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assessing whether the nature of the plaintiff's repair work “included any ‘seagoing activity’ or whether he ‘was hired to perform seagoing work during the employment in question’ ” and deciding that he was not a seaman even though he spent more than 30 percent of his time aboard vessels
Summary of this case from Dize v. Ass'n of Md. PilotsOpinion
CIVIL ACTION No. 03-2509 SECTION I/2.
April 18, 2005
ORDER AND REASONS
Before the Court is a motion for summary judgment filed on behalf of defendants, Ingram Towing Corp., Orsouth Transport L.L.C., and Capital Marine Supply Inc. The defendants' motion presents the threshold issue of whether a genuine issue of material fact exists with respect to plaintiff's seaman status for purposes of plaintiff's claim against defendants brought pursuant to the Jones Act, 46 App. U.S.C. § 688.
Rec. Doc. No. 38.
BACKGROUND
This maritime personal injury action arises out of three separate incidents occurring on February 6, 2001, March 2, 2001, and September 16, 2002. Plaintiff, Christopher Saienni, was employed by defendant, Orsouth Transport L.L.C. ("Orsouth") at the time of the alleged incidents. Defendant, Ingram Towing Corp., is the successor in interest by merger with Orsouth and defendant, Capital Marine Supply Inc. (collectively, the "Ingram defendants").
Rec. Doc. No. 1, Comp., ¶¶ 4-6.
Saienni first began working for Ingram and/or its predecessors in interest in 1986 as an on-board engineer. In his capacity as a ship-based engineer, plaintiff worked on and sailed with the vessels to which he was assigned. In that capacity, plaintiff's supervisors included both the captain of the vessel, the chief engineer, and the port engineer. During that time, plaintiff was licensed by the United States Coast Guard as a duty engineer and/or assistant engineer. In 1996, plaintiff was transferred to Orsouth and began employment as a "shoreside mechanic." He continued in that position until May, 2003, when he was laid off.
See Rec. Doc. No. 38, Ex. A., deposition excerpts of Christopher Saienni ("Dep. Saienni"), at pp. 15, 17, 33-35.
Id. at pp. 33-35, 48.
Id. at pp. 33-34.
Id. at p. 18.
Id. at p. 35:15-20.
See id. at pp. 36, 38-39. Although plaintiff testified in his deposition that his job title was "shoreside mechanic" from 1996 until his layoff in May, 2003, plaintiff submitted an affidavit in opposition to summary judgment in which he avers that he was employed during that time as a "port-captain." See Rec. Doc. No. 40, Ex. 1, ¶ 2. Putting aside the discrepancy with respect to plaintiff's actual job title, it is undisputed that his primary job duties related to repairing the Ingram defendants' vessels.
In his capacity as a shore-side mechanic (or, alternatively, a "port-captain"), plaintiff's base of operations was the Ingram defendants' land-based fleeing facility in Reserve, Louisiana. Plaintiff's daily duties included performing preventive maintenance, coordinating repairs, and performing actual mechanical and electrical repairs on the Ingram Defendants' vessels. Plaintiff's direct supervisor was the port engineer, Tom Cornwell, who remained plaintiff's direct supervisor until the date of plaintiff's layoff. After plaintiff began working shore side, plaintiff allowed his Coast Guard license to lapse.
Dep. Saienni, pp. 40-41.
Id.
Id. at p. 38.
Id. at p. 18.
During 2001, the period encompassing the alleged incidents, plaintiff performed his maintenance and repair duties both in a land-based mechanic shop and aboard defendants' vessels which were located at either the defendant's fleeting facility or at off-site locations. The majority of the vessels upon which plaintiff performed his repair and maintenance duties were dockside at a shipyard, some of the vessels were moored at a location that required plaintiff to travel in a skiff to the vessel and, about once every three months, plaintiff performed his work aboard a vessel which was underway at sea. Plaintiff testified that he spent approximately 60 percent of his total work time "on the road" traveling to various locations to perform vessel repairs and the other 40 percent of his time "in the fleet." With respect to the time that plaintiff spent working "in the fleet," about half of that time was spent in the land-based mechanic shop preparing to perform onboard repairs of defendants' vessels. Overall, plaintiff estimated that he spent 30 to 40 percent of his total work time aboard defendants' vessels performing repairs when the vessels were docked.
