tugboat. Arnold even participated in the welding of metal plates, a task he had not

previously attempted. As the foreman, Arnold was the project’s utility man. In addition to his

traditional seafaring duties and responsibilities on this project, he had to work all the odd jobs to

make sure the seawall was successfully repaired. These are all genuine issues of material fact that



       4
          Even Arnold’s connection with the raft, during the wedge phase, is substantial in nature.
The Supreme Court, in a recent unanimous decision, Stewart v. Dutra Constr. Co., defined § 3
broadly stating that a vessel includes “every description of watercraft or other artificial contrivance
used or capable of being used, as a means of transportation on water.” Stewart v. Dutra Constr. Co.,
543 U.S. 481, 489 (2005). Accordingly, the raft Arnold was using to complete the wedge phase was
a vessel. In the welding phase of the project, Arnold carried the wedge plates from the beach back
to the seawall. He attached the wedges from the raft. The raft was consistently moved with Arnold
abroad down the length of the wall as wedge plates were attached in place. It is does not matter in
this instance whether the raft was moved by a crane or by Arnold’s navigation. It was clearly
capable of being of being used as a means of transportation on water. The question of how
substantial in nature and duration Arnold’s connection to the raft was, however, should be left for
the jury to decide.
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suggest that Arnold was assigned to complete the eleven month Black Rock Lock Project and would

have done so but for suffering an injury. The district court concedes that before the wedge phase

began, Arnold was probably a seamen for Jones Act purposes.             Although this question is

appropriately left to be determined by the jury, it may suggest that the totality of Arnold’s

employment on the seawall repair project, he was indeed a seaman. In Stewart, the Supreme Court

reaffirmed its position 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.’”

Stewart 543 U.S. 481, 495 (quoting Chandris, 515 U.S., at 363) (citation omitted). In this light,

summary judgment was inappropriate. There are genuine issues of material fact relating to Arnold’s

connection to the vessels both in duration and nature as it relates to his work on the Black Rock

Lock Project. These are questions of fact that will determine whether Arnold was a seaman for

Jones Act purposes. We leave these questions for the trier of fact.

                                         III. Conclusion

        For the foregoing reasons, we REVERSE the district court’s grant of summary judgment

in favor of the Luedtke on Arnold’s Jones Act claim and REMAND with instructions to send the

case to trial.
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Richard Mills, District Judge dissenting:

        To be protected under the Jones Act, the second prong of Chandris, Inc. v. Latsis, 515 U.S.

347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), requires “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 its nature.” Id. (citation omitted). The record shows that Arnold used a work-raft

to transport himself and his tools along the canal’s waterway during the seawall’s construction.

Thus, the work-raft was a vessel. See Stewart v. Dutra Construction Co., 543 U.S. 481, 497, 125

S.Ct. 1118, 1129, 160 L.Ed.2d 932 (2005) (“[A] ‘vessel’ is any watercraft practically capable of

maritime transportation, regardless of its primary purpose or state of transit at a particular

moment.”).

        Unfortunately for Arnold, he never argued that the work-raft was a vessel until he raised the

issue in a motion for reconsideration. Raising an issue for the first time in a motion for

reconsideration does not preserve the issue for appeal. See Thurman v. Yellow Freight Systems,

Inc., 97 F.3d 833, 835 (6th Cir.1996) (raising an “issue for the first time in [a] motion to alter or

amend the judgment . . . [does not] preserve the issue for appeal.”).

        In my view, Arnold cannot satisfy the second prong of the Chandris test without establishing

that the work-raft was a vessel. Because Arnold waived this issue, his Jones Act claim should fail.

Accordingly, I respectfully dissent.
