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Gage v. Canal Barge Co., Inc.

United States District Court, M.D. Louisiana

January 3, 2020




         Before the Court is the Motion for Summary Judgment brought by Canal Barge Co., Inc., and Canal Barge International, LLC (collectively, “CBC” or “Defendants”). (Doc. 10.) The motion is opposed. (Doc. 14.) Defendants filed a reply brief. (Doc. 15.) Oral argument is not necessary. The Court has carefully considered the law, facts in the records, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, the motion is granted in part and denied in part.


         Plaintiff Dillon Gage (“Plaintiff” or “Gage”) sues Defendants for personal injuries under the Jones Act, 46 U.S.C. § 30104. (Doc. 1 at 2.) Alternatively, Plaintiff brings his claim pursuant to 33 U.S.C. § 905(b). (Id.) Plaintiff alleges that on January 23, 2018, while employed by Defendants, he injured his lower back while lifting a Yamaha outboard motor onto the bed of a pickup truck. (Id. at 3, ¶¶ VII-VIII; see also Doc. 10-4 at 50-56[1]). Defendants move for summary judgment arguing that Plaintiff was, as a matter of law, neither a seaman for purposes of the Jones Act, nor is he entitled to recover under § 905(b) for this land-based accident.

         CBC is in the business of moving bulk and liquid cargo on the inland waters of the United States by way of barges. (Doc. 10-1 at 1, ¶ 2.) Plaintiff began work for CBC in September of 2015 as a deckhand aboard CBC tugs. (Id. at ¶ 3; see also Doc. 14-2 at 6.) In approximately December of 2017, [2] Plaintiff requested a transfer to another position: barge readiness technician. (Doc. 14-2 at 4.) CBC contends that Plaintiff's transfer was to the “shoreside department, ” that his connection to vessels was no longer “substantial, ” and therefore, he was therefore no longer a seaman. (Doc. 10-2 at 11-19.)

         CBC maintains that Plaintiff's transfer to his new position as a barge readiness technician would have lasted “at least one year and [he] would have continued to work as a barge readiness technician if not for the incident.” (Doc. 10-1 at 2, ¶ 5.) As a result, argues CBC, while Plaintiff “may once have been a seaman while employed by CBC as a deckhand, when he transferred to the shoreside department and was moved to the barge readiness department, his status permanently changed.” (Doc. 10-2 at 13; emphasis added.) “Therefore, to determine seaman status, the review of Plaintiff's job duties, responsibilities, and connection to vessels must be limited to the period Plaintiff worked as a shoreside barge readiness technician.” (Id.) Since Plaintiff was no longer a seaman following this permanent transfer, Defendants are entitled to summary judgment on the issue of seaman status. In addition, Defendants maintain that since Plaintiff's accident occurred on land, without any vessel involvement, he cannot recover under § 905(b).

         Plaintiff, on the other hand, contends that his transfer to the new position was not permanent but was only an intermediary step to achieving his ultimate goal of becoming a tankerman aboard CBC barges, indisputably seamen's work. (Doc. 14 at 2.) Therefore, “a genuine issue of material fact arises with respect to whether Mr. Gage's new assignment was permanent or temporary.” (Id. at 12.) If temporary, Plaintiff's entire employment with CBC, including over two years as a deckhand, can be considered in determining his seaman status. This would make Plaintiff's time performing seaman's work far in excess of the 30% necessary to survive summary judgment. (Doc. 14 at 11 (citing Roberts v. Cardinal Services, Inc., 266 F.3d 368, 375 (5th Cir. 2001).)

         Alternatively, even if the Court limits its analysis to Plaintiff's duties as a barge readiness technician, Gage's duties as such “included [] building tow, helping put running lights out, inspecting barges for any damage, pumping out water in the hatches, physically cleaning stains on the deck, and assisting with the shifting of barges, ” all duties of a traditional seaman performed aboard an identifiable fleet of vessels. (Doc. 14 at 5; citations to record omitted.) Indeed, Plaintiff maintains that the majority of his time as a barge readiness technician was spent doing seaman's work, at least raising a question of fact as to the “substantial connection” prong of the seaman's test. (Id. at 10-12.) In sum, argues Plaintiff, significant questions of fact exist regarding his status a seaman and therefore summary judgment is inappropriate. Plaintiff does not address the § 905(b) issue raised in Defendants' motion.