Id. at pp. 48, 52-55.
Id. at p. 53.
Id. at p. 53. According to the Ingram defendants, plaintiff's work "in the fleet" refers to plaintiff's time spent at its fleeting facility in Reserve, Louisiana. See Rec. Doc. No. 38, defendants' statement of uncontested facts, at ¶ 3. Plaintiff does not contest that interpretation of his deposition testimony.
Rec. Doc. No. 40, Ex. 1, affidavit of Christopher Saienni, at ¶¶ 3-4. The Ingram defendants object to plaintiff's affidavit to the extent that it purports to establish the percentage of time plaintiff spent aboard its vessels. They argue that the affidavit is not proper summary judgment evidence because it directly contradicts plaintiff's deposition testimony. See e.g., Carson v. Dynegy, Inc., 344 F.3d 446, 449 n. 2 (5th Cir. 2003) (noting that the district court did not consider an affidavit submitted "pursuant to the theory that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony"). After careful review of the entirety of the deposition excerpts submitted by the defendants, the Court concludes that plaintiff's affidavit does not directly contradict plaintiff's deposition to the extent that it purports to establish a 30 to 40 percent estimate of overall work time spent aboard the Ingram defendants' vessels.
As noted in the body of this opinion, plaintiff testified that he spent 40 percent of his total working time at the fleeting facility and 60 percent of his total working time on the road. Plaintiff also testified that he spent approximately half of the time he spent at the fleeting facility (.5 × 40 percent or 20 percent of his total work time) in the land-based mechanic shop. However, the deposition testimony does not establish how much of the remaining 60 percent of plaintiff's total work time, i.e. that portion of plaintiff's time spent "on the road," was actually spent in transit as compared to how much actual work time was spent on the Ingram defendants' vessels once plaintiff reached the location of the vessels. In arguing that the facts establish that plaintiff spent only 20 percent of his time on its vessels, defendants contend that all of plaintiff's time "on the road" was time spent in transit. However, plaintiff's deposition testimony does not support such a conclusion. Plaintiff testified that he traveled to remote locations and then boarded the vessels in order to make repairs. Therefore, some amount of time factored into plaintiff's time "on the road" is attributable to time spent on the Ingram defendants' vessels ("vessel time") in remote locations. Because plaintiff's deposition testimony does not specifically address that question, plaintiff's affidavit estimate of 30-40 percent overall time spent aboard the vessels (20 percent attributable to vessel time at the fleeting facility plus an additional 10-20 percent of his total working time attributable to vessel time on the road) is not inconsistent with his deposition testimony.
However, to the extent that plaintiff estimates that he spent 15 percent of his time aboard vessels which were underway, the Court finds that the affidavit directly contradicts his prior deposition testimony that he performed repairs on vessels which were underway only once every three months. Accordingly, the Court disregards plaintiff's affidavit to the extent it avers that 15 percent of his total work time was spent aboard the Ingram defendants' vessels which were underway.
When a vessel was not at defendants' land-based fleeing facility and it required repair or maintenance, plaintiff ordinarily traveled in his own vehicle to the location of the vessel. Once plaintiff arrived at a particular location, plaintiff boarded the vessel and the time spent aboard the vessel performing his repair duties varied from one to forty hours. When plaintiff traveled to off-site locations to perform repairs, plaintiff would ordinarily spend his nights at a motel if an overnight stay was required.
Dep. Saienni, at p. 54.
Id. at pp. 49-50. Plaintiff testified that on one occasion, he slept for several hours aboard one of defendants' vessels because he had been awake for thirty or forty hours. See id. at p. 50.
On September 4, 2003, plaintiff filed this lawsuit alleging a personal injury claim pursuant to the Jones Act, a claim for unseaworthiness, and a claim for maintenance and cure against the Ingram defendants. Additionally, plaintiff alleged a claim pursuant to section 5(b) of the Longshore and Harbor Workers Compensation Act ("LHWCA"), 33 U.S.C. § 905(b), or alternatively pursuant to the Jones Act, against defendant, AEP Elmwood, L.L.C. The only claims implicated with respect to the motion before the Court is plaintiff's seaman's claims brought against Ingram defendants.
