Opinion
Civil Action No. 97-3791, Section "N"
July 25, 2000
ORDER AND REASONS
Before the Court is Defendant Deep Delta Contractors, Inc.'s Motion for Summary Judgment. For the following reasons, the Motion is GRANTED.
A. BACKGROUND
This lawsuit arises out of Plaintiff Shawn Gibson's allegation that he was injured while working on a barge, which was adjacent to a jack-up rig on which he was employed. Defendant Deep Delta Contractors, Inc. ("Deep Delta"), Gibson's employer at the time of the alleged injury, now moves for summary judgment on several grounds.
The following facts are undisputed. On November 13, 1995, Deep Delta hired Gibson as a roustabout/rigger. At approximately the same time, Falcon Drilling Company ("Falcon") requested that Deep Delta provide riggers to work on an offshore oil rig. On November 14, 1995 Deep Delta sent four riggers, including Gibson, to the Falcon job, which was scheduled to last three or four days. These riggers were the only Deep Delta employees on the rig and were supervised by Falcon's driller.
Plaintiff's counsel failed to file a statement of material facts as to which there exists a genuine issue. Pursuant to LR 56.2E W, all material facts set forth in Deep Delta's statement of uncontested material facts are deemed admitted.
Gibson alleges that he sustained injuries on November 15, 1995 while working on a deck barge adjacent to the oil rig when a crane lowered a load of pipes onto his left foot. The crane operator was not a Deep Delta employee. On November 16, a crew boat transported Gibson off the rig. The remaining three Deep Delta employees completed their work and were transported off the rig on November 17, 1995.
On December 17, 1995 Gibson worked another job for Deep Delta at the Patterson Rental yards doing drill stem inspections. Gibson has not worked for Deep Delta since.
On December 8, 1997, Gibson filed a Seaman's Complaint in this Court for damages under the Jones Act and the general maritime law. Gibson asserts claims for unseaworthiness and for negligence under the Jones Act and the general maritime law. Deep Delta now moves for summary judgment on all of Gibson's claims.
B. LAW AND ANALYSIS 1. Jones Act Negligence
Deep Delta argues that Gibson cannot recover under the Jones Act for negligence for two reasons. First, Deep Delta argues that Gibson is not a seaman because he did not have a connection to a vessel or to an identifiable group of vessels in navigation that was substantial in both its duration and nature at the time of the alleged injuries. Second, and in the alternative, Deep Delta argues that it cannot be found liable for negligence because its actions were not the proximate cause of Gibson's alleged injuries. Gibson contests both of these arguments.
"The Jones Act provides a cause of action in negligence for `any seaman' injured `in the course of his employment.'" Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 2183, 132 L.Ed.2d 314 (1995) (quoting 46 U.S.C. App. § 688(a)). Thus, a threshold requirement for recovery under the Jones act is that the plaintiff was a "seaman." "The key to seaman status is employment-related connection to a vessel in navigation," which requires that the "employee's duties `contribut[e] to the function of the vessel or to the accomplishment of its mission'. . . ." McDermott Int'l. Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991). Here, Deep Delta concedes for the purposes of argument that Gibson's duties contributed to the function of the oil rig, and instead attacks Gibson's ability to prove his connection to a vessel in navigation.
To recover under the Jones Act, "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. at 2190. "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 bccause 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, 2190-91.
In arguing that Gibson was not a seaman, Deep Delta emphasizes that it was in the business of providing contract labor to various oil field service companies, both offshore and on land. Had Gibson remained in Deep Delta's employ, Deep Delta asserts that he would have worked "various short term jobs on land and over water for various oil field service companies." Although Gibson worked only a few days for Deep Delta, the evidence tends to support this assertion: Gibson was scheduled to work offshore for three to four days on the Falcon job and later worked one day on land at the Patterson job. There is no evidence that Gibson had worked on Falcon's rig previously or would do so in the future, and it is undisputed that Deep Delta did not own, charter or otherwise control the rig, barge, or rental yards where Gibson worked. Thus, Deep Delta asks the Court to conclude that Gibson was not a Jones Act seaman.
Memorandum in Support of Summary Judgment p. 6.
In opposition, Gibson insists that he was a seaman and argues that Deep Delta should not be able to send employees to various jobs and then relieve themselves of all liability for the duration of the job by claiming that the employees are not seamen. As support, Gibson citesBertrand v. International Mooring Marine, Inc., 700 F.2d 240 (5th Cir. 1983), in which a panel of the Fifth Circuit held that a seaman is not necessarily barred from recovery under the Jones Act simply because the "employer neither owns nor controls the several vessels upon which the seaman works." Id. at 245. In Bertrand, the plaintiffs were members of an anchorhandling crew for International Mooring and Marine, Inc. ("IMM"), who were injured in a one-vehicle accident while returning from a one-week relocation job. During that particular job, the crew worked on a vessel that had been chartered not by IMM, but by IMM's client, Tenneco. In contrast, IMM directly chartered the vessels used by its crew on many other jobs. That IMM did not own or control all of the vessels its crew used did not preclude a finding of seaman status because "whether the different vessels were under common ownership or control was determined by the employer, not the nature of the claimants' work." Id. at 245. "In light of the purposes of the Jones Act," the court held, "we will not allow employers to deny Jones Act coverage to seamen by arrangements with third parties regarding the vessel's operation or by the maimer in which work is assigned." Id.