         II. STANDARD

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.' ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986) (internal citations omitted). The non-mover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:

In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion.

International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

         In the context of the specific summary judgment before the Court, “[t]he determination of whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact and it is usually inappropriate to take the question from the jury.” Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 931 (5th Cir. 2014) (quoting Becker v. Tidewater, Inc., 335 F.3d 376 (5th Cir. 2003). See also Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (“The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury.”); Bernard v. Binnings Const. Co., 741 F.2d 824, 828 (5th Cir. 1984) (“[S]ummary judgment on seaman status is proper where the only rational inference to be drawn from the evidence is that the worker is not a seaman.”) (quoting Beard v. Shell Oil Co, 606 F.2d 515, 517 (5th Cir. 1979)); Starks v. Advantage Staffing, LLC, 202 F.Supp.3d 607, 611 (E.D. La. 2016) (“[T]he issue of seaman status is ordinarily a jury question, even when the claim to seaman status is marginal.”) (quoting White v. Valley Line Co., 736 F.2d 304, 305 (5th Cir. 1984)). “Thus, summary judgment on seaman status in Jones Act cases is rarely proper.” Starks, 202 F.Supp.3d at 611 (citing Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir. 1983)).


         To determine if a worker is a seaman, the Supreme Court has established a two-pronged test: “First, ‘an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission.' Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.'” Naquin, 744 F.3d at 932-33 (quoting Becker v. Tidewater, Inc., 335 F.3d 376, 387 (5th Cir. 2003), in turn, quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).)

         A. VESSEL

         Central to both prongs of the test is the presence of a “vessel in navigation” or “identifiable fleet” of such vessels to which the worker has a substantial employment-related[3]connection and whose duties contribute to the function or mission of the vessel or fleet. In Stewart v. Dutra Const. Co., 543 U.S. 481, 489 (2005), the Court looked primarily to 1 U.S.C. § 3 to define the word “vessel.” “The word ‘vessel' includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3.

         But for seaman status purposes, Stewart narrowed the statutory definition by requiring that the craft be practically, not merely theoretically, capable of transportation on water. “[A] ‘vessel' is any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.” 543 U.S. at 497 (emphasis added).[4] In Lozman v. City of Riviera Beach, 568 U.S. 115 (2013), the Supreme Court considered whether a floating home was a vessel. Therefore, the Court further refined the definition by focusing on the craft's practical capacity as “a means of transportation on water.” The Court stated, “in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home's physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” Id. at 121.


         As to the requirement that the vessel be “in navigation, ” the Court in Stewart made clear that this phrase was not to be literally applied.

Granted, the Court has sometimes spoken of the requirement that a vessel be “in navigation, ” but never to indicate that a structure's locomotion at any given moment mattered. Rather, the point was that structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time. The Court did not mean that the ‘in navigation' requirement stood apart from § 3, such that a ‘vessel' for purposes of § 3 might nevertheless not be a “vessel in navigation” for purposes of the Jones Act or the LHWCA.
Instead, the “in navigation” requirement is an element of the vessel status of a watercraft. It is relevant to whether the craft is ‘used, or capable of being used' for maritime transportation. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft's use ‘as a means of transportation on water' is a practical possibility or merely a theoretical one.”

Stewart, 543 U.S. 481, 496 (internal citations omitted).


         Workers who are not assigned to a single vessel but perform a seaman's duties aboard multiple vessels may qualify for seaman status when the vessels are commonly owned or controlled. “An important part of the test for determining who is a seaman is whether the injured worker seeking coverage has a substantial connection to a vessel or a fleet of vessels, and the latter concept requires a requisite degree of common ownership or control.” Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997).


         As to the first prong of the Chandris test, requiring that the worker's duties contribute to vessel's function or mission, the Supreme Court specifically rejected the notion that one must “hand, reef or steer” the vessel, i.e. aid in its navigation, in order to be a seaman. McDermott International, Inc. v Wilander, 498 U.S. 337, 343, 355 (1991). Meeting this part of the test “is relatively easy: the claimant need only show that he does the ship's work.” Naquin, 744 F.3d at 933 (quoting Becker, 335 F.3d at 387). “This threshold requirement is ‘very broad,' encompassing ‘all who work at sea in the service of a ship.'” Becker, 335 F.3d at 388 (quoting Chandris, 515 U.S. at 368). “It is difficult to imagine a case in which a worker performs substantial work on a vessel without contributing to its mission.” Thomas M. Schoenbaum, Admiralty and Maritime Law, § 6:9 (6th ed. 2018).