Rec. Doc. No. 1.
Id., at ¶ 14. Contrary to plaintiff's assertion, the complaint reveals no claim brought against the Ingram defendants pursuant to § 905(b) of the LHWCA. Therefore, this Court does not address any such claim against the Ingram defendants in connection with the instant motion for summary judgment.
Nonetheless, the Court notes that a worker who lacks the requisite connection to a vessel in navigation to qualify for seaman status is limited to the remedies provided by the LHWCA. See Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 89, 112 S. Ct. 486, 492, 116 L. Ed. 2d 405 (1991). Pursuant to the LHWCA, a worker employed by a vessel "owner, owner pro hac vice, agent, operator, or charterer of the vessel" to provide ship repair services (who is not otherwise a seaman entitled to Jones Act coverage) is prohibited from bringing a negligence claim against his employer or the employees of the employer. See § 905(b). Additionally, an LHWCA worker, unlike a Jones Act seaman, does not have a cause of action for unseaworthiness, Becker v. Tidewater, Inc., 335 F.3d 376, 387 (5th Cir. 2003), nor does a non-seaman have a claim for maintenance and cure. Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995) ("Only `seamen' can assert the right to maintenance and cure, but the legal test for seaman status in maintenance and cure actions is the same as the inquiry for standing under the Jones Act."); Hall v. Diamond M Co., 732 F.2d 1246, 1248 (5th Cir. 1984) ("The standard for determining seaman status for the purposes of maintenance and cure is the same as that established for determining status under the Jones Act."). Accordingly, the question of plaintiff's seaman status is dispositive of all the claims alleged against the Ingram defendants.
LAW AND ANALYSIS
I. Summary Judgment StandardPursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "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, 475 U.S. at 587, 106 S. Ct. at 1356 (internal quotation omitted).
In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will resolve factual controversies in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
[T]he plain language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim.") (citation omitted).
II. Seaman Status
The Jones Act provides a seaman with a negligence cause of action against his employer and unlimited damages in the event of a recovery against such employer. Becker, 335 F.3d at 386. Additionally, a Jones Act seaman may sue the owner of any vessel on which he is working for a breach of the warranty of seaworthiness, regardless of whether the vessel is owned by his employer. Becker, 335 F.3d at 387 (citation omitted). Congress did not define the term "seaman" in the Jones Act and it left to the courts the task of giving a cogent meaning to that term. Chandris, Inc. v. Latsis, 515 U.S. 347, 355, 115 S.Ct. 2172, 2183, 132 L. Ed.2d 314 (1995); Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 374 (5th Cir. 2001); In re Endeavor, 234 F.3d 287, 290 (5th Cir. 2000); Schultz v. Louisiana Dock Co., 94 F.Supp.2d 746, 749 (E.D.La. 2000). However, the Fifth Circuit has noted that Congress, in enacting the LHWCA, indirectly furnished some content to the term "seaman":
The LHWCA provides a remedy for land-based maritime workers who are injured during their employment, but the Act explicitly excludes from its coverage "a master or member of a crew of any vessel." [ 33 U.S.C. § 902(3)(G); see also Chandris, 515 U.S. at 355, 115 S. Ct. 2172]. In Chandris, Inc. v. Latsis, the Supreme Court reiterated that "the Jones Act and the LHWCA are mutually exclusive compensation regimes," and that the LHWCA's reference to "a master or member of a crew" is "a refinement of the term `seaman' in the Jones Act." [ Chandris, 515 U.S. at 355-56, 115 S. Ct. 2172]. Thus, the inquiry into seaman status for Jones Act purposes requires a determination whether the injured plaintiff is a "master or member of a crew of any vessel."Roberts, 266 F.3d at 374.