The facts of this case are distinguishable from Bertrand, which has been substantially limited by subsequent precedent. See, e.g., St. Romain v. Industrial Fabrication and Repair Serv., Inc., 203 F.3d 376, 380 (5th Cir. 2000) ("the court in Bertrand was concerned with denying seaman status to anchorhandlers, traditional maritime workers, merely because of the contractual arrangements made by their employer"). Unlike inBertrand, where the employer was able to decide which party provided the crew's vessel, Deep Delta had no control over where its employees worked: if its clients needed work done on an offshore oil rig, its employees were sent to work on the offshore oil rig; if its clients needed work on a land-based rental yard, its employees were sent to the land-based rental yard. In other words, the situs of Gibson's employment depended entirely on "the nature of his work." Thus, Bertrand's concern for devious employment practices is inapposite to the instant case.
Gibson relies on Bertrand for another proposition, namely, that "in the context of a single vessel, the employer need not be the owner or operator of the vessel for Jones Act liability to attach." 700 F.2d at 245. Because he worked on only one vessel during his employment with Deep Delta, Gibson argues that it is irrelevant whether Deep Delta owned or operated that vessel. However, rather than analyzing only a "snapshot" of Gibson's employment, the Court must examine his entire employment history with Deep Delta (no matter how brief it may have been). See Chandris, 515 U.S. at 363. 115 S.Ct. at 2187; Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1075 (5th Cir. 1986) (en banc). Although Falcon's rig was the only vessel on which Gibson worked, all of the evidence indicates that this was a one-time assignment and that Gibson was not assigned to work on any of Falcon's rigs on a continuing or regular basis — it is undisputed that Gibson worked both on land and offshore during his brief employment with Deep Delta, the very nature of whose business suggests that Gibson would have been sent to work on spot assignments for a variety of clients in a variety of locales. Thus, Gibson cannot establish a substantial connection to either a single vessel or to an identifiable fleet of vessels, and summary judgment is appropriate. See St. Romain, 203 F.3d at 379-80; Mungia v. Chevron Co., U.S.A., 768 F.2d 649 (5th Cir. 1985).
Although "it is generally inappropriate to dispose of a seaman status claim on summary judgment," the facts Gibson has admitted and the inferences to be drawn therefrom reasonably support only one conclusion: Gibson was not a seaman. Summary judgment, therefore, is "mandated." St. Romain, 203 F.3d at 378.
Because the Court finds that Gibson was not a Jones Act seaman, it does not reach the issue of whether Deep Delta's actions were the proximate cause of Gibson's alleged injury.
2. General Maritime Law Negligence
Deep Delta next argues that, because it directly employed Gibson at the time of the alleged accident, section 905 of the Longshore and Harbor Worker's Compensation Act, 33 U.S.C. § 905, precludes his general maritime law negligence claim against it. Gibson's Opposition Memorandum does not address this argument, and the case law tends to support Deep Delta's argument. See, e.g., LeBlanc v. Global Marine Drilling Co., 193 F.3d 873, 875, reh'g and reh'g en banc denied, 203 F.3d 826 (5th Cir. 1999), cert. denied sub nom. Frank's Casing Crew Rental Tools, Inc. v. Marine Drilling Mgt. Co., 120 S.Ct. 1831 (2000) (" 33 U.S.C. § 905 (b), provides that an employer shall not be liable for any injury to a covered employee caused by the negligence of a vessel"); Levene v. Pintail Enters., Inc., 943 F.2d 528, 531, reh'g and reh'g en banc denied, 947 F.2d 1489 (5th Cir. 1991), cert. denied, 504 U.S. 940, 112 S.Ct. 2274, 119 L.Ed.2d 201 (1992) ("Under § 904, a covered worker may . . . pursue a tort action against the owner of a vessel for acts of vessel negligence. . . . He may not, however, sue his employer in tort."). Therefore, the Court grants Deep Delta's motion for summary judgment as to this issue.
3. General Maritime Law Unseaworthiness
Finally, Deep Delta argues that, because it did not own, charter or otherwise control Falcon's rig or the deck barge, it had no duty to provide a seaworthy vessel under the general maritime law. Again, Gibson's Opposition Memorandum does not address this argument, and the case law tends to support Deep Delta's argument. See, e.g., Martin v. Walker. Haydel Assocs., Inc., 742 F.2d 246, 249 (owner of vessel owed plaintiff warranty of seaworthiness on that vessel). Therefore, the Court again grants Deep Delta's motion for summary judgment as to this issue.
C. CONCLUSION
Plaintiff Shawn Gibson has failed to come forward with evidence that he had 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; therefore, the Court concludes that Gibson was not a seaman and grants Defendant Deep Delta's motion for summary judgment with respect to Gibson's Jones Act claims. The Court also grants Deep Delta's motion for summary judgment with respect to Gibson's general maritime law negligence and unseaworthiness claims because the case law supports Deep Delta's arguments and because Gibson failed to oppose Deep Delta's motion in these respects. Accordingly,
IT IS ORDERED that Deep Delta Contractors, Inc.'s Motion for Summary Judgment is GRANTED.