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excluding expert testimony that included a summary of facts from testimony and citations to regulations because no expertise was needed to reach the opinion
Summary of this case from Angelle v. Spartan Offshore Drilling LLCOpinion
CIVIL ACTION NO: 02-1060
March 5, 2003
ORDER AND REASONS
Before the Court is defendant Global Explorer, LLC's motion for partial summary judgment on plaintiff's Jones Act, maintenance and cure, unseaworthiness, and maritime negligence claims. Defendant also moves for summary judgment as to the applicability of Mississippi law to this case if diversity jurisdiction exists. The Court GRANTS defendant's motion for partial summary judgment and GRANTS defendant's motion as to the applicability of Mississippi law.
On or about April 10, 2001, plaintiff was allegedly injured when he worked as a welder aboard the M/V GLOBAL EXPLORER, a vessel owned by defendant Global Explorer. At the time of the accident, the vessel was under construction at the Halter Marine facility in Port Bienville, Mississippi. ( See McBride Aff., attached to Defs.' Mot. Part. Summ. J., Ex. GEX-2 ¶ 10.) The vessel's hull was in a "graving dock," which is "a section of earth that's been excavated below water level and has a pair of watertight doors." (McBride Depo., attached to Defs.' Mot. Part. Summ. J., Ex. GEX-3 at 55; see also photograph attached to McBride Aff.) As the vessel was under construction, the graving dock had been dry, hard ground for months up to and at the time of plaintiff's alleged accident. ( See McBride Aff. ¶ 10; McBride Depo. at 55-56.) The incomplete vessel was incapable of being floated at the time of plaintiff's alleged accident. ( See Id.)
A vessel under construction on dry land is not a vessel for the purpose of conferring admiralty jurisdiction under 28 U.S.C. § 1333 or under 33 U.S.C. § 905(b), the Longshore and Harbor Workers' Compensation Act. See Richendollar v. Diamond M. Drilling Co., Inc., 819 F.2d 124 (5th Cir. 1987) (holding that a rig positioned on blocks on land, incapable of navigation because of holes in its hull, and approximately 85 percent complete at the time of plaintiff's accident, was not a vessel for jurisdictional purposes). Even a hull afloat on navigable waters does not create a vessel for jurisdictional purposes if the vessel itself is under construction and is not yet navigable, even if the vessel is nearly complete. See Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083 (5th Cir. 1987) (companion case to Richendollar).
Only a Jones Act "seaman" may assert claims for maintenance and cure, unseaworthiness, and Jones Act negligence. See, e.g., Cavalier v. PO Ports Louisiana, Inc., 2003 U.S. Dist. LEXIS 589, *11 (E.D. La. 2003); Taylor v. Delta Seaboard Well Serv., 2002 U.S. Dist. LEXIS 10429, *12-13 (E.D. La. 2002); Gims v. Danos Curole Marine Constr., Inc., 1999 U.S. Dist. LEXIS 17068, *9 (E.D. La. 1999). A worker who sustains an injury on an incomplete vessel not yet delivered by the builder, even if it is afloat on navigable waters, is not a seaman for purposes of the Jones Act. See Hollister v. Luke Construction Co., 517 F.2d 920 (5th Cir. 1975) (citing Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 958 (5th Cir. 1971)). Thus, a vessel under construction cannot be subject to a worker's claim of unseaworthiness, see id. at 921, nor can a worker's employer be subject to the worker's claim for maintenance and cure, see Taylor, 2002 U.S. Dist. LEXIS 10429 at *12-13.
Plaintiff does not argue that the M/V GLOBAL EXPLORER was a complete vessel at the time of his accident or that it was somehow capable of navigation. Citing to defendant's affidavit supplied by Steven McBride, defendant's project manager for construction of the M/V GLOBAL EXPLORER, plaintiff points out that the M/V GLOBAL EXPLORER was constructed by combining the hull sections of two old vessels that were floated to the shipyard. Plaintiff argues, therefore, that the M/V GLOBAL EXPLORER was not constructed from the "ground up, but began with already completed major sections of existing vessels. . . ." (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 1-2.) Plaintiff contends that this creates a fact issue about the vessel status of the M/V GLOBAL EXPLORER.
Plaintiff's argument must be rejected. That the M/V GLOBAL EXPLORER was being constructed out of components taken from old vessels does not change the fact that the M/V GLOBAL EXPLORER was, indeed, under construction and incapable of navigation at the time of plaintiff's accident. See, e.g., Taylor, 2002 U.S. Dist. LEXIS 10429 at *10 ("[F]or 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.") Plaintiff does not create a genuine issue of material fact as to the vessel status of the M/V GLOBAL EXPLORER because plaintiff's argument is foreclosed by applicable Fifth Circuit law.
Finally, defendant moves the Court to determine which state's law will apply to any state law claims within the Court's diversity jurisdiction. A district court sitting in diversity applies the choice of law rules of the forum state. Guaranty Nat. Ins. Co. v. Azrock Industries, Inc., 211 F.3d 239, 243 (5th Cir. 2000). The Louisiana Civil Code generally provides, "Except as otherwise provided in this Title, an issue of delictual or quasi-delictual obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue." LA. CIV. CODE ANN. § 3542. The Code provides more specific choice of law rules pertaining to issues of conduct and safety: "Issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state. . . ." Id. § 3543. This rule applies regardless of the parties' domicile or any other factors. See id., 1991 official comment (d). It is undisputed that both the injury-causing conduct and the injury that allegedly occurred in this case — plaintiff's fall from an allegedly defective ladder on the defendant's vessel, the M/V GLOBAL EXPLORER — occurred in Mississippi. Thus, the Court finds that the substantive law of the state of Mississippi applies in this case.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion for partial summary judgment. The Court also GRANTS defendant's motion for summary judgment as to choice of law.