Stack's ruling sinks barge worker's Jones Act claim

Steve Gonzalez Nov. 29, 2007, 11:52am

Judge Stack

A barge that cannot move is not a vessel.

So ruled Madison County Circuit Judge Daniel J. Stack in granting Argosy Gaming's summary judgment motion in a Jones Act suit brought by a casino housekeeper.

Stack ruled that the casino's Spirit Barge does not come under the Jones Act definition of a vessel.

Sarah Culli filed suit against Argosy on July 24, 2006, seeking damages for injuries she sustained while working at the casino as a housekeeper.

Culli claimed that during the course of her employment she sustained severe and painful injuries to her foot and heel when the casino ordered her to work under unsafe conditions.

Her injury occurred on April 14, 2004, according to the suit.

She claims the casino was reckless, careless and negligent by failing to provide a good, safe and proper place to work.

Argosy filed its motion on Aug. 28, arguing that to recover under the Jones Act, the plaintiff must be a "seaman."

According to Argosy, to qualify as a seaman a plaintiff must have an employment-related connection to a vessel in navigation. If a worker spends less than 30 percent of his or her time in the service of a vessel in navigation he or she would not qualify under the Jones Act.

Culli testified that at the time of her accident, and for two years prior, she spent 90 percent of her time as an employee-housekeeper in the restaurants of the casino.

An affidavit filed by Dennis Crank, Argosy's operations manager, stated that the restaurants are located on the "Spirit Barge" which has no engine and is incapable of propulsion.

Crank also stated the barge is permanently attached to the shore by two metal spars and six cables and is connected to land-based utilities such as gas, electricity, telephone, computer surveillance, water and sewer. He also wrote that the barge has never left its moorings.

Argosy argued since the barge is permanently moored and incapable of movement or transportation it cannot be considered a vessel.

"As the evidence clearly shows, plaintiff does not quality as a 'seaman' under the terms of the Jones Act and is not entitled to recovery," the motion states.

Argosy is represented by Gordon Broom, Gregg Kinney and Benjamin Powell of Hepler Broom in Edwardsville.

In his written order, Stack ruled that since the facts of the case are not contested as far as where the fall happened there is no genuine issue of a material fact so the only question is purely one of law.

Stack also said that Culli may be defined a seaman under the Longshore and Harborworkers' Compensation Act, wherein the United States Supreme Court case Stewart v. Dutra Construction Company specifically differentiates that act from the Jones Act.

In April 2006, The Illinois Appellate Court reversed two defense summary judgment orders entered by former Madison County Circuit Judge Phillip Kardis in Jones Act cases and remanded them to Madison County for further proceedings.

In reversing Kardis' orders, the appellate court ruled that employees who work on the Alton Belle Casino are "seamen" and can sue for damages under the Jones Act, a statute that provides a means for recovering legal damages for maritime workers.

Angela Booten, a housekeeper, and Craig Willeford, a slot attendant, filed separate suits for damages under the Jones Act after each suffered on-the-job injuries.

Initially, the Alton Belle operated as a gambling boat that took excursions on the Mississippi River pursuant to the Riverboat Gambling Act (Act). The Act required excursion boats to leave their docks and cruise on "navigable streams" in order for gambling to be allowed.

The Act was amended, effective June 25, 1999, to allow gambling on a "permanently moored barge," as well as a "self-propelled excursion boat."

On June 26, 1999, the 1,500-passenger Alton Belle discontinued cruising. In the cases reversed, Crank testified that there are no plans for the Alton Belle to resume cruising.

In addition to the Alton Belle, the present gambling complex consists of a fun barge, the Spirit of America barge, the employee barge and the patio barge.

Authoring the opinion for the court, Justice Richard Goldenhersh wrote, "Since June 1999, the Alton Belle has left its mooring for dedrifting approximately five times per year. During this process the boat is spun two or three times to dislodge any accumulated drift materials. The boat then returns to its mooring. Despite no longer cruising, the vessel always has fuel on board and remains fully capable of navigating the river. Defendant has never applied for permanent mooring status.

"The Alton Belle's ability to cruise is more than a theoretical possibility. It remains a practical possibility, and the Alton Belle actually navigates the river.

"First, the Alton Belle is required to comply with all Coast Guard regulations pertaining to a passenger vessel and is inspected every 90 days to ensure compliance.

"Second, the Alton Belle maintains a full maritime crew and is equipped with a motor, fuel, and everything necessary to navigate the Mississippi River on which it is moored.

"Third, it can be disconnected from its mooring cables within 7 to 15 minutes, depending upon whether there is an urgent need to free the Alton Belle from its mooring. Dennis Crank testified that defendant maintains the quick-disconnect policy in order to be able to get out of harm's way in case of an emergency.

"Finally, the Alton Belle actually navigates the Mississippi River approximately five times per year when it is released from its mooring and spun around to remove accumulated drift materials."

Justices Spomer and Chapman concurred with Goldenhersh.

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