In Chandris, the United States Supreme Court held that the essential requirements for demonstrating the "employment-related connection to a vessel in navigation" required for seaman status are twofold:
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 its duration and its nature.Chandris, 515 U.S. at 368, 115 S.Ct. 2172(internal quotations and citations omitted). Seaman status does not depend on the plaintiff demonstrating an employment-related connection to only one vessel; the law permits a worker to claim seaman status if he has the "requisite connection with an `identifiable fleet' of vessels, [ i.e.,] a finite group of vessels under common ownership or control." Harbor Tug Barge Co. v. Papai, 520 U.S. 548, 554, 117 S. Ct. 1535, 1540, 137 L. Ed.2d 800 (1997) (quoting Chandris, 515 U.S. at 366, 115 S. Ct. at 2189) (alteration supplied). Because the determination of whether an injured worker is a seaman is a mixed question of law and fact, it is usually inappropriate to take the question from the jury. Harbor Tug, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540, 137 L.Ed.2d 800 (1997). Nonetheless, summary judgment with respect to seaman status is mandated where the facts and the law will reasonably support only one conclusion. Id.; Becker, 335 F.3d at 386; In re Endeavor, 234 F.3d at 290. "On the other hand, `[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a `member of a crew,' it is a question for the jury.'" Chandris, 515 U.S. at 369, 115 S. Ct. at 2190 (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S. Ct. 807, 818, 112 L. Ed.2d 866 (1991)).
With respect to the first prong of the Chandris test, which the Supreme Court noted is "very broad," a plaintiff need only show that he "do[es] the ship's work." Id.; Becker, 335 F.3d at 388; In re Endeavor, 234 F.3d at 290. "`All who work at sea in the service of a ship' are eligible for seaman status." Chandris, 515 U.S. at 368, 115 S. Ct. at 2190 (quoting Wilander, 498 U.S. at 354, 111 S. Ct. at 817) (emphasis in original). There is no serious dispute between the parties that plaintiff, as a worker who provided repair and maintenance services to the Ingram defendants' vessels, contributed to the function of the Ingram defendants' fleet of vessels and the accomplishment of the vessels' respective missions. Nor is there any dispute in this case that the Ingram defendants' vessels are an identifiable fleet of vessels under common ownership or control. Instead, the primary dispute between the parties revolves around whether plaintiff meets the second prong of the Chandris analysis, i.e., whether plaintiff has the requisite employment-related connection to the Ingram defendants' vessels that is substantial in terms of both its duration and nature.
The second prong of the Chandris inquiry is a conjunctive test which requires a plaintiff to demonstrate that a plaintiff's employment-related connection to a fleet of vessels is "substantial in terms of both duration (the temporal prong) and nature (the functional prong)." Roberts, 266 F.3d at 374. The fundamental 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 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.Chandris, 515 U.S. at 368, 115 S. Ct. at 2190(citation omitted); see also Harbor Tug, 520 U.S. at 560, 117 S. Ct. at 1543("The substantial connection test is important for distinguishing between sea-and land-based employment, for land-based employment is inconsistent with Jones Act coverage."). In Chandris, the Supreme Court, noting that seaman status "is not merely a temporal concept," clarified that seaman status has a temporal element:
Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases. . . . Nevertheless, we believe that courts, employers, and maritime workers can all benefit from reference to these general principles. And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict.Chandris, 515 U.S. at 371, 115 S. Ct. at 2191. The 30 percent temporal benchmark applies to cases, such as the instant case, in which a worker's connection to an "identifiable group" of vessels in navigation is at issue instead of just one vessel. Roberts, 266 F.3d at 377 ("[W]hen a group of vessels is at issue, a worker who aspires to seaman status must show that at least 30 percent of his time was spent on vessels, every one of which was under his defendant-employer's common ownership or control").
