Weaver et al v. Signal Mountain Cement Co. et al

MOTION for Summary Judgment

E.D. Tenn.January 31, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE MATTHEW WEAVER CIVIL ACTION NO.: 16-00015 and SABRINA WEAVER JUDGE THOMAS A. VARLAN VERSUS SIGNAL MOUNTAIN CEMENT MAGISTRATE SUSAN K. LEE COMPANY, and SERODINO, INC. SIGNAL MOUNTAIN CEMENT COMPANY’S MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Defendant, Signal Mountain Cement Company, who respectfully moves for an Order dismissing all claims of Matthew Weaver on the grounds that he is not a seaman as a matter of law and Signal Mountain Cement Company is immune from all liability pursuant to the provisions of 33 U.S.C. 905(a) and further, dismissing all claims of his wife, Sabrina Weaver, on the grounds that she is not entitled to recover against Signal Mountain Cement Company as a matter of law under either the Jones Act or Maritime Law for those reasons more fully set forth in the Opening Brief in Support of Employer’s Motion for Summary Judgment. Respectfully submitted, /s/ David M. Flotte DAVID M. FLOTTE, T.A. (#1364) MARCELLE P. MOULEDOUX (#30339) SALLEY, HITE, MERCER & RESOR, LLC 365 Canal Street – Suite 1710 New Orleans, LA 70130 Tele: (504) 566-8800 Fax: (504) 566-8828 Email: dflotte@shrmlaw.com mmouledoux@shmrlaw.com Attorneys for Defendant, Signal Mountain Cement Company Case 1:16-cv-00015-SKL Document 37 Filed 01/31/17 Page 1 of 2 PageID #: 161 - 2 - CERTIFICATE OF SERVICE I hereby certify that on the 31st day of January, 2017 I sent the above pleading to all counsel via email. /s/ David M. Flotte DAVID M. FLOTTE Case 1:16-cv-00015-SKL Document 37 Filed 01/31/17 Page 2 of 2 PageID #: 162 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE MATTHEW WEAVER CIVIL ACTION NO.: 16-00015 and SABRINA WEAVER JUDGE THOMAS A. VARLAN VERSUS SIGNAL MOUNTAIN CEMENT MAGISTRATE SUSAN K. LEE COMPANY, and SERODINO, INC. OPENING BRIEF IN SUPPORT OF EMPLOYER’S MOTION FOR SUMMARY JUDGMENT MAY IT PLEASE THE COURT: Plaintiff, Matthew Weaver, filed a claim against Mover, Signal Mountain Cement Co. (“Signal”), his employer, under the Jones Act (46 USC 30104, formerly 46 USC 688) seeking recovery of money damages due to injuries he obtained when he fell on the deck of an empty hopper barge as he was handling lines to move the barge into position under a loading spout. The barge he was aboard was moored at a marine terminal on the Tennessee River in Marion County, Tennessee. Signal moves for summary judgment dismissing all claims of Matthew and Sabrina Weaver because Weaver is not a seaman as a matter of law. Instead, Weaver, a traditional longshoreman, is covered under the Longshore and Harborworkers’ Compensation Act (“LHWCA”) as a matter of law. Thus, employer immunity is present. 33 USC 905(a). 33 USC 905(a) provides: The liability of an employer prescribed in section 4 [33 USC § 904] shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this Act. . . Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 1 of 19 PageID #: 163 - 2 - Signal purchased insurance coverage and its insurer paid Longshore Benefits. Its Longshore carrier has intervened for reimbursement. (See Intervention, Rec. Doc. 25, et. seq.). Documents supporting this Motion are primarily the sworn Deposition of the Plaintiff, excerpts of which are attached as Exhibit A, the Exhibits attached to and authenticated by Mr. Weaver bearing the same Exhibit numbers as stated in the deposition. Thus, Signal’s Motion is based upon Plaintiff’s testimony which, solely for the purpose of this Motion, is uncontested. I. Background of Signal’s Mining and Manufacturing Business and Marine Transportation Involved Signal operates an open pit mine at Bennett’s Lake. Third party contractors hired by Signal blast and dig limestone and other rock ore deposits from the earth and load large rocks onto big trucks to transport them across Signal Mountain’s Bennett’s Lake quarry property to a rock crusher. See Deposition Exhibit #14. The crusher makes smaller rocks out of larger ones. The crusher is located on land. Deposition Exhibit 7 is an aerial photograph of Bennett’s Lake Quarry. See Exhibit A, Deposition of Matthew Weaver at p. 51, ln. 20 through p. 52, ln. 1. The area where it looks like there is a face cut in Deposition Exhibit 7 is where defendant has mined rock and where blasting takes place. See Deposition of Matthew Weaver at p. 52, lns. 12-16. The opposite side of the picture shows the Tennessee River where barges are loaded at the site. See Deposition of Matthew Weaver at p. 52, lns. 17-21. There is a large crusher with a conveyor that leads to another crusher which reduces the size of rocks and drops the aggregate down through screens into a cone crusher and then a smaller