Opinion
CIVIL ACTION NO. 01-3409.
June 3, 2002.
RULING ON MOTION
This matter is before the Court on defendant Delta Seaboard Well Service, Inc.'s, ("Delta Seaboard") motion for summary judgment. R.D. #11. plaintiff Jody Taylor ("Taylor") opposes the motion which was submitted on the memoranda at an earlier date. Considering the motion, the parties' memoranda, the law and the evidence, and for the reasons that follow, defendant's motion for summary judgment is granted.
BACKGROUND
Taylor was hired as a roustabout by Delta Seaboard on April 30, 2001. He was assigned to work on the refurbishment of Rig 8 at a slip in Intracoastal City and began his first day of work on May 2, 2001, at 7:00 a.m. At about 1:15 p.m. that day, Taylor was seriously injured when he apparently fell through a hole on the rig deck to the bottom of an empty compartment. There were no witnesses to the accident. At the time of his accident, Taylor had been moving scrap iron from the rig to a trash pile.
See Affidavit of Wendy Romero, personnel manager of Delta Seaboard Well Service, Inc., Defendant's Exhibit 1.
Employer's Report of Occupational Injury, Plaintiff's Exhibit c.
Rig 8, an inland drilling barge, was purchased by Delta Seaboard in January, 2000, to be refurbished and converted into a P A (plug and abandon) workover rig. At some point prior to May 2, 2001, it was moved by tugboat from a drydock where it had undergone evaluation and hull repairs to a slip in Intracoastal City for completion of the refurbishment. After the deck was removed each compartment was gutted, that is, old structural steel members were cut out and new members put in one compartment at a time. See Plaintiff's Exhibit "D", a photograph of the barge deck at some point prior to May 2, 2001. The living quarters had been damaged by a kitchen fire and were gutted for refurbishment. As of May 2, 2001, Rig 8 had no equipment on board, no crew, no kitchen, incomplete crew quarters, and the deck had been ripped off and gutted. Mr. Melancon testified at his deposition that the interior of the rig was "about 65% vested" as of May 2, 2001, (Melancon Deposition, p. 14, lns. 8-11 and that the rig "was very much inoperable" (id., p. 40, l. 9) and could not be used for anything (id., p. 43, lns. 13-20). The refurbishment was completed and Rig 8 put into service in August of 2001. Even when the finished workover rig is in service, it has no motor power of its own and is moved from job location to job location by two tugs (id., p. 58, lns. 15-22).
See, generally, deposition of Johnny Melancon, Delta Seaboard's Operations Manager, Plaintiff's Reply Memorandum, Exhibit B and Defendant's Opposition Memorandum, Exhibit A.
Affidavit of Johnny Melancon, Defendant's Memorandum in support, Exhibit 2.
After his accident Taylor filed a "Seaman's Complaint" against Delta Seaboard for maintenance and cure, negligence and unseaworthiness. He claims that at the time of his injury he was a seaman, floorhand and member of the crew of an inland drill barge in navigation. Delta Seaboard filed this motion for summary judgment challenging Taylor's status as a seaman.
According to ¶ 7 of his initial Seaman's complaint, he has been paid benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.
ANALYSIS
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ. p. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To grant summary judgment, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1989), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). In reviewing a motion for summary judgment, the record and the evidence must be viewed in the light most favorable to the party opposing the motion. Hardyman v. Norfolk Western Railway Company, et al, 243 F.3d 255, 258 (6th Cir. 2001), (citingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the mere existence of a scintilla of evidence in support of plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff. Id., (citing Liberty Lobby, Inc., 106 S.Ct. at 2511.)
While the question of who is a "seaman" is a mixed question of law and fact, summary judgment "is mandated where the facts and the law will reasonably support only one conclusion." McDermott International, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818 (1991); Reynolds v. Ingalls Shipbuilding, 788 F.2d 264, 267 (5th Cir. 1986); Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986); Garret v. Dean Shank Drilling Co., Inc., 799 F.2d 1007, 1009 (5th Cir. 1986). A worker is a seaman if he is (1) assigned permanently to or performs a substantial part of his work on (2) a vessel in navigation (3)contributing to the function of the vessel or to the accomplishment of its mission. Wilander, 111 S.Ct. at 809-810 (citing with approval the test for seaman status established in Offshore v. Robinson, 266 F.2d 769 (5th Cir. 1959)); Barrett, 781 F.2d at 1072-1074; Garret, 799 F.2d at 1009. "The key to seaman status is employment related connection to a vessel in navigation." Wilander, ill S.Ct. at 817 (emphasis supplied).
The facts recited herein are not in dispute. The dispute is over the legal conclusion to be drawn from those facts. The essence of Delta Seaboard's argument is that under the facts, Rig 8 was not a vessel in navigation at the time of Taylor's accident. It cites Hollister v. Luke Construction Co., et al, 517 F.2d 920 (5th Cir. 1975), for the proposition that although a barge was afloat at the time of plaintiff's accident, it was still under construction and not yet "an instrument of commerce and transportation on navigable waters," therefore not a vessel in navigation. Id. at 921.
