Dufrene v. Hospitality Enterprises, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DALTON DUFRENE CIVIL ACTION

VERSUS NO. 19-13748

HOSPITALITY ENTERPRISES, INC. SECTION “R” (4)

ET AL.

ORDER AND REASONS

Before the Court is defendant New Orleans Paddlewheels, Inc.’s

motion for summary judgment.1 Plaintiff Dalton Dufrene opposes the

motion.2 The Court grants defendant’s motion in part, dismissing plaintiff’s

claims under the Jones Act, general maritime law, and Louisiana law. The

Court denies defendant’s motion as to plaintiff’s negligence claim under

§ 905(b) of the Longshoremen and Harbor Workers Compensation Act, 33

U.S.C. § 901, et seq. (“LHWCA”).

1 R. Doc. 17.

2 R. Doc. 27.

I. BACKGROUND

This case arises from injuries that Dufrene allegedly suffered while

working aboard the RIVERBOAT LOUIS ARMSTRONG. According to

marketing material that plaintiff submitted with his response to defendant’s

motion, the LOUIS ARMSTRONG is a “music and event venue”3 with a

capacity of up to 3,000 people.4 The LOUIS ARMSTRONG’s pilot, Paul

Keller, attests in an affidavit that he began working on the vessel in 1997.5

According to Keller, at that time, the ship was named the CITY OF

EVANSVILLE, and it operated as a floating casino in Evansville, Indiana.6

Keller states that, from 1997 to 2002, the CITY OF EVANSVILLE navigated

daily on the Ohio River, as required by Indiana law for a casino.7 Keller

attests that, in 2002, Indiana law changed such that casinos were no longer

required to navigate.8 From that point on, the CITY OF EVANSVILLE was

continuously moored to its dock, and it ceased navigation activities.9

New Orleans Paddlewheels, Inc. (“NOP”) purchased the CITY OF

EVANSVILLE on October 30, 2017, according to an affidavit by Craig Smith,

3 R. Doc. 27-14 at 1.

4 R. Doc. 27-11 at 1; R. Doc. 27-12 at 1.

5 R. Doc. 17-2 at ¶ 2.

6 Id. at ¶ 2-5.

7 Id. at 1, ¶ 5.

8 Id. at 2, ¶ 6.

9 Id. at ¶ 7.

NOP’s director of marine operations.10 Smith attests that, after some

modifications to prepare the ship for towage, the CITY OF EVANSVILLE was

brought to Conrad Industries in Amelia, Louisiana.11 At Conrad Industries,

the ship was, “completely gutted.”12 During this time, NOP also changed the

vessel’s name to the RIVERBOAT LOUIS ARMSTRONG.13 The LOUIS

ARMSTRONG was moved again in October 2018 for further renovation

work.14 Finally, in July 2019, it was towed to the Orange Street Wharf on the

east bank of the Mississippi River in New Orleans, Louisiana, where it

remained continuously moored, and underwent final renovations.15

Plaintiff began working aboard the LOUIS ARMSTRONG on August 6,

2019.16 On September 10, 2019, plaintiff allegedly fell from a ladder and

injured his lower back.17 He filed this lawsuit on November 11, 2019, alleging

five claims: (1) negligence under the Jones Act, 46 U.S.C. § 30101;18 (2)

unseaworthiness under general maritime law;19 (3) maintenance and cure

10 R. Doc. 17-3 at 1, ¶ 3.

11 Id. at 2, ¶ 6.

12 Id. at ¶ 9.

13 R. Doc. 17-2 at 3, ¶ 17.

14 R. Doc. 17-3 at 2, ¶ 10.

15 Id. at ¶¶ 12-13.

16 Id. at ¶ 14.

17 R. Doc. 1 at 2-3, ¶¶ 7-10.

18 Id. at 4, ¶¶ 16-17.

19 Id. at 4-5, ¶¶18-19.

under general maritime law;20 (4) negligence under the LHWCA, 33 U.S.C. §

905(b);21 and (5) negligence under the Louisiana Civil Code articles 2315,

2317, and 2317.1.22

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

20 Id. at 5, ¶¶ 20-24.

21 Id. at 5-6, ¶¶ 25-27.

22 Id. at 6-7, ¶¶ 28-34.

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp.

948, 951 (D. Colo. 1991)). The nonmoving party can then defeat the motion

by either countering with evidence sufficient to demonstrate the “existence

of a genuine dispute of material fact,” or by “showing that the moving party's

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘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.’” (quoting Celotex, 477 U.S. at 322

(emphasis added))).

III. DISCUSSION

A. Jones Act Claim and Claims Under General Maritime

Law

Plaintiff must show that he is a “seaman” to succeed on his claims

under the Jones Act and general maritime law. Chandris, Inc. v. Latsis, 515

U.S. 347, 354 (1995). Although the term “seaman” is not defined in the Jones

Act, the Supreme Court has explained that “Congress intended the term to

have its established meaning under the general maritime law at the time the

Jones Act was enacted.” Id. at 355. To qualify as a seaman, an employee

must show (1) that his duties contributed to the function of a vessel or the

accomplishment of its mission; and (2) that he had “a connection to a vessel

in navigation (or to an identifiable group of vessels) that is substantial in

terms of both its duration and its nature.” Id. at 368. The purpose of this

test 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.”

Id.

