United States District Court, E.D. Louisiana
IN THE MATTER OF MARQUETTE TRANSPORTATION COMPANY
SECTION "L" (3)
ORDER & REASONS
the Court is Marquette Transportation Company's
(“Marquette”) Motion for Partial Summary
Judgment. R. Doc. 252. Kostmayer Construction
(“Kostmayer”) responds in opposition. R. Doc.
263. Also before the Court is Kostmayer's Motion for
Summary Judgment. R. Doc. 253. Marquette responds in
opposition. R. Doc. 261. Having reviewed the parties'
briefs and the applicable law, the Court now issues this
Order & Reasons.
consolidated cases involve two accidents that occurred on the
Mississippi River on two separate dates. First, on September
22, 2014, the M/V BLAKE DENTON, operated by Defendant
Marquette struck the Barge CP-12, chartered to Plaintiff
Kostmayer, and pushed the CP-12 into Barge OU-701, also owned
by Kostmayer. R. Doc. 1-1 at 1. Both of Plaintiff's
barges were tied to a dock in the Mississippi River in East
Baton Rouge Parish when Barge CP-12 was struck by the M/V
BLAKE DENTON, which was traveling southbound with
approximately thirty-five barges in tow. R. Doc. 1-1 at 1-2.
Barge CP-12 was pushed into Barge OU-701, and both barges
detached from the dock and floated freely downriver until a
tow boat pushed them to the east bank. R. Doc. 1-1 at 2.
Plaintiff alleges that the barges sustained substantial
damages as a result of the impact and required extensive
repairs. R. Doc. 1-1 at 2.
second and unrelated accident occurred on December 29, 2014.
In this accident, Marquette was operating the M/V MYRA
ECKSTEIN near the Terminal 234 Dock Facility on the
Mississippi River in Baton Rouge, LA. According to
Kostmayer's Complaint, the M/V MYRA ECKSTEIN
“contacted” two other crane barges operated by
Kostmayer. At the time of the accident, the crane barges were
spudded down, or anchored, in the Mississippi River, in
relation to work Kostmayer was completing on a mooring
dolphin attached to the CEMUS dock near the 190 bridge in
Baton Rouge. Plaintiffs James Ainsworth
(“Ainsworth”) and Michael Bankston
(“Bankston”) were employed by Kostmayer as
welders, while Joseph Solomon (“Solomon”) was
employed by Ameri-Force and assigned to work for Kostmayer.
At the time of the accident, Ainsworth and Bankston were
eating lunch on the MS DARLENE, while Solomon was working on
the MS ASHLEY, the two crane barges involved in the accident.
Solomon avers that when the M/V MYRA ECKSTEIN allided with
the barge where he was working, he sustained personal
injuries. Solomon seeks various damages, including loss of
earnings and earning capacity, pain and suffering, and mental
anguish and emotional trauma.
present motions consider the seaman and borrowed employee
status of Plaintiff Solomon.
Defendant Marquette's Motion for Partial Summary Judgment
(R. Doc. 252)
Marquette requests that the Court grant partial summary
judgment as to the seaman status of Plaintiff Solomon. R.
Doc. 252. Marquette alleges that Plaintiff Joseph Solomon is
a Jones Act seaman and that Kostmayer was his Jones Act
employer. R. Doc. 252. First, Marquette argues that Solomon
is a Jones Act seaman because he performed the majority of
his work from a barge, had a substantial connection to a
vessel on the Mississippi River, and contributed to the
accomplishment of the mission of that vessel. R. Doc. 252-1
at 9-10. Second, Marquette argues that Kostmayer was
Solomon's Jones Act employer because Kostmayer had the
power to control and direct Solomon's work. R. Doc. 252-1
at 13. Plaintiff Solomon adopts Marquette's position that
he is a Jones Act seaman and was the borrowed employee of
Kostmayer. R. Doc. 262.
responds arguing that the barge on which Plaintiff Solomon
worked was not a vessel because it was always stationary when
Plaintiff Solomon worked on it and its primary function was
not transportation on water. R. Doc. 263 at 4-5.
Kostmayer's Motion for Summary Judgment (R. Doc.
requests that the Court dismiss Plaintiff Solomon's Jones
Act claims against it on the basis that he does not meet the
requirements for seaman status. R. Doc. 253. Kostmayer argues
that Solomon is not a Jones Act seaman because the barges on
which he worked were not vessels. R. Doc. 253-1 at 3. Rather,
Kostmayer argues, the barges were stationary work platforms
because they were stationary at all times worked on by
Solomon, had no independent means of self-propulsion, and
Solomon was not working on them the few times they were
moved. R. Doc. 253-1 at 4-5. Kostmayer argues that because
Solomon was not assigned to a vessel, he cannot qualify as a
Jones Act seaman. R. Doc. 253 at 5.
responds in opposition to Kostmayer's motion. R. Doc.
261. In its response, Marquette offers many of the same
arguments regarding seaman status that it offered in its own
motion for partial summary judgment. In addition, Marquette
argues that the barge on which Plaintiff Solomon was working
at the time of the accident is a vessel. R. Doc. 261 at 2.
Marquette argues that because the barge was practically
capable of navigation and appeared to be capable of
navigation to the casual observer, the barge qualifies as a
vessel under the Jones Act. R. Doc. 261 at 3.