                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-1998

Foulk v. Donjon Marine Co Inc
Precedential or Non-Precedential:

Docket 97-5235




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Recommended Citation
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Filed May 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-5235 & 97-5269

LAYNE B. FOULK; MARJORIE E. FOULK, h/w

v.

DONJON MARINE COMPANY, INC.,
       Defendant/Third-Party
       Plaintiff

v.

BREAKWATERS INTERNATIONAL, INC.,
       Third-Party Defendant
       Donjon Marine Company,
       Inc.,
       Appellant in 97-5235.
       Layne B. Foulk;
       Marjorie E. Foulk,
       Appellants in 97-5269.

On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 95-cv-00323

Argued on December 12, 1997

Before: GREENBERG, ROTH and SEITZ, Circuit Judges

(Opinion filed: May 11, 1998)
       David B. Winkler, Esquire
       Marvin I. Barish Law Offices
       Sixth & Walnut Streets
       The Curtis Center, Suite 801
       Philadelphia, PA 19106
        Attorney for Foulks

       Raymond R. Wiss, Esquire (Argued)
       Thomas K. Bouregy, Jr., Esquire
       Wiss & Cooke
       Three University Plaza
       Suite 207
       Hackensack, NJ 07602
        Attorneys for Donjon Marine
        Company, Inc.

       Edward R. Murphy, Esquire
       Elizabeth A. Dalberth, Esquire
       Murphy & O'Connor
       65 Haddon Avenue
       Haddonfield, NJ 08033

       Gary S. Lee, Esquire (Argued)
       Thomas R. Beer, Esquire
       Barger & Wolen
       500 Fifth Avenue
       46th Floor
       New York, NY 10110
        Attorneys for Breakwaters
        International, Inc.

OPINION OF THE COURT

ROTH, Circuit Judge:

This interlocutory appeal involves two questions:
1) whether we have jurisdiction of it, and 2) whether an
individual is precluded from being a "seaman" for purposes
of the Jones Act, 46 U.S.C.   668, if his relationship with a
barge/diving station in question is only 10 days in
duration. On the first issue, we will deny appellee/third-
party defendant, Breakwaters International, Inc.'s, motion
to dismiss the appeal. We find that the pleadings and

                               2
actions of the parties were sufficient to invoke admiralty
jurisdiction for purposes of Fed. R. Civ. P. 9(h). We,
therefore, have jurisdiction of this appeal of a non-final
order under 28 U.S.C.   1292(a)(3). On the second issue,
the district court held that Layne Foulk, a freelance
commercial diver, had insufficient durational connections
to the barge to be considered a "seaman" covered by the
Jones Act. Foulk v. Donjon Marine Co, Inc., 961 F. Supp.
692, 698 (D.N.J. 1997). We do not agree and will reverse.

I. Facts

In April 1993, the Borough of Avalon, New Jersey,
contracted with Breakwaters to erect an artificial reef off
Avalon's coast. Breakwaters contracted with Donjon to
provide material, barges, tugs, and a floating crane barge.
Breakwaters hired freelance divers, including Foulk, to
perform some of the work. Construction began on July 10,
1993, under Breakwaters' direction. Donjon's crane barge,
the Farrell 256, anchored 150 feet offshore, was used both
to install the reef and as a dive station for the dive crew,
consisting of Foulk and three other commercial divers who
were to assist in the placement of the reef. As dive station,
the barge held air compressors, a communications box, and
other diving equipment. The dive crew were to sleep ashore
and to report to the barge by motor launch each morning.
Foulk was hired to work for 10 days, the duration of the
project. On his first day of work, Foulk was injured when,
while in the water, he was caught between a jetty and the
clamshell bucket operated by the barge crane. He suffered
various fractures, a collapsed lung and an injured right
shoulder.

On January 6, 1995, while on disability, Foulk and his
wife, Marjorie, filed suit against Donjon and Breakwaters,
sounding in negligence and general maritime law. The
Foulks alleged both diversity and admiralty jurisdiction. On
February 14, 1995, before any answer was filed, the Foulks
amended their complaint to name only Donjon as defendant
on claims of negligence and of the unseaworthiness of
Donjon's vessel. Jurisdiction was once again grounded in
both diversity and admiralty. On March 10, 1995, Donjon
filed both an answer and a third-party claim against

                                3
Breakwaters for indemnity and contribution. On June 1,
1995, the Magistrate Judge granted Donjon's oral motion to
amend its third-party complaint to make a claim against
Breakwaters in favor of the Foulks, pursuant to Fed. R. Civ.
P. 14(c). Breakwaters did not object to this amendment.
The parties subsequently submitted a joint pre-trial order
which stated inter alia, that "jurisdiction of the Court arises
under the Admiralty Law as modified by the Jones Act, 46
U.S.C.   668." Breakwaters sought partial summary
judgment on its contention that Foulk was not a "seaman"
under the Jones Act, 46 U.S.C.   688. Donjon and Foulk
cross-moved for partial summary judgment that Foulk was
a Jones Act "seaman." On April 9, 1997, the District Court
granted Breakwaters' motion and denied Donjon and
Foulk's motion to the contrary. Foulk v. Donjon Marine Co,
Inc., 961 F. Supp. 692, 698 (D.N.J. 1997). Donjon and the
Foulks filed notices of interlocutory appeal on April 21,
1997, and April 30, 1997, respectively. 28 U.S.C.
  1292(a)(3). On May 9, 1997, Breakwatersfiled a motion to
dismiss the appeal. For the reasons set forth below, we will
deny Breakwaters motion to dismiss, and, considering the
merits of the appeal, we will reverse the district court grant
of partial summary judgment in favor of Breakwaters.