crusher to reduce the size of the rocks and it leads to a line of conveyors closer to the bank of the river where rock is selected that is specifically chemically correct for a particular pile and while there are several barges in the photograph, only one barge can be loaded at a time. See Deposition of Matthew Weaver, Exhibit A at p. 53, ln. 6 through p. 54, ln. 21, Deposition Exhibits 14, 15. The piles of crushed/mined Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 2 of 19 PageID #: 164 - 3 - material feed the underground conveyors system that carries the product to the water’s edge to be loaded on barges. See Deposition of Matthew Weaver at p. 55, lns. 6-24. See Deposition Exhibit 16, conveyor tunnel and Deposition Exhibit 11, photographs of barges at Bennett’s Lake before loading. There are several feeders/several piles but each have different chemical or mineral make-up and allows the barge loader to regulate the feed to make the product loaded into the barge chemically acceptable to the plant at Bennett’s Lake Quarry. See Deposition of Matthew Weaver at p. 60, lns. 10-20. The barge loading area at Bennett’s Lake includes a rectangular structure which is an analyzer room that analyzes the mineral make up of product carried on the belt so the barge loader is able to adjust his feeders for the chemical make-up to be loaded onto the barges. See Deposition of Matthew Weaver at p. 61, ln. 18 through p. 62, ln. 6. See Photograph of Analyzer Building, Deposition Exhibit 10. Only one barge could be loaded at a time at Bennett’s Lake. See Deposition of Matthew Weaver at p. 63, lns. 1-12. The cargo is carried underground, under the road to reach the analyzer building before it travels out to the water’s edge to be loaded onto the barges. See Deposition of Matthew Weaver at p. 70, lns. 14- 23 and Exhibit 10, 12. Bennett’s Lake is alongside the commercial navigation channel of the Tennessee River. See Deposition of Matthew Weaver at p. 63, lns. 10-14, and see Deposition Exhibit 10. The barge loader controls the operation from a small building called the control room, marked as Exhibit 13 from which he operates the winches, hoppers, feed mechanisms and conveyor systems. See Deposition of Matthew Weaver at p. 71, lns. 8-17. The control room extends out over the water but is supported by land; it does not float. See Deposition of Matthew Weaver at p. 71, ln. 18 through p. 72, ln. 7. After the barges are loaded at Bennett’s Lake Quarry, they sail away with power provided by a tug boat after a tow is established. See Deposition of Matthew Weaver at p. 85, lns. 8-12. Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 3 of 19 PageID #: 165 - 4 - The inland hopper barges are all 35 feet wide and have a length of about 200 feet. Thousands of hopper barges of this size are used to carry dry cargo products in commerce in the same manner for decades. They are used to carry the crushed rock ore from Bennett’s Lake quarry to other locations including Signal’s Chattanooga, Tennessee cement manufacturing plant so that those rocks can be made into marketable cement. See Photograph of Chattanooga terminal where barges are unloaded, Deposition Exhibit 9. The Chattanooga manufacturing plant is located about 25-30 miles away from the Bennett’s Lake quarry. See Deposition of Matthew Weaver, Exhibit A; p.28, ln. 22 through p. 29, ln. 23. The open hopper barges have no motive power. They are used to carry cargo in commerce within the state of Tennessee. The ultimate user mixes powdered cement with water and sand for roads, sidewalks, foundations, soil stabilization and other applications. Signal Mountain is not in the business of operating tow boats. Signal is a cement manufacturer. Signal has a contract with Serodino whereby Serodino supplies the hopper barges to carry the cargo and tow boats to move the hopper barges. (See Rec. Doc. 25-1, p. 2 of 19). Serodino crews the tow boats with seaman who are members of the crews of the tow boats and who are experienced in operating the tow boats and wiring the barges together so that they can travel distances safely as a unit. When tow boats carry barges they are wired together in a way different from the manner in which they are handled by stevedores using soft lines during loading because in transit they have to deal with the risk of being broken up when they encounter conditions much different than when the barges are sitting at a dock or in the vicinity of a loading spout. See Deposition of Matthew Weaver, Exhibit A; p. 106, ln. 22 through p. 107, ln. 17. After barges carrying cargo are unloaded at the Chattanooga cement manufacturing facility, the empty barges are rewired by Serodino and are pushed/towed back to Bennett’s Lake