         A wide variety of occupations different from traditional seaman's work have been found to meet this part of the test: for example, in Wilander, 498 U.S. at 343, 355, plaintiff was a painter foreman supervising the sandblasting and painting of piping on oil drilling rigs in the Persian Gulf. In Grab v. Boh Brothers Construction Co., 506 F. App'x. 271 (5th Cir. 2013), iron workers involved in a major bridge construction project over Lake Pontchartrain were found to be seaman.

         The second prong of the test focuses on the worker's connection to the vessel or fleet of vessels.

The purpose of the substantial connection requirement is to “separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation and therefore whose employment does not regularly expose them to the perils of the sea.”

Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 Fed.Appx. 93, 95 (5th Cir. 2009) (quoting Chandris, Inc, 515 U.S. at 368).

         The connection must be “substantial in terms of both duration and nature.” Naquin, 744 F.3d at 933 (quoting Chandris, Inc., 515 U.S. at 368). “Thus, a worker seeking seaman status must separately demonstrate that his connection to a vessel or fleet of vessels is, temporally, more than fleeting, and, substantively, more than incidental. These inquiries are not always distinct but are interrelated elements of the same substantial connection requirement.” Id. at 933.


         When considering the duration element, “[w]here the worker divides his time between vessel and land, an employee can only establish the requisite connection to a vessel-and thus qualify as a seaman-if he spends a substantial portion of his time in service of the vessel.” Grab v. Boh Bros. Const. Co., 506 Fed.Appx. 271, 277 (5th Cir. 2013). To measure the substantiality of the worker's vessel-based work, the Court in Chandris adopted the Fifth Circuit's 30% guideline: where a worker divides his time between land-based and vessel-related service, “[a] worker who spends less than 30% of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Chandris, 515 U.S. at 371.

         Ordinarily, when determining the percentage of a plaintiff's vessel-based work, the Court looks to the “entire length of a plaintiff's employment with the defendant.” Zertuche, 306 Fed.Appx. at 96. But there is an exception to this general rule, “[w]hen a maritime worker's basic assignment changes.” Chandris, 515 U.S. at 372; see also Becker, 335 F.3d at 389; Zertuche, 306 Fed.Appx. at 95-96. “If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assignment of the substantiality of his vessel-related work made on the basis of his new position.” Chandris, 515 U.S. at 372. Stated another way, where the worker's employer reassigns him “to a new position” that represents a “substantial” or “fundamental” change in status, then only the time spent in his new position will be considered in determining whether the temporal requirement is met. Becker, 335 F.3d 389-90. This is sometimes called the “change-of-assignment doctrine.” David W. Robertson & Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 36 Tul. Mar. L.J. 425, 489-90 (2012).

         There is no bright line rule regarding when a new assignment involves a change so substantial, fundamental or permanent as to limit the Court's consideration of the employee's vessel-related work to the new assignment. This is because, as the Fifth Circuit has said,

how long a seaman's status continues after a shoreside assignment is itself a fact question dependent on such factors as the duration of the assignment, its relationship to the employer's business, whether the employee was free to accept or reject it without endangering his employment status and any other factors relevant to the ultimate inquiry: at the moment of injury was the employee a seaman by conventional Jones Act criteria who happened not to be on navigable waters, or was he at that time no longer a seaman whatever his past relationship or his future prospects?

Guidry v. S. Louisiana Contractors, Inc., 614 F.2d 447, 453 (5th Cir. 1980).

         While it is not entirely clear, there is some suggestion in Fifth Circuit jurisprudence that the new assignment must be permanent in order to limit the Court's duration-related inquiry to the time spent in the employee's new assignment. In Becker v. Tidewater, Inc., 335 F.3d 376 (5th Cir. 2003), the court summarized what plaintiff was required to prove in order to establish that he “underwent a change in status and became a seaman[:]… that (i) when plaintiff was assigned to the REPUBLIC TIDE, he was removed from his former position of land-based intern and assigned to a new, sea based position, (ii) this reassignment permanently ...

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