II. Jurisdiction

Before we reach the merits of this appeal, we mustfirst
resolve Breakwaters' motion to dismiss it. Donjon asserts
that the jurisdictional basis for its interlocutory appeal is
28 U.S.C.   1292(a)(3)1 which provides in part:

       [T]he court of appeals shall have jurisdiction of appeals
       from:

       (3) Interlocutory decrees of such district courts or
       the judges thereof determining the rights and
       liabilities of the parties to admiralty cases in which
       appeals from final decrees are allowed.
_________________________________________________________________

1. Donjon concedes that 28 U.S.C.   1291 is inapplicable as a basis for
jurisdiction because there was no "final judgment" of the district court.
Appellant Donjon's Br. in Opp. to Appellee Breakwater's Mot. to Dismiss,
at 11; See United States v. Brook Contracting Corp., 759 F.2d 320 (3d
Cir. 1985).

                               4
To use   1292(a)(3) as a basis for appellate jurisdiction of
an interlocutory order, such as a grant of partial summary
judgment, a plaintiff must be asserting an admiralty or
maritime claim within the meaning of Fed. R. Civ. P. 9(h).
This Rule states as follows:

         A pleading or count setting forth a claim for relief
         within the admiralty and maritime jurisdiction that is
         also within the jurisdiction of the district court on
         some other ground may contain a statement identifying
         the claim as an admiralty or maritime claim for the
         purposes of Rules 14(c), 38(e), 82 and the Supplemental
         Rules for Certain Admiralty and Maritime Claims. If the
         claim is cognizable only in admiralty, it is an admiralty
         or maritime claim for those purposes whether so
         identified or not. . . . The reference in [28 U.S.C.
           1292(a)(3)] to admiralty cases shall be construed to
         mean admiralty and maritime cases within the
         meaning of this subdivision [Fed. R. Civ. P. 9](h).

(emphasis added).

In both its initial complaint against Breakwaters and
Donjon and in its First Amended Complaint against only
Donjon, Foulk asserted two bases for subject-matter
jurisdiction: admiralty and diversity.2 When a federal
plaintiff makes a claim in admiralty or joins an admiralty
claim with another claim, certain special procedures and
rules apply: Rules 14(c), 38(e), 82, the Supplemental Rules
_________________________________________________________________

2. The First Complaint states:

         The jurisdiction of this Court arises under the Admiralty law by
the
         Jones Act, 46 U.S.C.   688, and the diversity jurisdiction of the
         Court, 28 U.S.C.   1332, the amount in controversy being in excess
         of Fifty Thousand Dollars ($50,000.00) exclusive of interest and
         costs.

Compl. and Jury Demand,    5. The First Amended Complaint states:

         The jurisdiction of this Court arises under the Admiralty law and
         the diversity jurisdiction of the Court, 28 U.S.C. 1332, the
amount
         in controversy being in excess of Fifty Thousand Dollars
         ($50,000.00) exclusive of interest and costs.

First Am. Compl. and Jury Demand,    4.

                                 5
for Certain Admiralty and Maritime Claims, and 28 U.S.C.
  1292(a)(3). Rule 9(h) helps clarify the applicability of these
admiralty and maritime rules and procedures in a case
where more than one basis for subject matter jurisdiction
has been asserted. To assist the court and the parties in
recognizing the presence of an admiralty claim in a multi-
claim suit, Rule 9(h) provides that the complaint "may
contain a statement identifying the claim as an admiralty or
maritime claim ... ." See Fedorczyk v. Caribbean Cruise
Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996).

Breakwaters grounds its motion to dismiss the appeal on
the fact that, in asserting admiralty jurisdiction in both the
original and the amended complaints, the Foulks do not
specifically cite to Rule 9(h) and, as a consequence, do not
"identify the pleading as an admiralty claim." For this
reason, Breakwaters contends that the Foulks did not
invoke admiralty jurisdiction and cannot employ the
procedures associated with it, including the use of 28
U.S.C.   1292(a)(3), the jurisdictional basis for this appeal.
As a result, Breakwaters asserts that section 1292(a)(3) is
inapplicable and that this appeal must be dismissed for
lack of jurisdiction.

The issue that we must resolve is how specific a party
must be in identifying an admiralty claim in a complaint
when that party is pleading alternative theories of subject
matter jurisdiction. Generally, under the liberal notice
pleading practices in federal civil cases, a claimant "does
not have to set out in detail the facts upon which the claim
for relief is based, but must merely provide a statement
sufficient to put the opposing party on notice of the claim."
2 Moore's Federal Practice,   8.04[1] (Matthew Bender 3d
ed. 1988); see Hishon v. King & Spaulding, 467 U.S. 69,
78-79 (1984); Conley v. Gibson, 355 U.S. 41, 47 (1957)
(pleading must contain only a short and plain statement
sufficient to give notice); Fed. R. Civ. P. 8. Similarly, the
claimant must include "a short and plain statement of the
grounds upon which the court's jurisdiction depends." Fed.
R. Civ. P. 8(a)(1). Plaintiff's complaints, see n.2, both clearly
stated two jurisdictional bases: diversity and admiralty.

There are, however, embellishments to the Rule 8 notice
pleading provisions. One of these is Fed. R. Civ. P. 9(h)

                               6
which explains that a party in Foulk's position, who has set
forth two jurisdictional bases, "may" include a "statement
identifying the claim as an admiralty or maritime claim."
(emphasis added). By affirmatively including such a
statement, a party clearly describes a claim as being one in
admiralty. See Advisory Committee Notes, Fed. R. Civ. P. 9,
1966 Amendment ("the preferable solution [for designating
a claim as an admiralty claim] is to allow the pleader who
now has power to determine procedural consequences by
filing a suit in admiralty to exercise that power under
unification ... by a simple statement in his pleading to the
effect that the claim is an admiralty or maritime claim."); cf.
Fedorczyk, 82 F.3d at 73 (stating that "[t]o invoke admiralty
jurisdiction ... a plaintiff must affirmatively insert a
statement in the pleadings identifying the claim as an
`admiralty or maritime claim'.").