In formulating the prerequisites for Jones Act coverage, the Supreme Court held that it was preferable to focus on "the essence of what it means to be a seaman and to eschew the temptation to create detailed tests to effectuate the congressional purpose, tests that tend to become ends in and of themselves." Chandris, 515 U.S. at 369, 115 S.Ct. at 2190. Therefore,
"the total circumstances of an individual's employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon." Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 ([5th Cir.] 1984). The duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time.Id. at 370; 115 S. Ct. at 2190-91. The Chandris Court emphasized that the Jones Act inquiry is "fundamentally status based" and, therefore, the question of seaman status cannot be resolved by simply looking at the situs of an alleged injury, id. at 361, 115 S. Ct. at 2186 ("Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore."), nor can a worker's status be determined solely by reference to the particular work the injured worker was performing at the time of the alleged injury. Id. at 363, 115 S. Ct. at 2187 ("Thus, a worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured"); see also Becker, 335 F.3d at 390 (noting that the Chandris Court rejected a "voyage test" for seaman status and reasoning that "it must be held that merely serving an assignment on a vessel in navigation does not alter a worker's status"). "In other words, `it is not the employee's particular job that is determinative [of seaman status], but the employee's connection to a vessel.'" In re Endeavor, 234 F.3d at 291 (quoting Chandris, 515 U.S. at 364, 115 S. Ct. at 2188) (alteration in original). Therefore, "even a ship repairman (which is traditional longshoreman work and is one of the enumerated occupations under the LHWCA) may qualify for seaman status if he has the requisite employment-related connection to the vessel." Id. (citation omitted); see Southwest Marine Inc., v. Gizoni, 502 U.S. 81, 89, 112 S. Ct. 486, 492, 116 L. Ed.2d 405 (1991) ("While in some cases a ship repairman may lack the requisite connection to a vessel in navigation to qualify for seaman status . . . not all ship repairmen lack the requisite connection as a matter of law.").
The LHWCA, 33 U.S.C. § 902(3), defines an "employee" as "any person engaged in maritime employment, including . . . any harborworker including a ship repairman. . . ." However, the LHWCA specifically excludes from the definition of "employee" "a master or member of a crew of any vessel." § 902(3)(G). Based upon this exclusion, the Supreme Court has held that an injured workers job title is not dispositive of the question of Jones Act seaman status; the LHWCA preserves the Jones Act remedy for vessel crewmen, even if they are employed by a shipyard and even if they are performing a job specifically enumerated in the LHWCA. Gizoni, 502 U.S. at 88, 112 S. Ct. at 492.
In 1997, the Supreme Court revisited Chandris in Harbor Tug. The Harbor Tug Court explained that in order for the substantial connection requirement to serve its purpose, "the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea." Harbor Tug, 520 U.S. at 555, 117 S. Ct. at 1540. The Harbor Tug Court reasoned that such an inquiry "will give substance to the inquiry both as to the duration and nature of the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees." Id. The Fifth Circuit has held that the "going to sea" passage in Harbor Tug was not intended to articulate a new and specific test for seaman status. In re Endeavor, 234 F.3d at 291. Instead, "the `going to sea' passage in Harbor Tug is a shorthand way of saying that the employee's connection to the vessel regularly exposes him to the perils of the sea." Id. (internal quotations and citations omitted). In short, the Harbor Tug Court merely restated the Chandris principle that
[t]he Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to "the special hazards and disadvantages to which they who go down to sea in ships are subjected." [ Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104, 66 S. Ct. 882, 90 L. Ed. 1099 (1946) (Stone, C.J., dissenting)].In re Endeavor, 234 F.3d at 291 (quoting Chandris, 515 U.S. at 370, 115 S. Ct. at 2190) (reversing the district court's decision that a barge crane operator unloading vessels on the Mississippi River was not a seaman because the worker was aboard the barge only after the vessel was moored or in the process of mooring and holding that the worker was "regularly exposed to the perils of the sea" notwithstanding the fact that "his duties [did] not literally carry him to sea").
Additionally, consistent with the principle that the seaman inquiry is status-based, two exceptions exist with respect to the 30 percent temporal benchmark. "First, an employee who has worked for years in an employer's shoreside headquarters and who is then reassigned to a ship in a classic seaman's job qualifies for seaman status even if he is injured shortly after reassignment." Becker, 335 F.3d at 389 (citing Chandris, 515 U.S. at 372, 115 S. Ct. at 2191). "Second, a worker who has been reassigned to a land-based job cannot claim seaman status based on prior service at sea." Id. Stated differently, if a maritime employee receives a new work assignment in which his essential duties are changed, the assessment of the substantiality of his employment-related connection to a vessel or identifiable fleet of vessels will be made on the basis of his activities in his new position. See Chandris, 515 U.S. at 372, 115 S. Ct. at 2191-92.