quarry Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 4 of 19 PageID #: 166 - 5 - for loading by Signal’s longshoremen at the marine terminal. The process of wiring the barges together is called “building the tow.” II. Facts as to Plaintiff’s Employment with Signal Mountain Weaver began employment for Signal at the Chattanooga cement manufacturing plant in 2011 where he initially worked as a laborer. See Deposition of Matthew Weaver at p. 25, lns. 13-15; p. 35, ln. 25 through p. 36, ln. 2 and Deposition Exhibit 4, Weaver Occupational Record and Exhibit 5, job description of Laborer. Exhibit 5 includes job descriptions for Barge Loader Helper, Laborer, and Mechanical Maintenance man (hereinafter “MML2”). See Deposition of Matthew Weaver at p. 38, lns. 1-17. From 2011 until July of 2014, Matthew Weaver worked at a facility in Chattanooga, Tennessee. See Deposition of Matthew Weaver at p. 26, lns. 11-14. At that time, while working in Chattanooga, Matthew Weaver was an MML2. See Deposition of Matthew Weaver at p. 28, lns. 6-15. As MML2, Matthew Weaver serviced land based mechanical equipment. See Deposition of Matthew Weaver at p. 34, lns. 15-24. He was a member of the local union. His job duties as a laborer are set forth in the job description attached as Deposition Exhibit 5 Weaver worked at Bennett’s Lake quarry from July of 2015 until his accident in December of 2015, a period of about 5 months. The location where Matthew Weaver claims injury was Bennett’s Lake Quarry. See Deposition of Matthew Weaver at p. 28, lns. 16-21. Upon his re-assignment to that facility, his involvement with the Chattanooga manufacturing plant ceased. When he was reassigned to Bennett’s Lake, Matthew Weaver underwent training to operate heavy equipment on land and as a barge loader helper. See Deposition Exhibit 6. He never left the company property except when he had training days when he went for training at Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 5 of 19 PageID #: 167 - 6 - the Chattanooga facility conference room. See Deposition of Matthew Weaver at p. 87, ln. 2 through p. 88, ln. 2. By August 2015, Weaver began working as a “barge loader helper,” completing that training on August 14, 2014. See Deposition Exhibit 6. The purpose of Weaver’s position as a barge loader helper was to load cement into barges and general maintenance of barge-loading equipment. See Deposition Exhibit 5. Matthew Weaver generally worked 40 hours per week, Monday through Thursday, 10 hours per day, subject to exceptions. See Deposition of Matthew Weaver at p. 105, lns. 6-13. The work of Matthew Weaver’s barge loading operations was usually conducted mostly in day light hours. See Deposition of Matthew Weaver at p. 104, ln. 20 through p. 105, ln. 5. The Signal Mountain crew of Matthew Weaver did not generally work 24 hours a day. See Deposition of Matthew Weaver at p. 102, ln. 24 through p. 103, ln. 15. Usually, Matthew Weaver did not see the tugs at the quarry because they have already left by the time he gets to work in the morning. See Deposition of Matthew Weaver at p. 97, ln. 19 through p. 98, ln. 4. Normally, when Weaver started each day, empty barges had been dropped off the night before or earlier that morning so that he could do his job as a barge loader helper. See Deposition of Matthew Weaver at p. 105, lns. 14-22. In general, when working as a barge loader helper, Matthew Weaver would start by going to the barge loading area, making sure the cross cable was hooked to the kevel on the outside barge, and untying the soft lines left by the tug crew. Mr. Weaver would free the barge closest to the cross cable winch so that it could be hooked up to the land based winches and controlled by the barge loader. He would take the cable that runs from the land-based winch to the shiv up river and hook it to the inside kevels of the barge to be loaded so the barge loader could pull the barge to the loading spout. See Deposition of Matthew Weaver at p. 93, ln. 24 through p. 94, ln. 23. The barges are tied up to Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 6 of 19 PageID #: 168 - 7 - three pile clusters and also connected with a cross cable that runs to a land based winch. See Deposition of Matthew Weaver at p. 65, ln. 23 through p. 66, ln. 24. All three winches are close to the analyzer shown on Exhibit 10 on land. See Deposition Exhibit 17 and Exhibit A, Deposition of Matthew Weaver, at p. 69, lns. 10-12. Each barge would take two hours to load, except for masonry barges which would take about four hours to load. See Deposition of Matthew Weaver at p. 91, ln. 24 through p. 92, ln. 11. Matthew Weaver’s job duties include taking draft measurements to make the sure barges are loaded to the proper level. See Deposition of