A direct citation to Rule 9(h) is unambiguous and may be
considered by some to be preferable. See Wright & Miller,
Federal Practice and Procedure: Civil 2d   1211 (West
1990); Fed. R. Civ. P. Forms 2(d).3 However, nothing in
Rule 9(h) restricts the invocation of admiralty jurisdiction to
a specific citation to that rule. Indeed, Rule 9(h)'s use of the
word "may," instead of "must," suggests that the specific
use of the words "Rule 9(h)" is not required.

We conclude then that a plaintiff, invoking admiralty
jurisdiction, does not need to make direct reference to
Rule 9(h). The question remains, however, just how specific
a reference to admiralty jurisdiction must be in order to
invoke it. Our review of the facts of the present case
convinces us that the pleadings, along with the parties'
actions, are sufficient to invoke it.
_________________________________________________________________

3. In fact a number of district courts have so held. See, e.g., Subaru
Distributors Corp. v. General Ship Corp., 167 F.R.D. 342, 343 (D. Mass
1996); Lewis v. United States, 812 F.Supp. 620, 628 (E.D. Va. 1993);
Siragusa v. Standard Steamship Owners Protection, 710 F.Supp. 404,
407 (D.P.R. 1989); Banks v. Hanover Steamship Corp., 43 F.R.D. 374,
376-7 (D.Md. 1967). By contrast, the Fifth Circuit has held to the
contrary, that explicit reference to Fed. R. Civ. P. 9(h) is not
necessary.
Teal v. Eagle Fleet, Inc., 933 F.2d 341, 345 (5th Cir. 1991); T.N.T.
Marine
Service, Inc. v. Weaver Shipyards and Dry Docks, Inc., 702 F.2d 585,
587-88 (5th Cir.), cert. denied, 104 S.Ct. 151 (1983).

                               7
Shortly after defendant/third-party plaintiff Donjonfiled
its third-party complaint against Breakwaters for indemnity
and contribution, the magistrate judge granted Donjon's
oral motion to amend its third-party complaint to reflect
that it was seeking a claim for judgment against
Breakwaters in favor of plaintiffs pursuant to Fed. R. Civ.
P. 14(c). See Order Amending Third Party Complaint, June
1, 1995. A third party claim under Fed. R. Civ. P. 14(c) can
only be made with respect to admiralty claims as
contemplated under Rule 9(h). See Fed. R. Civ. P. 14(c)
("When a plaintiff asserts an admiralty or maritime claim
within the meaning of Rule 9(h), the defendant or claimant,
as a third party plaintiff, may bring in a third party
defendant who may be . . .liable. . . by way of remedy over,
contribution or otherwise on account of the same
transaction . . .."); Teal v. Eagle Fleet, Inc., 933 F.2d 341,
344 n.1 (5th Cir. 1991) ("Third party claims under
Rule 14(c) are only available in admiralty or maritime
claims."). Donjon's Rule 14(c) claim, then, made it clear to
all parties that this case would proceed, in part at least, as
an admiralty claim.4

Furthermore, the parties' manifestation of intent to
proceed under admiralty jurisdiction was confirmed by the
final pre-trial order, entered with the consent of
Breakwaters, which stated that admiralty alone was the
basis for jurisdiction. See Joint Final Pre-Trial Order ("The
jurisdiction of the Court arises under Admiralty Law as
modified by the Jones Act, 46 U.S.C. Section 688."; see also
_________________________________________________________________

4. The dissent argues that "actions by a defendant should not control the
question of whether a plaintiff meant to invoke admiralty jurisdiction."
Dissent at 22. We do not suggest that defendant-third party plaintiff
Donjon was single-handedly able to invoke admiralty procedure on
behalf of plaintiff; rather that because no parties objected to Donjon's
motion, it became clear that all parties tacitly agreed to pursue an
admiralty claim, and that this case would proceed, at least in part, as
such. Moreover the fact that the plaintiffs joined in the Pretrial Order
and are now appellants before us on this interlocutory appeal further
demonstrates that they are cognizant of the invocation of admiralty
jurisdiction. The dissent's ensuing cite makes clear that actions of the
plaintiff are relevant to what jurisdiction the plaintiff has invoked.
Dissent at 22 citing Bryan v. Associated Container Transp., 837 F.Supp.
633, 641 (D.N.J. 1993).

                               8
Fedorczyk, 82 F.3d at 73 (holding that the district court did
not have admiralty jurisdiction and noting that the district
court had entered a pretrial order, stating that the
"jurisdictional predicate" was diversity of citizenship,
without objection from any party (including appellant
Fedorczyk who was arguing in favor of admiralty
jurisdiction)). Having concluded that the parties' pleadings
and actions were sufficient to invoke admiralty jurisdiction,
we have jurisdiction to hear Foulks' and Donjon's
interlocutory appeal pursuant to 28 U.S.C.   1292(a)(3).

III. Seaman Status

Turning to the merits of the appeal, Foulk and Donjon
argue that the District Court erred in granting partial
summary judgment on the issue of Layne Foulk's seaman
status under the Jones Act. The Jones Act provides a cause
of action in negligence for "any seaman" injured "in the
course of his employment." 46 U.S.C.   688. There are two
components to "seaman" status. See McDermott Int'l Inc., v.
Wilander, 111 S.Ct. 807, 813 (1991); Chandris, Inc. v.
Latsis, 115 S.Ct. 2172 (1995). First, the "employee's duties"
must "contribut[e] to the function[ing] of the vessel or to the
accomplishment of its mission." Chandris, 115 S.Ct. at
2190. Second, the worker's "connection to the "vessel in
navigation" must be "substantial in terms of both its
duration and its nature." Id. The district court found that
while the first requirement was met, as a matter of law, the
second requirement could not be met and thus granted
partial summary judgment to Breakwaters. Foulk, 961
F.Supp. at 698. The district court reasoned that Foulk's
10-day assignment was temporary and, therefore, not of
sufficient duration to satisfy the Chandris "substantial
duration" requirement. Id. ("Ten days (excluding nights),
with no view towards a more permanent relationship, is
simply too short a duration to satisfy the Chandris
durational requirement for seaman status."). We review the
district court grant of summary judgment5 de novo. See
_________________________________________________________________

