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Armand v. Terral River Serv., Inc.

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

ALBERT ROSS ARMAND
v.
TERRAL RIVER SERVICE, INC

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 247,384. HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE.

AFFIRMED.

Brian M. Caubarreaux, Emily G. Meche, Robert M. Marionneaux, Jr., Brian Caubarreaux and Associates, Marksville, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Albert Ross Armand.

Dan Edward West, McGlinchey Stafford, Baton Rouge, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE: Terral River Service, Inc.

Lake Tindall, LLP, Frank S. Thackston, Heath S. Douglas, Attorney, Pro Hac Vice, Greenville, Mississippi, COUNSEL FOR DEFENDANT/APPELLEE: Terral River Service, Inc.

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.

OPINION

Page 62

[14-610 La.App. 3 Cir. 1] CONERY, Judge.

Albert Ross Armand (Mr. Armand) appeals the trial court's ruling granting a motion for summary judgment in favor of his former employer Terral River Service Inc. (Terral). The trial court found that the work platform at issue did not constitute a " vessel" and, thus, Mr. Armand did not qualify as a seaman under the Jones Act, 46 U.S.C.A. § 30104. Mr. Armand's Jones Act case was dismissed with prejudice and at his cost. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Armand worked for Terral for approximately eight months from June 2012 to February 2013. He was injured on the job and suffered the partial amputation of his right thumb. Mr. Armand had been hired by Terral as an operator/deck hand. His work duties included activities both on the shore and " on water." His on-shore duties included loading fertilizer onto trucks for delivery from Terral's warehouse facility, located just below Alexandria, Louisiana. He also worked on land for approximately three months in the Biloxi-Gulfport, Mississippi, area for Terral, using an excavator to move sand to enlarge the port facility. In his deposition, Mr. Armand estimated that approximately thirty to forty percent of his work time was spent " on the shore."

Mr. Armand's " on water" duties were primarily on a floating, fixed work platform located on the Red River at the Terral facility. The work platform was tied securely with cables to a dolphin, a marine structure moored to the river bottom downstream of the work platform. The work platform was also attached to the river bottom by two sets of three pipes, bound together, and attached at the bow and the stern of the work platform with a system of chains and cables. The pipes [14-610 La.App. 3 Cir. 2] holding the work platform were driven deep into the river bottom. The platform had no navigational function and was fixed in place.

A " track hoe," or excavator, was located on the work platform and was used for offloading fertilizer, rocks, and sand at Terral's location from various transport barges that were moved adjacent to the work platform for that purpose. A hopper for a conveyor system was securely attached to the work platform and the right descending bank of the river and was used to transport cargo from the excavator on the work platform to shore-based storage or transport facilities. In addition, there was also a heavy catwalk attached to the work platform and the river bank, which allowed the work platform to rise and fall with the river level.[1] Mr. Armand estimated in his deposition testimony that approximately sixty to seventy percent of his working time was spent on the work platform.[2]

During his deposition, Mr. Armand and counsel for Terral discussed the procedure

Page 63

for unloading a transport barge when it arrived at the Terral work platform. The barges to be unloaded typically carried fertilizer, sand, and rocks. A " fleet boat" [3] or " line boat" [4] would usually bring two transport barges at a time and push the first barge next to the track hoe on the work platform. The track hoe would then reach out and hold the barge in place while Mr. Armand, or whoever was working, tied the transport barge to the work platform.

[14-610 La.App. 3 Cir. 3] If the transport barge was carrying fertilizer, the fertilizer lids would be removed three at a time and, using the excavator, the fertilizer would then be unloaded. The transport barges carrying rocks and sand were open barges with no lids. The barges would then be systematically unloaded. Once unloaded, the barges would be picked up by a fleet boat or line boat. Deck hands on the fleet or line tow boats were responsible for all mooring operations for the transport barges.

Mr. Armand's deposition testimony confirms that during his employment, he never got on a Terral boat or was attached to a Terral vessel of any kind. The work done for Terral by Mr. Armand was accomplished either on the work platform, on shore, or occasionally, as in this case, on the transport barges removing or replacing the fertilizer lids.[5] He further confirmed that he did not know who owned the tow boats pushing the barges, other than the occasional Terral tow, and he had no involvement in moving the products on the river, only helping the excavator operator unload the materials from the barge onto the shore. Mr. Armand further confirmed in his deposition testimony that he never put " navigation lights on a barge" or " secured a barge to a tow ...


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