The Ingram defendants contend that the undisputed facts in this case support summary judgment because they reveal that, given the totality of the circumstances surrounding plaintiff's employment after he was reassigned to his position as a shore-side vessel repairman, plaintiff was fundamentally a land-based employee who lacked a connection to its fleet of vessels that was substantial in duration and nature at the time he was allegedly injured. In response, plaintiff advances several arguments, each of which will be addressed in turn.
It is uncontested in this case that the relevant period for purposes of assessing plaintiff's seaman status began in 1996, when plaintiff was transferred to his position as a shoreside mechanic.
First, plaintiff contends that he is not precluded from asserting seaman status simply because his job as a vessel repairman is an occupation enumerated in the LHWCA. As noted above, plaintiff's statement of the law is correct; an injured worker may be a Jones Act seaman even if he is a harbor worker performing a job specifically enumerated in the LHWCA. Gizoni, 502 U.S. at 88, 112 S. Ct. at 492. However, plaintiff's argument does not advance his claim of seaman's status because it mischaracterizes the Ingram defendants' argument. As the Ingram defendants note, their argument is not predicated on plaintiff's job title alone. Instead, the Ingram defendants' argument is based upon their contention that plaintiff's employment-related connection is not, in fact, substantial in terms of nature and duration.
Second, plaintiff erroneously argues that the location of his shore-side duties have no bearing on whether he is a seaman. In advancing this argument, plaintiff relies on the Supreme Court's statement in Chandris that Jones act coverage "depends `not on the place where the injury is inflicted . . . but on the nature of the seaman's service, his status as a member of the vessel, and his relationship to the vessel and its operation in navigable waters.'" 515 U.S. at 359-60, 115 S. Ct. at 2185 (quoting Swanson v. Marra Bothers, Inc., 328 U.S. 1, 4, 66 S. Ct. 869, 871, 90 L. Ed. 1045 (1946)). From that passage, plaintiff surmises that the Chandris court jettisoned any reliance on the location of the employee's work as a measure of the nature of a worker's employment-related connection to a vessel. Confusingly, in the same breath, plaintiff highlights the fact that he was injured aboard the Ingram defendants' vessels in support of his claim of seaman status.
Although the Supreme Court cautioned that seaman status should not be determined solely by reference to the place where an alleged injury was inflicted, it is equally true that the Chandris Court rejected the notion "that any maritime worker on a ship at sea as part of his employment is automatically a member of the crew of the vessel within the meaning of the statutory terms." Chandris, 515 U.S. at 363, 115 S. Ct. at 2187. More importantly, the amount of plaintiff's shoreside work is relevant in determining his temporal connection to a vessel. See Chandris, 515 U.S. at 364, 115 S. Ct. at 2188. This Court's inquiry into the totality of plaintiff's employment circumstances will include assessing whether the nature of his actual work included any "seagoing activity" or whether he "was hired to perform seagoing work during the employment in question." Harbor Tug, 520 U.S. at 559, 117 S. Ct. at 1542. In short, the Jones Act seaman status inquiry includes asking whether plaintiff's work was "of a seagoing nature, subjecting him to the perils of the sea." Id. "Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea." Id. at 560, 117 S. Ct. at 1542; see also Chandris, 515 U.S. at 377, 115 S. Ct. at 2194 (concluding that a "court should emphasize that the Jones Act was intended to protect sea-based maritime workers, who owe their allegiance to a vessel, and not land-based employees, who do not"). Obviously, plaintiff's shoreside activity is relevant to, albeit not necessarily dispositive of, the determination of whether summary judgment with respect to plaintiff's seaman's status is appropriate.
Plaintiff's final argument is a factual argument focusing solely on the temporal prong of the seaman inquiry. The only evidence produced by plaintiff in response to the Ingram defendants' motion for summary judgment is plaintiff's affidavit in which he asserts that 30 to 40 percent of his total work time was spent aboard defendants' vessels while they were docked and readily capable of returning to sea. According to plaintiff, his evidence demonstrating at least that there is a genuine issue of material fact with respect to the temporal connection to the Ingram defendants' vessels precludes summary judgment.
As noted supra note 16, the Court disregards plaintiff's averment that he spent approximately 15 percent of his total work time aboard vessels while such vessels were underway.