5. The standard for summary judgment is well settled: "Summary
judgment is appropriate when the admissible evidence fails to
demonstrate a genuine issue of material fact, and the moving party is

                               9
Semper v. Johnson and Higgins, 45 F.3d 724, 727 (3d Cir.
1995).

The Jones Act fails to define the term "seaman." 46
U.S.C.   688. In 1927, Congress provided some content to
the Jones Act seaman requirement by passing the
Longshore and Harbor Workers' Compensation Act
(LHWCA). 33 U.S.C.    901-950. The LHWCA provides the
exclusive remedy for land-based maritime workers and
excludes from its purview "a master or member of a crew of
any vessel." 33 U.S.C.   902(3)(G). The Jones Act and
LHWCA are mutually exclusive. Because eligibility under
the LHWCA precludes eligibility under the Jones Act,
"master or member of a crew" must be seen as a refinement
of the term "seaman" in the Jones Act. Harbor Tug and
Barge Co. v. Papai, 117 S.Ct. 1535, 1538 (1997); McDermott
Int'l Inc., v. Wilander, 111 S.Ct. 807, 813 (1991).

More recently, the Supreme Court has provided a
framework from which to analyze "seaman" status for
purposes of the Jones Act, providing two essential
requirements. See McDermott Int'l, 111 S.Ct. at 813;
Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995). First, the
worker's duty must be to contribute to the functioning of
the vessel, and second, the worker's connection to the
vessel must be "substantial in terms of both its duration
and nature." Chandris, 115 S.Ct. at 2190. The Court
explained that the purpose of the "seaman" requirement is
to "separate the sea-based maritime employees who are
entitled to Jones Act protection from those land-based
workers who have only a transitory or sporadic connection
to a vessel in navigation," reserving seaman status for those
who are regularly exposed to the perils of the sea. Id. The
_________________________________________________________________

entitled to judgment as a matter of law. Fed. R. Civ. P 56(c). When, as
here, the nonmoving party bears the burden of persuasion at trial, the
moving party may meet its burden on summary judgment by showing
that the nonmoving party's evidence is insufficient to carry that burden.
The nonmoving party creates a genuine issue of material fact if he
provides sufficient evidence to allow a reasonable jury to find for him at
trial. We give the nonmoving party the benefit of all reasonable
inferences." Wetzel v. Tucker, No. 97-7207, slip op. at 4, n.2 (3d Cir.
Mar. 23, 1998) (citations omitted).

                                10
Court made clear that the "total circumstances of an
individual's employment must be weighed to determine
whether he had a sufficient relation to the . . . vessels." Id.

Furthermore, the issue of seaman status is a mixed
question of fact and law. Id. Once the court defines the
appropriate standard, the trier of fact must decide whether
a particular employee meets that standard and is thus a
seaman. Id.; Griffith v. Wheeling Pittsburgh Steel Corp., 521
F.2d 31, 36-37 (3d Cir. 1975). "Nevertheless,`summary
judgment . . . is mandated where the facts and the law will
reasonably support only one conclusion." Harbor Tug, 117
S.Ct. at 1540. The District Court granted Breakwaters'
motion for partial summary judgment on seaman status,
reasoning that the facts and the law support only the
conclusion that Foulk was not a seaman. We do not agree.

There is no question that Foulk met the first requirement
-- he contributed to the functioning of the vessel and to the
accomplishment of its mission. As the district court found,
the mission of the vessel in question, the Farrell 256, was
the installation of an artificial reef. Foulk, 961 F.Supp. at
696. Foulk was employed as a diver whose duty it was to
aid in the installation of the reef. See Wilander, 111 S.Ct.
at 817 ("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.").

There is also no question that Foulk met the first part of
the second requirement -- his connection to the vessel was
substantial in nature. As the district court found, Foulk
and the dive crew were necessary for the successful
completion of the Farrell 256's project -- the construction
of the artificial reef. Foulk, 961 F.Supp. at 697.
Furthermore, the profession of commercial diving is
maritime in nature as it cannot be done on land. Wallace
v. Oceaneering Int'l, 727 F.2d 427436 (5th Cir. 1984).
Commercial divers are regularly exposed to the perils of the
sea, the protection from which was the purpose of the
Jones Act seaman requirement. Chandris, 115 S.Ct. at
2190.

There is a question, however, whether Foulk met the
second part of the second requirement -- that Foulk's

                               11
connection to the Farrell 256 was substantial in duration.
Foulk had worked alongside the Farrell 256 on the Avalon
reef project for only half a day when he was injured.
Nevertheless, under the "no snapshot" doctrine, articulated
in Chandris, a court does not evaluate a worker's
connection to a vessel or fleet at the moment of injury.
Instead, the court must consider his intended relationship,
as if he had completed his mission uninjured. 115 S.Ct. at
2187, 2191-92. The contemplated arrangement between
Foulk and the Farrell 256 was for 10 days' work. Thus,
under the "no snapshot" doctrine, 10 days, not a few hours,
is the appropriate durational measure.

The question then is whether Foulk qualifies as a Jones
Act "seaman" when his durational connection to the Farrell
256 was only 10 days, i.e,. whether 10 days is sufficient for
"substantial duration." The district court found that, as a
matter of law, a 10 day relationship was too short to satisfy
the Chandris durational requirement. Foulk, 961 F.Supp. at
698.6

We conclude that the durational element cannot be
answered by an absolute measure. It is the temporal
element and the nature of the activities performed that,
taken together, determine seaman status. Chandris, 115
S.Ct. at 2190-91. While the Supreme Court did adopt "the
centerpiece of the formulation used by the Court of
Appeals" in that case (the two-part test), and did find it
"important that a seaman's connection to a vessel. . . be
substantial in both respects (duration and nature)," id. at
2191, the Court specifically rejected "the temptation to
create detailed tests to effectuate the congressional
purpose, tests that tend to become ends in and of
themselves." Id. at 2190. To define substantial duration by
_________________________________________________________________

6. The district court cited, as relevant points in arriving at its
decision,
the fact that Foulk went out to the diving barge each morning and went
home each evening; he did not eat breakfast or supper and he did not
sleep on board the barge. Foulk, 961 F.Supp. at 698. Nevertheless,
where Foulk ate or slept had nothing to do with the performance of his
duties. Nor did the location where Foulk ate or slept in any way affect
the maritime nature of his duties. For that reason, we will look at the
duration of the job as ten days, without subtracting for the nights on
shore.