The barge on which Hollister was injured was under construction by defendant Luke Construction Co. The bare hull had been completed in Harvey, Louisiana, and towed to Houma for further construction by Luke. At the time of his injury on June 10, 1973, Hollister was working for Luke as a welder constructing a drilling rig, living quarters and other necessary appurtenances on the barge. Work on the barge was completed in December 1973, and the finished vessel was enrolled and licensed by the U.S. Coast Guard on June 1, 1974. The Hollister Court quoted Chief Judge Brown in Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 958 (5th Cir. 1971) as follows: "(f)or there to be a seaman (for the purposes of the Jones Act), there must first be a ship. And an incompleted vessel not yet delivered by the builder is not such a ship." Hollister, 517 F.2d at 921. The Court held that Hollister was therefore unable to recover on the basis of the Jones Act, his claim for unseaworthiness, or his claim for general maritime negligence. Id.; see also Garret, 799 F.2d at 1010.
Taylor argues that at the time of his injury Rig 8 was a barge afloat in Louisiana navigable waters and as such was a vessel in navigation. He argues that Rig 8 had been purchased by Delta Seaboard as an "existing vessel in navigation" and that other than the period during which it was in drydock for hull repairs, "it was a completed vessel capable of transport over navigable water." (Plaintiff's Opposition, p. 3). He points out correctly that a barge without its own motor power can be a vessel in navigation, citing Manual v. P.A.W. Drilling and Well Service, Inc., 135 F.3d 344 (5th Cir. 1998).
Taylor attempts to distinguish Hollister because the barge on which Hollister was injured was "the bare hull of a new barge" on which Hollister was employed as a welder "engaged in initial construction", unlike Rig 8 which was merely being "refurbished" on the date of the casualty. He also argues that the barge in Hollister was still in the possession of the builder and had not yet been delivered to the owner, whereas Delta Seaboard was the owner of and doing the work on Rig 8. (Plaintiff's Statement of Contested Facts.)
In Garret the plaintiff also attempted to distinguish Hollister on its facts by arguing that the barge on which Garret was injured had been delivered by the original builder to the final owner and user who was then completing the construction of the vessel. The Fifth Circuit disagreed, stating that so long as the vessel had never been in navigation for its intended use, the "pivotal question is whether the vessel has been placed in navigation for its intended purpose," not who is completing the construction on the vessel. Garret, 799 F.2d at 1009;see also Fredieu v. Rowan Companies, Inc., 738 F.2d 651, 654 (5th Cir. 1984) (a drilling rig partially completed by a builder and transferred by tow with navigational lights, operational generator and lighting, plumbing, galley, living quarters and personnel aboard, to owner for final "rigging up" was not a vessel in navigation for purposes of the Jones Act during the "rigging up" work.)
Taylor takes Garret's argument the next step, arguing that Rig 8 had already been placed in navigation for its intended use as an inland drilling rig. There is no dispute that Rig 8 was originally constructed to work and did work as an inland drilling barge, or that Delta Seaboard purchased it to refurbish and convert it into a P A workover rig. However, for purposes of determining whether a vessel is in navigation under the Jones Act, the distinction between a new vessel undergoing initial "construction" and an old vessel being "refurbished" for conversion to a different use is immaterial.
The significant distinction is that between what is a "vessel" and what is a "vessel in navigation" for purposes of seaman status under the Jones Act. The issue in Manual was whether the workover rig on which Manual was injured was a "vessel" within the meaning of the Jones Act. There was no dispute that the rig was engaged in the work for which it was constructed at the time of plaintiff's accident. According to the Fifth Circuit, the "bedrock premise" in determining what is a vessel is to determine the "purpose for which the craft is constructed and the business in which it is engaged." Manual, 135 F.3d at 350 (citing The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903)). The Fifth Circuit defines a vessel as "in navigation":
See Manual, 135 F.3d 344 (5th Cir. 1998) generally for a thorough discussion of the distinction between a Jones Act vessel that also serves as a work platform and a floating work platform that is not a vessel.
when the vessel is "engaged in (sic] an instrument of commerce and transportation on navigable waters." Williams v. Avondale Shipyard, Inc., 452 F.2d 955, 958 (5th Cir. 1971). A nonmerchant vessel is in navigation if it is engaged in its expected duties on navigable waters.Garret, 799 F.2d at 1009.
The Fifth Circuit has held that even a completed, launched vessel undergoing sea trials is not a vessel in navigation for purposes of the Jones Act because the vessel "is not yet an instrumentality of commerce," that is, it is not engaged in its expected duties, and is therefore not in navigation. Reynolds, 788 F.2d at 267, citing Williams, 452 F.2d at 958, and Bouvier v. Krenz, 702 F.2d 89, 91 n. 3 (5th Cir. 1983) (adhering to Williams). Considering its explicit definition of a vessel in navigation and its insistence that to be in navigation the vessel must actually be engaged in its expected duties at the time of the casualty, the Fifth Circuit cannot have assumed that once a vessel is initially in navigation engaged in whatever its particular duties may have been at that time, its status at a vessel "in navigation" attaches for the life of the vessel regardless of its immediate circumstances. Whether a vessel may have been in navigation at some point before and after a particular casualty is immaterial to whether it was in navigation at the time of that casualty.
There is no dispute that Rig 8 was not engaged in its expected duties as a P A workover rig on May 2, 2001. It had no working equipment on board, no deck, no crew, no kitchen and incomplete crew quarters. Rig 8 was incapable of performing its expected duties at the time of Taylor's accident. Because Rig 8 was not a vessel in navigation at the time of Taylor's accident, he cannot be a Jones Act seaman and his "Seaman's Complaint" for maintenance and cure under the Jones Act, maritime negligence and unseaworthiness must be dismissed.
Accordingly, for the foregoing reasons,
IT IS ORDERED that defendant Delta Seaboard Well Service, Inc.'s motion for summary judgment be and is hereby GRANTED.