Matthew Weaver at p. 110, ln. 24 through p. 111, ln. 1. After Weaver and the other Signal Mountain employees loaded the barges at Bennett’s Lake, the tow boat crews would come pick them up. See Deposition of Matthew Weaver at p. 95, ln. 16 through p. 96, ln. 1. When the tug crews came to drop off empty barges, they would tie the empty barges with soft lines without having the cross cable, so in that instance Matthew Weaver would have to run the wire from the land-based cross cable over the top of the barges and attach it to hold the barges in place when he arrived on site. See Deposition of Matthew Weaver at p. 97, lns. 3-14. The cross cable prevents the barges from floating away because it runs from the land based winch across the hoppers to the furthest barge from shore. See Deposition of Matthew Weaver at p. 97, lns. 11-18. On occasions when barge tows came in while he was on duty, Matthew Weaver would have no immediate responsibility while the barges were under the command of the tug captain because Matthew Weaver was not part of the tug captain’s crew. See Deposition of Matthew Weaver at p. 106, lns. 10-17. When the barges came in from a tow, they were hard wired by the tug’s crew and Matthew Weaver’s job duties had nothing to do with untying the hard wires that were used to keep the barges together during river navigation. The barges were Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 7 of 19 PageID #: 169 - 8 - moved by a tug boat because that was the specific job of the tug captain and crew. See Deposition of Matthew Weaver at p. 106, lns. 10-22. When going up and down river, there are wires, cables, ratchets, slings, shackles used to hold the barges together in transit. See Deposition of Matthew Weaver at p. 106, ln. through p. 107, ln. 5. Matthew Weaver and job duties had nothing to do with the wires, cables, ratchets, slings they use to hold the barges together in transit (when the tow is underway) because that is under the discretion of the tug crew and is dictated by the tug captain. The only wires Matthew Weaver deals with are the dock based winch wires and the cross cable used to hold the barges in position during loading after the tug crew’s wires and rigging is removed by the tug crews. See Deposition of Matthew Weaver at p. 106, ln. 22 through p. 107, ln. 17. During loading, to control the barge, it is attached to both the up river and down river winches so that it can be moved by operating the winches. See Deposition of Matthew Weaver at p. 113, lns. 1-6. Some of the barges with winches have a big wheel which can be used to pull in the hard rigging wires used during barge navigation, but Matthew Weaver had been instructed to not touch the barge winches because that is part of the boat crews’ job. See Deposition of Matthew Weaver at p. 115, ln. 22 through p. 116, ln. 22. Matthew Weaver never rode a tow between Bennett’s Lake and Chattanooga. See Deposition of Matthew Weaver at p. 107, lns. 22-24. Mr. Weaver observed that the barges that arrive at Bennett’s Lake are hard wired to each other. See Deposition of Matthew Weaver at p. 108, ln. 23 through p. 109, ln. 2. At Bennett’s Lake when the tug leaves after the barges are dropped off, the hard wires that are used in transit are no longer holding the barges together. See Deposition of Matthew Weaver at p.109, lns. 3-7. Mr. Weaver does his job on the barges after they are dropped off. The empty barges are secured to each other with soft lines after the hard Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 8 of 19 PageID #: 170 - 9 - rigging was removed. See Deposition of Matthew Weaver at p. 109, lns. 1-15. The deckhands of the tow boats remove the wire cables before Mr. Weaver is involved. See Deposition of Matthew Weaver at p. 109, lns. 20-21. The soft lines that are present after they are dropped off are usually yellow and black poly propylene soft lines. See Deposition of Matthew Weaver at p. 109, ln. 22 through p. 110, ln. 2. There is no tug connected to the barges being loaded at the time that Matthew Weaver is involved in the loading process at Bennett’s Lake. See Deposition of Matthew Weaver at p. 110, lns. 10-20. Matthew Weaver claims the accident occurred when he was pulling on a soft line, walking backwards, when he stepped on a shackle. See Deposition of Matthew Weaver at p. 181, ln. 17 through p. 183, ln. 16. Matthew Weaver never slept on any barge or boat. See Deposition of Matthew Weaver at p. 270, lns. 2-4. Matthew Weaver ate on land while working for Signal Mountain. See Deposition of Matthew Weaver at p. 270, lns. 5-23. Matthew Weaver never watched over the vessels or barges overnight. See Deposition of Matthew Weaver at p. 270, ln. 24 through p. 271, ln. 1. Matthew Weaver went home every