                               12
an absolute number would be to create such a test. The
ultimate inquiry is "whether the worker in question is a
member of the vessel's crew or simply a land-based
employee who happens to be working on the vessel at a
given time," id. at 2191, and the two-part test is merely an
aid in making that determination. So while the Court did
explain that both the duration and the nature of the
connections be "substantial," id., the inquiry is one in the
totality of circumstances. Id. at 2190. It is inappropriate to
attempt to determine the minimum durational element by
an absolute number, such as 10 days.

Furthermore, this reasoning is consistent with this
court's holding that "lack of long-continued[durational]
attachment to a vessel cannot, as a matter of law, serve to
deny [Jones Act] seaman status to an employee who is
injured while assigned to and performing normal crew
service." Reeves v. Mobile Dredging & Pumping Co. Inc., 26
F.3d 1247, 1252 (3d Cir. 1994) citing with approval Latsis
v. Chandris, Inc., 20 F.3d 45 (2d Cir. 1994) aff'd 115 S.Ct.
2172. Although pre-Chandris, this court in Reeves was
cognizant of the "permanence" requirement that required a
worker's assignment to be substantial in duration, the
holding eventually reached by the Supreme Court in
Chandris. Our holding in Reeves that the lack of long
attachment to a vessel cannot deny seaman status as a
matter of law remains effective post-Chandris. Here, Foulk
was clearly performing the "normal crew service" of the
Farrell 256 -- installation of the artificial reef. The fact that
he was only going to do it for 10 days does not, by itself,
mandate summary judgment. Ten days is not a "clearly
inadequate temporal connection to vessels in navigation,
sufficient to take the question from the jury by granting
summary judgment." See, e.g. Palmer v. Fayard Moving and
Transportation Corp., 930 F.2d 437 (5th Cir. 1991). A jury
could reasonably find that an employee's connections to a
vessel are substantial in both duration and nature even if
the duration contemplated is 10 days. The analysis of
seaman status, and ultimately of whether an employee's
connections are substantial in duration and nature, may
include a multiplicity of factors. See, e.g., Betrand v.
International Mooring & Marine, Inc., 700 F.3d 240 (5th Cir.

                               13
1983) cert. denied, 464 U.S. 1069 (1984). The contemplated
number of days of employment is only one of these factors.

Consequently, we will reverse the trial court's grant of
summary judgment on seaman status and remand the case
to the district court for further proceedings consistent with
this opinion.7
_________________________________________________________________

7. The dissent comments on the implications of this opinion vis-a-vis
plaintiffs' demand for a jury trial. Dissent at 23. We do not pass on this
question as it is not presently before us at this interlocutory appeal of
a
grant of partial summary judgment. If this question were to come up at
a later date, it would of course be governed by relevant legal precedent
including Fitzgerald v. United States Line Co. , 83 S.Ct. 1646 (1963) and
Haskins v. Point Towing Co., 395 F.2d 737 (3d Cir. 1968).

                                14
GREENBERG, Circuit Judge, dissenting:

I respectfully dissent from my colleagues' determination
that this court has jurisdiction to hear this interlocutory
appeal. Because I dissent on jurisdictional grounds, I do
not reach the substantive issue raised on the appeal.

An interlocutory appeal under 28 U.S.C.   1292(a)(3) is
appropriate only in a case based on admiralty jurisdiction.
When a complaint sets forth allegations potentially
cognizable under both the admiralty and non-admiralty
jurisdiction of the district court, it must contain a
statement identifying the claim as one in admiralty in order
to invoke the district court's admiralty jurisdiction under
28 U.S.C.   1333. See Fed. R. Civ. P. 9(h). This designation
is significant, because claims arising under admiralty
jurisdiction to some degree involve different procedures
from claims at law, not the least of which is the denial of
a jury trial. See Fed. R. Civ. P. 38(e); In re Consolidation
Coal Co., 123 F.3d 126, 132 (3d Cir. 1997). In determining
whether the plaintiff made the admiralty jurisdiction
election, courts must look to the face of the complaint to
see if it contains the appropriate jurisdictional allegations.
See Heilman v. United States, 731 F.2d 1104, 1111 (3d Cir.
1984).

In the present case, the initial complaint states that "[t]he
jurisdiction of this Court arises under the Admiralty law as
modified by the Jones Act, 46 USC   688, and the diversity
jurisdiction of the Court, 28 USC 1332 . . . ." Complaint
at 2. The language in the first amended complaint parallels
this allegation, but omits the reference to the Jones Act,
instead stating that the court's jurisdiction "arises under
the Admiralty law and the diversity jurisdiction of the
Court, 28 USC 1332 . . . ." First Amended Complaint at 1.
The reason for this omission of the Jones Act allegation is
that the Foulks dropped their Jones Act claim against
Breakwaters, Layne B. Foulk's employer. The initial
complaint and the first amended complaint also contain a
demand for a jury trial, a right which the Foulks preserved
in the final pretrial order. See Complaint at 7; First
Amended Complaint at 4; Joint Final Pretrial Order at 1.