Plaintiff correctly notes that for purposes of assessing seaman status, a vessel is still considered to be "in navigation" even when the vessel is temporarily moored or dockside and even if such vessel is undergoing repairs. See Chandris, 515 U.S. at 373-74, 115 S. Ct. at 2192.("[I]t is generally accepted that a vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside . . . even when the vessel is undergoing repairs.") (internal quotations and citation omitted); Legros v. Panther Servs. Group, Inc., 863 F.2d 345, 352 (5th Cir. 1988) ("A vessel may be `in navigation,' and the plaintiff working on it a seaman rather than a harbor-worker, `although [the vessel is] moored to a pier, in a repair yard for periodic repairs, or temporarily attached to some object.'") (quoting McDermott, Inc. v. Boudreaux, 679 F.2d 452, 455 (5th Cir. 1982)). Therefore, plaintiff asserts that the 30 percent benchmark has been met in this case.
The Ingram defendants contend that plaintiff spent no more than a total of 20 percent of his total work time aboard its vessels.
Plaintiff's argument that simply meeting the temporal requirement for seaman status precludes summary judgment is unpersuasive. Courts have granted summary judgment against workers claiming Jones Act seaman status notwithstanding the fact that a worker may have spent more than 30 percent of his work time aboard vessels. See e.g., Bouvier v. Krenz, 702 F.2d 89, 92 (5th Cir. 1988); Schultz, 94 F. Supp.2d at 750; Richard v. Mike Hooks, Inc., 799 So.2d 462, 467 (La. 2001) (applying Chandris). In Bouvier, the Fifth Circuit upheld the district court's grant of summary judgment noting:
Avondale's riggers were shore-based workers who worked their shift at the shipyard and then went home; they never ate or slept on board a vessel, and they never went to sea. The evidence indicates that they spent approximately fifty percent of their time working on ships. They removed machinery from the ships so that it could be taken ashore for repairs and then reinstalled it when the repairs were done. They also worked in new ship construction, apparently doing similar work; it is unclear what portion of their shipboard work was construction and what portion was repair. On any given day, they might work on as many as ten different ships.702 F.2d at 90-91 (footnote omitted). The Fifth Circuit, assuming arguendo that the various vessels brought into the shipyard qualified as an identifiable group of vessels for purposes of assessing seaman status, found that the plaintiff's "work as a shore-bound ship repairman working for a shipyard [did] not make him a Jones Act seaman. While none of the facts chronicled above with respect to his work would, taken alone, deny him seaman status as a matter of law, their aggregation does." Id. at 91.
In Schultz, a worker employed at a barge repair facility brought a claim pursuant to the Jones Act. The court noted that the worker slept at home, drove to and from the facility each day, did not eat or sleep on any of the barges that came to the facility for repair work, never traveled or participated in any voyages with any of the barges being repaired at the facility, and never acted as a deckhand on any of the vessels. 94 F. Supp.2d at 747. The worker argued that he was a Jones Act seaman based upon an affidavit in which he averred that he spent more than 40 percent of his time working on the "floating, moored barges as opposed to dry-docked barges." Id. at 750. He also averred that he spent 40 percent of his time being transported up or down the river on tugboats to reach the barges. Id. Nonetheless, the court, applying Chandris, granted summary judgment with respect to seaman status reasoning:
Regardless of whether plaintiff spent one percent or 100 percent of his time performing repair work on barges brought to the facility for repair, working from vessels . . . or being transported around the facility by vessels, the aggregation of circumstances speaking to the nature of his work and his connection to any identifiable vessel(s) demonstrate that, as a matter of law, he is not a seaman. None of plaintiff's work was of a seagoing nature. . . . He did not go to sea or face the perils of the sea in the manner associated with seaman status.Id.