night to sleep in his own house after driving to and from the quarry. See Deposition of Matthew Weaver at p. 271, lns. 5- 9. Matthew Weaver never worked on any tug boat to perform job duties. See Deposition of Matthew Weaver at p. 272, lns. 6-8. Matthew Weaver never had any maintenance chores on any tug boat while working for Signal. See Deposition of Matthew Weaver at p. 272, lns. 9-14. Matthew Weaver did not have any maintenance chores on the barges themselves. See Deposition of Matthew Weaver at p. 272, lns. 15-18. Matthew Weaver did not pump any of the barges. See Deposition of Matthew Weaver at p. 272, ln. 19 through p. 273, ln. 4. Matthew Weaver never painted any of the barges. See Deposition of Matthew Weaver at p. 273, lns. 5-6. Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 9 of 19 PageID #: 171 - 10 - Matthew Weaver never serviced any of the boat engines. See Deposition of Matthew Weaver at p. 273, lns. 7-21. When Matthew Weaver had no barges to load, he would report to his supervisor, Bob Feidler, who would instruct him as to where he needed to be working which might include cleanup of tunnels or something else on land. See Deposition of Matthew Weaver at p. 167, lns. 16-25. Matthew Weaver’s job duties including checking underground conveyor tunnels that were approximately 150 feet long. See Deposition of Matthew Weaver at p. 141, lns. 4-20. This included the conveyor system that went under the road shown on some of the photographs. See Deposition of Matthew Weaver at p. 142, lns. 6-13. The tunnels had underground lightings and part of Matthew Weaver’s job duties was to write up if there was a light that was out in the tunnels. See Deposition of Matthew Weaver at p. 142, lns. 18-23. See Deposition Exhibit 28, SMPD 98. Between July and December of 2014, when no barges were being loaded even if he worked generally as a barge loader helper, on those days he would be at the mercy of whatever quarry supervisor ordered him to do. See Deposition of Matthew Weaver at p. 90, ln. 14 through p. 91, ln. 1. Matthew Weaver gave breaks to the truck drivers when there were other mechanical delays. See Deposition of Matthew Weaver at p. 91, lns 2-22 and Deposition Exhibits 18 and 19. Weaver’s job duties included cleaning and checking and maintaining the analyzer and belts on and under the land to make sure the material was properly moving toward the barges to be loaded. See Deposition of Matthew Weaver at p. 63, lns. 2-9. Matthew Weaver’s job included operating a bulldozer at Bennett’s Lake on land. See Exhibit 20, Deposition of Matthew Weaver at p. 81, lns. 8-10. Matthew Weaver’s job included operating dump trucks on land at Bennett’s Lake. See Exhibit 18, Deposition of Matthew Weaver at p. 81, lns. 11-13. Matthew Weaver also Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 10 of 19 PageID #: 172 - 11 - did repair work on cables of a piece of equipment called the Harlow. See Photo, Exhibit 22, Deposition of Matthew Weaver at p. 81-82. Matthew Weaver operated the skid steer loader on land at Bennett’s Lake. See Deposition Exhibit 23 and Deposition of Matthew Weaver at p. 82, lns. 9-16. IV. Legal Discussion The Longshore and Harbor Workers’ Compensation Act (hereinafter “LHWCA”) was originally passed in 1927 to create a no fault compensation system for certain workers engaged in marine employment including traditional longshoremen. The benefits are fixed with no recovery for general damages. Courts over the next 45 years judicially extended an unseaworthiness remedy to longshoremen who were exposed to hazards similar to seamen because they were loading and unloading ships and other commercial vessels. Unseaworthiness is a seaman’s remedy for lost wages and general damages recoverable when the vessel to which the seaman was assigned was not reasonably fit for its intended purpose. In the 1972 amendments to the LHWCA, the tort remedies were eliminated except for vessel negligence. Scindia Steam Navigation Co., Ltd. v. De Los Santos, et al, 451 U.S. 156 (1981). Signal is not a vessel owner so immunity from all claims of Weaver is complete, except for LHWCA benefits which Weaver has been receiving since the day of the accident without interruption. 33 USC 905(a). See Rec. Doc. 25. The LHWCA, provides the definition of an employee covered under the act, as follows: “The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include— … Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 11 of 19 PageID #: 173 - 12 - (G) a master or member of a crew of any vessel…” 33 USC 902(3). Weaver claims injury when handling a line at a marine terminal at Bennett’s Lake quarry. He was aboard a barge, pulling on a line to move the barge in position for loading. He was in the process of maneuvering a hopper barge to be positioned to receive cargo from the land-based loading spout. He was an employee engaged in longshoring operations and a harbor worker under the LHWCA definition. Mr. Weaver is similar to the plaintiff, Ralph Caputo, who was part of the stevedoring gang at a marine terminal. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, (1977). The U.S. Supreme court has held that a worker cannot be a longshoreman and also a Jones Act Seaman. Instead, they are mutually exclusive. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 111 S. Ct. 807 (1991); Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S. Ct. 2172 (1995). The “master or member of the crew” under the LHWCA is what determines whether a worker is a seaman. Wilander, Supra., Chandris, Supra. The court in Chandris addressed the question of LHWCA workers seeking to assert claims as a seaman stating: “. . . Our decision in Swanson v. Marra Brothers, Inc., 328 U.S. 1, 7, 66 A.Ct. 869, 872, 90 L.Ed. 1045 (1946), acknowledged that Congress had expressed its intention to ‘confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recover recognized by the Haverty case only such rights to compensation as are given by [the LHWCA]. See also South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 257, 60 S.Ct. 544, 547-548, 84 L.Ed. 732 (1940). Through the LHWCA, therefore, Congress ‘explicitly denied a right of recovery under the Jones Act to maritime workers not members of a crew who are injured on board a vessel.’ Swanson, supra, at 6. And this recognition process culminated in Wilander with the Court’s statement that, HN8 ‘with the passage of the LHWCA, Congress established a clear Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 12 of 19 PageID #: 174 - 13 - distinction between land-based and sea-based maritime workers. The latter, who owe their allegiance to a vessel and not solely to a land-based employer, are seamen.’ 498 U.S., at 347” 515 U.S. at p. 359. The U.S. Supreme Court further held in the same opinion: “Our LHWCA cases also recognize the converse: Land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA, which expressly provides compensation for injuries to certain workers engaged in ‘maritime employment’ that are incurred ‘upon the navigable waters of the United States.’ 33 U.S.C. § 903(a). Thus, in Director, Office of Workers’ Compensation Programs v. Perini North River Associates, 459 U.S. 297, 103 S.Ct. 634, 74, L.Ed.2d 465 (1983), we held that a worker injured while ‘working on a barge in actual navigable waters’ of the Hudson River, id., at 300, n. 4, 103, S.Ct., at 638, n. 4, could be compensated under the LHWCA, id., at 324, 103 S.Ct., at 651. See also Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 244-245, 62 S.Ct. 221, 222, 86 L.Ed. 184 (1941) (upholding LHWCA coverage for a worker testing *361 outboard motors who ‘was drowned when a motor boat in which he was riding capsized’). These decisions, which reflect our longstanding view of the LHWCA’s scope, indicate that a maritime worker does not become a ‘member of a crew’ as soon as a vessel leaves the dock.” 515 U.S. at pp. 360-361. In this instance, Weaver claims he is assigned to the inland hopper barges he loads at the Bennett’s Lake dock. However, the facts show otherwise. The barges are unmanned. The work he does with them only pertains to the loading operations at the Bennett’s Lake quarry, including handling of soft lines. His job includes longshoring operations, an occupation specifically included in the definition of 33 U.S.C. 902(3). These are not special purpose vessels used in construction or oil and gas exploration. These are traditional cargo carriers. Weaver stays at the quarry while the barges and cargo sail to destinations miles away. He does not make up the wire connections or build tow for commercial transit, because that is not his job. The barges have no motive power. Mr. Weaver has never boarded the motor vessel that moves the tow to Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 13 of 19 PageID #: 175 - 14 - Chattanooga or elsewhere. He is not a member of the crew of the tug. He is not even authorized to set foot on the barges when they are under the control of the tug boat captain. He does not answer to the tug boat captain. His supervisor is on shore. He also has numerous other maintenance duties on shore involving the conveyors which are on land and some are underground. He operates heavy equipment all on shore. If he was assigned to the barges, he would not remain on shore when they sailed. Instead he goes home. He does not eat or sleep on the barges. While falling into one of the enumerated employment categories of the LHWCA (See 33 USC 902(3)), does not automatically preclude Weaver from qualifying as a Jones Act seaman, the actual nature of his work does. As noted by the Supreme Court in Southwest Marine v. Gizoni, coverage under the LHWCA or the Jones Act depends on the nature of the employee’s work rather than job title. 