In asserting an action under the Jones Act, a plaintiff can
elect to sue either under admiralty jurisdiction or at law

                               15
invoking federal question jurisdiction. See Yates v. Dann,
223 F.2d 64, 66 (3d Cir. 1955); 14 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure     3677 at
492 (Supp. 1997). Accordingly, because the Foulks' original
complaint alleged jurisdiction under the Jones Act, it stated
a claim potentially cognizable under either admiralty or
non-admiralty jurisdiction. However, the complaint did not
mention specifically Rule 9(h) or 28 U.S.C. 1333;
therefore, while the Foulks plainly invoked the court's
diversity jurisdiction, it is unclear whether in addition they
intended to invoke the court's admiralty jurisdiction or
whether they chose to rely on the court's federal question
jurisdiction. When the Foulks amended their complaint to
eliminate the Jones Act claim, this action also eliminated
any potential federal question jurisdiction; but the
jurisdictional question remained unclear, because they still
could rely on two possible bases for jurisdiction, i.e.,
admiralty and diversity jurisdiction.

In discussing the language in a complaint necessary to
invoke admiralty jurisdiction in cases with multiple possible
bases for jurisdiction, we have held that "[t]o invoke
admiralty jurisdiction . . . a plaintiff must affirmatively
insert a statement in the pleadings identifying the claim as
an `admiralty or maritime claim.' " Fedorczyk v. Caribbean
Cruise Lines, LTD, 82 F.3d 69, 73 (3d Cir. 1996); see also
Bryan v. Associated Container Transp., 837 F. Supp. 633,
641-42 (D.N.J. 1993) (holding that the claim was based on
diversity jurisdiction and not maritime jurisdiction in part
because the party did not specifically invoke maritime
jurisdiction under Rule 9(h)). However, beyond this
statement, we did not provide any guidance in Fedorczyk
instructive here; thus, it is appropriate to examine
decisions of other courts that have confronted this problem
to determine what our rule should be.

The Court of Appeals for the Fifth Circuit has crafted a
liberal rule regarding the language necessary to elect
admiralty jurisdiction under Rule 9(h). See T.N.T. Marine
Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d
585, 587-88 (5th Cir. 1983) (holding that an allegation that
"[t]his is also a suit for breach of a maritime contract and
for maritime tort" was sufficient to invoke admiralty

                               16
jurisdiction). Under this rule, the complaint does not have
to mention Rule 9(h) specifically, see Bodden v. Osgood,
879 F.2d 184, 186 (5th Cir. 1989); instead, the complaint
only need contain "a simple statement asserting admiralty
or maritime claims." Teal v. Eagle Fleet, Inc., 933 F.2d 341,
345 (5th Cir. 1991) (quoting T.N.T. Marine, 702 F.2d at
588). However, not every complaint that contains
allegations relating to admiralty should be considered to
have invoked admiralty jurisdiction. Instead, courts must
look to the "totality of the circumstances" of the case.
Bodden, 879 F.2d at 186.

The Court of Appeals for the First Circuit also has held
that the mention of Rule 9(h) is not required. In Concordia
Co. v. Panek, 115 F.3d 67, 72 (1st Cir. 1997), the court
held that to invoke admiralty jurisdiction, "the preferred
technique is to invoke expressly Rule 9(h)," but the court
did not require litigants to do so. Instead, the court
examined the pleadings, which stated that the claim was
"In Admiralty," and concluded that this language was
sufficient to invoke admiralty jurisdiction in light of the fact
that the litigant did not demand a jury trial. Id.

The Court of Appeals for the Ninth Circuit has not
adopted such a liberal rule, but it also has not required the
specific mention of Rule 9(h). In Trentacosta v. Frontier Pac.
Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987),
the amended complaint contained a claim seeking relief
under the "Jones Act and General Maritime Law." The
amended complaint did not invoke admiralty jurisdiction;
instead, the plaintiff "was careful to invoke federal
jurisdiction only under 28 U.S.C.   1331." Id. The court
held that such language was insufficient to invoke
admiralty jurisdiction, because the plaintiff elected only to
invoke jurisdiction under the "law" side rather than on the
"admiralty side." Id.; see generally Owens-Illinois, Inc. v.
United States Dist. Court for the W. Dist. of Wash., 698 F.2d
967, 972 n.2 (9th Cir. 1983) (reasoning that requiring a
statement specifically mentioning Rule 9(h) to invoke
admiralty jurisdiction seems to be the correct rule, but
holding that the court did not need to reach the question).
Thus, even though the court did not require the specific
mention of Rule 9(h), the Court of Appeals for the Ninth

                               17
Circuit seems to have adopted a stricter pleading standard
than the Courts of Appeals for the Fifth and First Circuits.

Although the Court of Appeals for the Fourth Circuit has
not ruled on this issue, a number of district courts within
that circuit have required the specific mention of Rule 9(h)
in order to invoke admiralty jurisdiction in cases with
multiple bases for jurisdiction. See Lewis v. United States,
812 F. Supp. 620, 628 (E.D. Va. 1993) (requiring a specific
mention of Rule 9(h)); see also Banks v. Hanover Steamship
Corp., 43 F.R.D. 374, 376-77 (D. Md. 1967) (requiring a
specific statement of admiralty jurisdiction). Thus, these
rulings have established the strictest standard among the
federal courts that have addressed this issue.

After reviewing these cases and the specific facts of this
case, I would hold that we should be somewhat exacting in
our view of the pleadings with regards to invoking admiralty
jurisdiction in cases involving more than one potential
jurisdictional base. While under the Federal Rules of Civil
Procedure "[n]o technical forms of pleading or motions are
required," Fed. R. Civ. P. 8(e)(1), it is important for a
plaintiff to alert the district court that he or she intends to
invoke the court's admiralty jurisdiction. If the plaintiff
wishes to invoke admiralty jurisdiction and its
accompanying procedures in a case involving more than
one potential jurisdictional base, the plaintiff should be
required to state specifically that the claim is "an admiralty
or maritime claim within in the meaning of Rule 9(h)."5
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure   1313 at 719 (2d ed. 1990). As Professor
Thomas J. Schoenbaum has stated:

       If, however, the claim is cognizable not only in
       admiralty but also on some other ground of federal
       jurisdiction (such as diversity), the pleader is put to an
       election whether to invoke the special admiralty
       procedures and remedies. To plead an admiralty or
       maritime claim in such a case, the pleading must, in
       addition to the admiralty jurisdictional allegations,
       contain an identifying statement (or its equivalent) as
       follows: This is an admiralty or maritime claim within
       the meaning of Rule 9(h). If this identifying statement is

                               18
       not made, the claim may be treated as a non-maritime
       civil action.

