Jon C. Wilander, Cross-Appellant v. McDermott International, Inc., Cross-Appellee

Citations: 887 F.2d 88; 1989 WL 119460Docket: 88-4678

Court: Court of Appeals for the Fifth Circuit; January 5, 1990; Federal Appellate Court

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In the case Wilander v. McDermott International, Inc., the plaintiff, Jon C. Wilander, a paint foreman working in the Middle East, sustained injuries from an explosion on an offshore platform. He filed a lawsuit claiming seaman status under the Jones Act and sought punitive damages. The district court denied the defendant’s motion for summary judgment regarding his seaman status but granted it concerning punitive damages, deciding that the seaman status issue should be tried first by a jury.

During trial, the jury determined that Wilander qualified as a seaman due to his substantial connection to various vessels, including the DB-9 and GATES TIDE, as well as the platform where he was injured. The jury awarded him $450,000, later reduced by 25% for contributory negligence. The defendant appealed, arguing that the court should have granted summary judgment on the seaman status issue instead of allowing it to go to the jury.

The court referenced precedents establishing that a worker qualifies as a seaman if assigned permanently to a vessel or performing a significant part of their work on one. It emphasized that seaman status is typically a factual determination for the jury but can be resolved by summary judgment when appropriate.

A court may determine that an individual does not qualify as a seaman under the Jones Act if the facts clearly establish this lack of status as a matter of law, potentially overriding a jury's contrary finding. The Robison test, established in Offshore Company v. Robison, outlines that a plaintiff can qualify for seaman status if they are permanently assigned to a vessel or perform a substantial part of their work on it, and their duties contribute to the vessel's function. In this case, the plaintiff directed sandblasting and painting from the GATES TIDE, which served as a paint boat, thus fulfilling the criteria of the Robison test and supporting the jury's finding of seaman status.

The defendant contends that the Robison test should be replaced with the more stringent Johnson test, which limits seaman status to those performing significant navigational functions. However, the court previously declined to adopt the Johnson test, asserting that it conflicts with Supreme Court precedents advocating a broader interpretation of "aid to navigation." The court emphasized that without a Supreme Court ruling deeming the Robison test incorrect, it must adhere to this established standard. 

Additionally, the plaintiff challenges the jury's finding of contributory negligence, arguing that it is unsupported by adequate evidence, as the sole basis for this finding stemmed from a statement by Indian crewmen, which he deemed inadmissible hearsay. The court, however, permitted the statement's admission under specific exceptions to the hearsay rule.

Rule 803 outlines exceptions to the hearsay rule, specifically noting that hearsay is admissible even if the declarant is available as a witness. Exception (6) allows for the admission of records from regularly conducted activities, provided that the records were created at or near the time of the events recorded, by someone with knowledge, as part of a regular business practice, and maintained in the course of that business. The term "business" encompasses various types of enterprises, whether for profit or not. 

Exception (24) permits the introduction of statements not covered by other exceptions if they possess equivalent trustworthiness. For admissibility, the court must find that the statement is relevant, more probative than other available evidence, and serves the interests of justice. The proponent must also notify the opposing party in advance of the trial about the intent to use the statement and provide specific details.

For a record to be admissible under exception (6), it must fulfill several criteria, including being timely created, prepared by someone knowledgeable, generated in a regularly conducted business activity, and consistent with the business's regular practices.

In the discussed case, the document failed to demonstrate that it was maintained in a regular business activity or that such reports were routinely created, leading to its inadmissibility under exception (6). Additionally, the "last-resort" provision in exception (24) was deemed inapplicable because the statement was created in anticipation of litigation and contradicted by the witness, and the plaintiff received no advance notice of its intended use. Therefore, the statement was also inadmissible under exception (24).

Evidence supported the jury's finding of the plaintiff's contributory negligence, despite the improperly admitted statement from the sole witness potentially influencing the jury's decision. The impact of this statement makes it unclear whether the jury would have reached the same conclusion without it, necessitating a retrial of both contributory negligence and related issues, including primary negligence and damages. The judgment affirming the plaintiff, Mr. Wilander’s, entitlement to seaman status upon injury is upheld; however, other determinations are reversed, and the case is remanded for further proceedings. Additionally, the plaintiff's claim that he contributed to the vessel's navigation is deemed irrelevant to his duties, which were primarily supervisory in nature related to painting and sandblasting. Only duties expected by the employer for seaman status consideration are applicable, excluding any voluntary assistance rendered by the plaintiff.