502 U.S. 81 (1991). In Southwest Marine, the U.S. Supreme Court affirmed the decision of the 9 th Circuit finding that there was a question of fact whether an employee was a seaman, where the employee, working as a rigging foreman for a ship repair facility, worked on floating platforms, rode the platforms as they were towed into place, and occasionally served as a lookout and gave maneuvering signals to the tug operator pushing the platform. Id at 83-85. There are no such questions of fact in his case. In contrast to the employee in Southwest Marine, Mr. Weaver has never ridden on a barge as it was moved by a tug, has never served as a lookout for any tugs or helped maneuver any tugs, and has never taken a command from a tug captain. He is not even authorized to come aboard the barges while they are under control of the tug captain. The nature of Mr. Weaver’s employment was land based. Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 14 of 19 PageID #: 176 - 15 - The case law confirms the importance of the distinction between going to sea with the vessel and remaining on land. Numerous cases have rejected claims for seaman remedies by longshoremen and harbor workers who stayed at the dock when their vessel sailed. In Harbor Tug & Barges v. Papai, 520 U.S. 548 (1997), the plaintiff claimed injury when he was painting the tug PT. BARROW. There was no captain onboard. He, like Weaver, reported to a land based supervisor (port captain), not a master or member of the tug’s crew. The court noted his duties precluded seaman status, stating as follows: . . . His actual duty on the PT. BARROW throughout the employment in question did not include any seagoing activity; he was hired for one day to paint the vessel at dockside and he was not going to sail with the vessel after he finished painting it. 520 US at 559. Thus, the U.S. Supreme Court held that the employer was entitled to immunity as a matter of law reinstating the district court’s order granting summary judgment for the employer. In Fazio v. Lykes Bros. Steamship Co., Inc., 567 F. 2d 301 (5 Cir. 1978) summary judgment was granted when plaintiff was a member of a gang who worked on vessels all owned by Lykes and repaired life boats. Fazio, 567 F.2d at 302. Fazio, like Weaver, handled lines, but the plaintiff lived at home, never sailed with the Lykes vessels, and never took a voyage. Id. His supervisor, like Weaver’s supervisor, was based on shore. Id. In rejecting the plaintiff’s argument, the panel noted that his connection to the vessels was transitory. Id at 304. Summary judgment was granted dismissing all claims because Fazio was not a seaman. Id. In Bouvier v. Krenz, 702 F. 2d 89 (5 Cir. 1983), the plaintiffs were the survivors of a rigger employed by Avondale Shipyards who was killed from asbestosis and silicosis. The 5 th Circuit affirmed an order granting Summary judgment dismissing all claims under the Jones Act. The court noted Avondale riggers were shore-based worker who worked their shift at the yard Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 15 of 19 PageID #: 177 - 16 - and went home. They never ate or slept on board the vessel even though their work was performed on vessels. They never went to sea. In White v. Valley Line Company, 736 F. 2d. 304 (5 Cir. 1984), the plaintiff was a fleet man. His duties included washing barges, pumping barges, repairing barges and building tow of hopper barges, but when the barges sailed, White remained at the dock. Weaver’s work involved similar barges but Weaver never pumped or repaired the barges. Weaver never built a tow. White lacked sufficient connection to the barges to be a seaman as a matter of law. He worked on barges at the fleet or on land. He was shore based, like Weaver. The U.S. Fifth Circuit affirmed a motion for summary judgment dismissing his Jones Act claims. In Fox v. Taylor Diving and Salvage, 694 F. 2d 1349 (5 Cir. 1983), the plaintiff’s claim of Jones Act Status was rejected because his connection to the floating oil rig which he repaired in Rotterdam was tenuous. Fox 694 F.2d at 1352-1354. When the rig went out of port, Fox did not sail with the rig. Id at 1352-1353. The district court refused to allow the Jones Act claim to go to the jury and the Fifth Circuit affirmed. With regard to the distinction between sea-based workers who can pursue claims under the Jones Act and land-based workers injured on vessels who have no such remedy, the U.S. Supreme Court in Chandris further stated: In defining the