Thomas J. Schoenbaum, Admiralty and Maritime Law
  21-1 at 467 (2d ed. 1994) (emphasis in original) (footnotes
omitted).

This case, of course, involves the precise situation which
Schoenbaum describes. Application of the rule as set forth
by Schoenbaum would place the court and the other
litigants on notice that the plaintiff intends to invoke the
admiralty jurisdiction of the district court. Such a rule
requiring the complaint to mention Rule 9(h) is not unduly
harsh, as the plaintiff can control the situation completely
with his or her pleadings. Because the Foulks failed to
mention Rule 9(h), I would hold that they did not make the
required election under that rule and therefore would
dismiss this appeal for lack of jurisdiction.

In holding that no such statement is required, the
majority relies on the language of Rule 9(h) (emphasis
added) which provides:

       A pleading or count setting forth a claim for relief
       within the admiralty and maritime jurisdiction that is
       also within the jurisdiction of the district court on
       some other ground may contain a statement identifying
       the claim as an admiralty or maritime claim for the
       purposes of Rules 14(c), 38(e), 82, and the
       Supplemental Rules for Certain Admiralty and
       Maritime Claims. . . .

The majority contends that the use of the word "may"
demonstrates that specific invocation of Rule 9(h) is not
necessary; however, in my view this argument is
unfounded. This aspect of Rule 9(h) describes a case where,
as here, a party may invoke multiple potential bases for
jurisdiction--admiralty jurisdiction and one or more other
jurisdictional bases, i.e., federal question or diversity
jurisdiction. Specifically, after the filing of the first amended
complaint, the Foulks could rely on diversity jurisdiction as
an alternative to admiralty jurisdiction. In this dual or
multiple jurisdictional setting, Rule 9(h) does not require
plaintiffs to invoke admiralty jurisdiction; instead, it
provides them with a choice--they can rely either on

                               19
admiralty jurisdiction or another jurisdictional ground. The
use of the word "may" in Rule 9(h) refers to this choice.

Plaintiffs "may" invoke admiralty jurisdiction or in an
appropriate case they may chose to rely on federal question
or diversity jurisdiction. To do the latter, they merely do not
invoke Rule 9(h). Thus, contrary to the majority's reasoning,
the specific wording in Rule 9(h), particularly the use of
"may," leads to the conclusion that a plaintiff specifically
must invoke the court's admiralty jurisdiction for the case
to be in admiralty if it is otherwise within the jurisdiction
of the district court. "May" simply means that when both
admiralty and other jurisdictional bases are available, the
plaintiff has the option to select admiralty jurisdiction. See
Fed. R. Civ. P. 9 advisory committee's note (1966
Amendment) (noting that after the unification of the rules of
procedure, "the pleader must be afforded some means of
designating his claim as the counterpart of the present suit
in admiralty, where its character as such is not clear.").
"May" surely does not mean that a plaintiff can select
admiralty jurisdiction either expressly or covertly and leave
the court and the other parties guessing as to the plaintiff's
intentions.

Even using the more liberal standard of the majority, I
would not hold that the Foulks, in fact, did invoke
admiralty jurisdiction in view of the totality of the
circumstances involved in this case. Here, as was true of
the plaintiff in Trentacosta, the Foulks were careful not to
invoke admiralty jurisdiction under Rule 9(h). Instead, the
original complaint referred to the Jones Act and federal
diversity jurisdiction, and specifically did not mention
admiralty jurisdiction. After all, to say, as did the Foulks,
that the "jurisdiction of this Court arises under Admiralty
law as modified by the Jones Act" is not to invoke admiralty
jurisdiction because, as I set forth above, a Jones Act case
can be brought in the district court without invoking
admiralty jurisdiction. What the Foulks did not say is that
they are bringing the case invoking the admiralty
jurisdiction of the district court. The Foulks' first amended
complaint did not clarify the situation for while they did
allege that the court's jurisdiction "arises under the
Admiralty law," they also invoked the court's diversity

                               20
jurisdiction; and cases under admiralty law can be brought
in a district court under its diversity jurisdiction. See, e.g.,
Continental Cas. Co. v. Canadian Universal Ins. Co., 605
F.2d 1340, 1344 (5th Cir. 1979) ("A maritime issue may be
raised in a diversity suit; this is one significance of the
savings-to-suitors clause, 28 U.S.C.   1333, which permits
a litigant to obtain federal jurisdiction over, and jury
resolution of, an admiralty question by invoking federal
jurisdiction on an independent basis."). Thus, this language
in the first amended complaint could be interpreted as
relying solely on diversity jurisdiction and not intending to
rely on admiralty jurisdiction at all. I emphasize that the
Foulks did not specify that they were bringing the case
under the court's admiralty jurisdiction; and therefore, the
majority is wrong when it indicates that the "Foulks alleged
both diversity and admiralty jurisdiction." Slip Opinion at
3.