In Mike Hooks, the Louisiana Supreme Court applied Chandris and held that a worker employed in the defendant's dockside yard who spent in excess of 30 percent of his time performing direct repair and maintenance on the defendant's vessels was not a seaman. The court noted:
The fact that Richard spent in excess of thirty percent of his time working on defendant's vessels does not, in and of itself, make him a seaman. Thirty percent is not a magic number automatically rendering an individual's connection with a vessel substantial in duration and nature. Thirty percent is simply a guideline, a minimum below which an individual generally does not qualify as a seaman. Furthermore, the fact that Richard may have been exposed to some perils does not automatically qualify him as a seaman. "Seaman status is not co-extensive with seamen's risks." Chandris, 515 U.S. at 361, 115 S.Ct. at 2186.Id. at 466. Instead, the court considered the totality of the worker's employment-related connection to the vessels:
In this particular instance, we consider an analysis of the following: all of the vessels on which plaintiff worked were dockside; he was never more than a gangplank's distance from shore when working on the vessels; some of the vessels were partially on land while being repaired; he never slept on the vessels; he did not eat on the vessels; he did not keep watch on vessels overnight; he was not a member of Hooks's dredge crew that performed welding on dredges in operation; he never worked on a vessel while it was performing its primary mission; he took his orders from a land-based foreman; he was only aboard small moving vessels once every month, for short durations, where he assisted in moving dredge pipe along a canal adjacent to Hooks's yard; and his repair duties did not take him to sea. While none of these individual facts alone prohibit an employee from attaining seaman status, a consideration of them together shows that Richard was a land-based employee, not a seaman.Id. at 466-467.
Bouvier, Schultz, and Mike Hooks foreclose plaintiff's argument that simply raising an issue of fact with respect to the temporal element of the Chandris inquiry is sufficient to withstand summary judgment. Those cases all highlight the principle announced in Chandris that "[t]he duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman," 515 U.S. at 370; 115 S. Ct. at 2190-91, and that the worker's employment related connection to vessels in navigation must "in fact be substantial in both respects" 515 U.S. at 371, 115 S. Ct. at 2191.
Although Bouvier predated Chandris, the Fifth Circuit's analysis and holding in that case is consistent with the principles announced in Chandris.
Regardless of whether plaintiff may be able to prove that his temporal connection to the Ingram defendants' vessels passes the 30 percent threshold, the Court finds plaintiff has failed to come forward with any specific facts demonstrating that the nature of his work was anything other than land-based repair of the Ingram defendants' vessels. The undisputed facts in this case are (1) at the time of the alleged accidents, plaintiff was employed by the Ingram defendants as a shoreside mechanic operating out of a land-based fleeting facility and mechanic shop; (2) while performing his job duties, plaintiff's time was split between working at the fleeting facility in Reserve and traveling by car to service vessels at other locations; (3) of the 40 percent of plaintiff's total work time which was spent at the fleeting facility, half of that time (20 percent overall) was spent in the mechanic's shop; (4) when plaintiff's work duties were performed aboard vessels, the vessels were generally moored at a dock, shipyard or other stationary location; (5) while performing his work at off-site locations, when an overnight stay was required, plaintiff would spend his nights at motels and plaintiff could only recall one occasion when he slept on one of the vessels; (6) while aboard the vessels, plaintiff did not serve as a deckhand, pilot or captain because the vessels had their own crews; (7) in plaintiff's capacity as a shoreside mechanic, plaintiff reported directly to a shore-based port engineer; and (8) plaintiff performed repairs aboard a vessel while it was underway only four times a year.
The Court finds that the totality of the circumstances would not permit a reasonable fact finder to conclude that plaintiff was a seaman. Although plaintiff may have performed work on the Ingram defendants' vessels, plaintiff's work was not of a seagoing nature. Plaintiff has submitted no evidence undercutting the Ingram defendants' contention that plaintiff's infrequent repair episodes aboard vessels while they were underway was anything other than a transitory or sporadic exposure to the perils of the sea. Plaintiff did not regularly eat or sleep aboard defendants' vessels and plaintiff's duties, although including on-board repairs of vessels, included managing the coordination of repairs for a group of vessels. Although none of the foregoing facts taken alone would automatically preclude seaman status, the Court finds that the aggregation of the circumstances of plaintiff's employment supports only the conclusion that plaintiff was a land-based maintenance and repair coordinator and worker who happened to be on a vessel when he was allegedly injured.
Accordingly, for the foregoing reasons,
IT IS ORDERED that the motion for summary judgement filed on behalf of defendants, Ingram Towing Corp., Orsouth Transport L.L.C., and Capital Marine Supply Inc. is GRANTED and plaintiff's claims are DISMISSED WITH PREJUDICE as against those defendants.