prerequisites for Jones Act coverage, we think it preferable to focus upon 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. The principal formulations employed by the Courts of Appeals--"more or less permanent assignment" or "connection to a vessel that is substantial in terms of its duration and nature"--are simply different ways of getting at the same basic point: the 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." Sieracki, 328 U. S., at 104 (Stone, C. J., Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 16 of 19 PageID #: 178 - 17 - dissenting). Indeed, it is difficult to discern major substantive differences in the language of the two phrases. In our view, "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 (CA5 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. 515 U.S. at pp. 369-370. Weaver was moving a barge into position for loading when he reportedly lost his balance after he stepped on a shackle. He claims the lighting was inadequate. In Levene v. Pintail Enterprises, Inc., 943 F.2d 528 (5th Cir. 1991), a similar claim was made. Levene, a heavy equipment operator/harbor worker untied and was moving a barge when he fell due to lighting, just like Weaver alleges. 943 F.2d at 530. The court rejected the plaintiff’s argument that he could sue under the Jones Act. Id. He, like Weaver, alleged he untied a barge and was moving it at the time he fell, due to the inadequate lighting. Weaver was land based. He worked in the quarry and as a barge loader helper handling lines to facilitate loading. He was not on the tow when it left the safety of Bennett’s Lake and met oncoming currents and traffic in the Tennessee River. He was a land-based maintenance man who also worked as a longshoreman Weaver never sailed with the tugs or barges. His work included land-based mechanical labor. His supervisor, Bob Fiedler, stayed at the quarry. The only barge-related activity he undertook was as a traditional longshoreman “barge loader helper and longshoring operations.” His employment is therefore covered exclusively under the LHWCA. Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 17 of 19 PageID #: 179 - 18 - Weaver seeks to be the first longshore worker since the 1972 amendments to successfully obtain seaman remedies. To do so here would violate the statute and the authorities cited above. V. Immunity 33 USC 905(a) provides that the exclusive remedy of a traditional longshoremen and his spouse against his employer is for Longshore benefits, except if the employer is also a vessel owner. See 33 USC 905(a) and Scindia Steam Navigation Co., Ltd. v. De Los Santos, et al, 451 U.S. 156 (1981). Signal owns no vessels. Signal is immune from all suits under the Jones Act and general maritime law. This court should grant summary judgment dismissing the suit against Signal Mountain Cement Co. under 33 USC 905(a). VI. Sabrina Weaver Sabrina Weaver, wife of Matthew Weaver, has filed a claim for her loss of society under the Jones Act. As noted above, the immunity provided under 33 USC 905(a) confirms that the exclusive liability of an employer is for longshore benefits under Section 4 of the Act and neither the employee nor his wife is entitled to any recovery for loss of society. 33 USC 905(a). Moreover, even if Matthew Weaver were a Jones Act seaman, which is expressly denied, Sabrina Weaver would have no right to assert a claim for loss of society under the Jones Act or general maritime law. Miles v. Apex Marine Corp, 498 U.S. 19 (1990); Michel v. Total Transp., Inc., 957 F.2d 186 (5 Cir. 1992); Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127 (5 Cir. 1992); Lollie v. Brown Marine Service, Inc., 995 F.2d 1565 (11 Cir. 1993); Horsley v. Mobil Oil Corp., 15 F.2d 200 (1 Cir. 1994) Anglada v. Tidewater Corp., 752 F. Supp. 722 (E.D. La. 1990); Breeland v. Western Oceanic, Inc., 755 F. Supp. 718 (W.D. La. 1991); Cater v. Placid Oil Co., 760 F. Supp. 568 (E.D. La. 1991). Case 1:16-cv-00015-SKL Document 37-1 Filed 01/31/17 Page 18 of 19 PageID #: 180 - 19 - For the above and foregoing reasons, summary judgment should be granted, dismissing all claims of Sabrina Weaver and Matthew Weaver, with prejudice, at the cost of Plaintiffs. Respectfully submitted, /s/ David M. Flotte DAVID M. FLOTTE, T.A. (#1364) MARCELLE P. MOULEDOUX (#30339) SALLEY, HITE, MERCER & RESOR, LLC 365 Canal Street – Suite 1710 New Orleans, LA 70130 Tele: (504) 566-8800 Fax: (504) 566-8828 Email: dflotte@shrmlaw.com mmouledoux@shmrlaw.com Attorneys for Defendant, Signal Mountain Cement Company CERTIFICATE OF SERVICE I hereby certify that on the 31st day of January, 2017 I sent the above pleading to all counsel via email. /s/ David M. Flotte DAVID M. 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