Furthermore, the Foulks requested a jury trial on the
issues contained in the complaint. Such a request is
inconsistent with admiralty jurisdiction, and it lends
credence to the conclusion that the plaintiff conceived of
the claim as being at law rather than under the district
court's admiralty jurisdiction. See Concordia, 115 F.3d at
72 ("One important factor in determining whether a
claimant has elected to proceed in admiralty is whether he
demanded a jury trial."); Sanders v. Seal Fleet, Inc., 1998
WL 136097, *4-5 (E.D. Tex. Mar. 23, 1998) (holding that
the action was under the court's federal question rather
than admiralty jurisdiction, because the plaintiff demanded
a jury trial and his complaint invoked the court's
jurisdiction under the Jones Act and general maritime law
rather than specifically pleading Rule 9(h)); see also In re
Consolidation Coal, 123 F.3d at 132 (noting that " `[t]here is
no right to a jury in actions instituted in admiralty' "
(citation omitted)). Are we to believe that insofar as the
Foulks invoked diversity jurisdiction they are entitled to a
jury trial while at the same time for the same claim they are
entitled to a bench trial in admiralty? As far as I am
concerned, the Foulks did not invoke admiralty jurisdiction,
and I therefore would dismiss the appeal for lack of
jurisdiction.

                               21
To support its determination, the majority cites the
pretrial order and Donjon's Rule 14(c) motion as evidence of
the Foulks' selection of admiralty jurisdiction. However, this
evidence is unpersuasive. First, the pretrial order did not
restrict the court's jurisdiction only to admiralty, as the
majority suggests. The order stated that the court's
jurisdiction arose under "Admiralty Law as modified by the
Jones Act 46 USC 688." In spite of the majority's
assertion, this language does not demonstrate that the
parties wished to invoke admiralty jurisdiction because as
I noted previously, a plaintiff can bring claims under the
Jones Act either in admiralty or at law. Moreover, as I
explain below, the pretrial order discloses nothing about
the Foulks' choice of jurisdiction. Therefore, although the
statement in the pretrial order mentions admiralty law as
modified by the Jones Act, in my view this reference
demonstrates nothing useful for the issue at hand. I
reiterate that there is no reason to assume that a case
under "Admiralty Law as modified by the Jones Act" is
under the admiralty jurisdiction.

Second, with regard to the Rule 14(c) motion, actions by
a defendant should not control the question of whether a
plaintiff meant to invoke admiralty jurisdiction. It was, after
all, Donjon and not the Foulks who brought the Jones Act
claim to which the pretrial order refers, as the Foulks
abandoned their Jones Act claim when they filed their first
amended complaint. The question of what jurisdiction the
plaintiff has invoked more properly is resolved by
examining the pleadings and actions of the plaintiff, not the
defendant. See generally Bryan, 837 F. Supp. at 641 ("[T]he
application of maritime law to a plaintiff's claims is a
matter about which a plaintiff exercises a degree of
control."). A defendant, by filing a third party complaint
cannot change the jurisdictional basis for a plaintiff's
complaint. Considering all of the circumstances of the case
and giving more weight to the pleadings and actions of the
Foulks, this evidence regarding the Rule 14(c) motion is not
sufficient to establish that they meant to invoke the
admiralty jurisdiction of the district court.

In a case involving both admiralty and non-admiralty
bases of jurisdiction, if a plaintiff wishes to invoke

                               22
admiralty jurisdiction, he or she should be required to
make that election in a clear statement specifically invoking
Rule 9(h) in order to avoid procedural problems that
otherwise could arise later, such as a dispute over whether
there should be a jury trial or, as here, over whether a
court of appeals has jurisdiction over an interlocutory
appeal. Is it too much to ask that a plaintiff be clear on this
fundamental point? The adoption of my position would
mean that disputes of the procedural and jurisdictional
kind involved on this appeal will become of historical
interest only. Moreover, in view of the rather limited size of
the admiralty bar, I am confident that a rule requiring
specific reference to Rule 9(h) would become widely known
to interested parties and would not become a trap for the
unwary plaintiff, particularly because a plaintiff's failure to
invoke Rule 9(h) is likely to preserve his or her right to a
jury trial. I repeat, however, that even applying the liberal
rule utilized by the majority in this case, I would hold that
the Foulks have not invoked the admiralty jurisdiction of
the district court.

As a result of the majority's opinion, the Foulks face a
problem that they may not recognize they have. Both of the
complaints and the final pretrial order preserved their
demand for a jury trial, and presumably the parties were
ready to proceed on that basis. However, prior to trial,
Donjon filed this appeal, in which the Foulks joined, in
response to the district court's partial grant of summary
judgment. In assuming jurisdiction over this interlocutory
appeal, the majority finds that this case rests on the
admiralty jurisdiction of the court. As a result, presumably
the Foulks have lost any right to a jury trial. 1 Based on
_________________________________________________________________

1. The majority specifically does not reach this question, instead stating
that this issue will have to be decided "at a later date" in reliance on
the
"relevant legal precedent including Fitzgerald v. United States Line Co.,
83 S.Ct. 1646 (1963) and Haskins v. Point Towing Co., 395 F.2d 737 (3d
Cir. 1968)." Slip Opinion at 14 n.7. While I agree that such a
determination will have to be made in the future, the result is
preordained and neither Fitzgerald nor Haskins will help the Foulks to
preserve their jury trial demand. Both Fitzgerald and Haskins involved
Jones Act claims brought at law that had been coupled with other
admiralty claims. See Haskins, 395 F.2d at 739-41. Because the Jones

                               23
their consistent demands for a jury trial, I cannot believe
that the Foulks intended to abandon that request. In the
circumstances, the Foulks by joining in this appeal may
have brought about a classic operation of the doctrine of
unintended consequences.

For the foregoing reasons, the interlocutory appeal
should be dismissed for lack of jurisdiction. Therefore, I
respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

Act claim had been brought at law, and not in admiralty, the plaintiffs
were entitled to receive a jury trial as to all issues, including the
pendent
maritime claims. However, this case is fundamentally different, because
the majority has determined that the Foulks' claims arose under the
admiralty jurisdiction of the court. As we pointed out in Haskins "the
Jones Act has been construed to permit a Jones Act claim for negligence
to be maintained as an independent admiralty action." Id. at 741. Since
this case is governed solely by the court's admiralty jurisdiction rather
than an alternative non-admiralty basis for jurisdiction such as existed
in Fitzgerald and Haskins, the Foulks cannot rely on that precedent to
demand a jury trial.

                                24