Whether an individual is a seaman is “ordinarily a question of fact for

the jury.” Ellender v. Kiva Constr. & Eng’g, Inc., 909 F.2d 803, 805 (5th Cir.

1990). But “summary judgment may be appropriate where ‘the facts

establish the lack of seaman status beyond a question as a matter of law’ and

no reasonable evidentiary basis exists to support a jury finding that the

injured person is a seaman.” Id. at 805-06 (quoting Barrett v. Chevron

U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986)); see also Chandris, 515 U.S.

at 371 (explaining that summary judgment is warranted “where undisputed

facts reveal that a maritime worker has a clearly inadequate temporal

connection to vessels in navigation”).

Defendant contends that Dufrene was not a seaman because the

LOUIS ARMSTRONG was not a “vessel in navigation.”23 As the Fifth Circuit

23 R. Doc. 17-1 at 1.

has defined it, the term “in navigation” means “engaged” as “an instrument

of commerce and transportation on navigable waters.” Williams v. Avondale

Shipyards, Inc., 452 F.2d 955, 958 (5th Cir. 1971) (citations omitted).

1. Status of the CITY OF EVANSVILLE

Defendant argues that the CITY OF EVANSVILLE was withdrawn from

navigation in 2002, and it remained out-of-navigation for the remainder of

the time that it operated as a “stationary, floating casino.”24 In Pavone v.

Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995), the

Fifth Circuit held that the BILOXI BELLE, a “floating dockside casino” was

not a vessel. In reaching that conclusion, the Fifth Circuit rejected the

application of the “classical maritime methodology for determining, on the

basis of a watercraft’s unique physical and functional attributes,” whether a

craft is a “vessel.” Id. at 568. Instead, it concluded that the BILOXI BELLE

was not a vessel because it was both (1) “withdrawn from navigation” and (2)

“a work platform.” Id. at 570.

As the Pavone court explained, the “withdrawn from navigation”

concept is used to distinguish “craft or structures that meet the general

dictionary definition of ‘vessel’ from those that meet” the requirements

under the Jones Act or general maritime law. Id. at 569. For example, a craft

24 R. Doc. 17-2 at 3, ¶ 14.

that has been “laid up for winter” is withdrawn from navigation, and

therefore not a vessel. Id. (citing Desper v. Starved Rock Ferry Co., 342 U.S.

187, 191 (1952)).

The Fifth Circuit considered a different stationary, floating casino—the

TREASURE CHEST—in Martin v. Boyd Gaming Corp, 374 F.3d 375 (5th

Cir. 2004). Unlike the BILOXI BELLE, the TREASURE CHEST had been

constructed as a cruising casino vessel and had sailed on Lake Pontchartrain

for six years until the Louisiana Legislature abolished the cruising

requirement for riverboat casinos. Id. at 376-77. The Fifth Circuit found that

Pavone controlled. Id. at 376. The court held that “once the TREASURE

CHEST was withdrawn from navigation so that transporting passengers,

cargo[,] or equipment on navigable water was no longer an important part of

the business in which the craft was engaged, the craft was not a vessel.” Id.

at 377.

In Stewart v. Dutra Construction Co., 543 U.S. 481, 496 (2005), the

U.S. Supreme Court also recognized that vessels could be withdrawn from

navigation—thereby losing their vessel status. It stated:

A ship and its crew do not move in and out of Jones Act coverage

depending on whether the ship is at anchor, docked for loading

or unloading, or berthed for minor repairs, in the same way that

ships taken permanently out of the water as a practical matter

do not remain vessels merely because of the remote possibility

that they may one day set sail again.

Id. at 494 (emphasis added). The Court cited Pavone with approval for the

proposition—set out in a parenthetical—that a “floating casino was no longer

a vessel where it ‘was moored to the shore in a semi-permanent or indefinite

manner.’” Id. (quoting Pavone, 52 F.3d at 570).

Under the weight of authority, the CITY OF EVANSVILLE was not a

vessel when it operated as a stationary, floating casino. Much like the

TREASURE CHEST in Martin, the CITY OF EVANSVILLE was “withdrawn

from navigation” when “transporting passengers, cargo[,] or equipment on

navigable water was no longer an important part” of its business. 374 F.3d

at 377. Defendant submitted uncontroverted evidence that the CITY OF

EVANSVILLE stopped transporting passengers, cargo, or equipment in

2002, and remained permanently moored to its dock until 2017.25 The Court

finds as a matter of law that the CITY OF EVANSVILLE was not a vessel in

navigation during this period.

2. Status of the RIVERBOAT LOUIS ARMSTRONG

After NOP purchased the CITY OF EVANSVILLE in October 2017, it

renamed it the LOUIS ARMSTRONG and began a project—at a cost of nearly

$13,000,000—of reconstructing and repurposing the ship as an

25 R. Doc. 17-4 at 2-3, ¶¶ 7-14

“entertainment and music venue.”26 Keller attests that “from August 2002

through September 10, 2019, the [LOUIS ARMSTRONG] did not navigate on

the water with passengers.”27 The question here is whether, under these

circumstances, the LOUIS ARMSTRONG regained its status as a “vessel in

navigation” by the date of plaintiff’s injury on September 10, 2019.

i. Repairs

In Chandris, 515 U.S. at 72-76, the Supreme Court discussed the “in

navigation” requirement and found that repairs may “become sufficiently

significant that [a] vessel can no longer be considered in navigation.” “[I]n

such cases, ‘the focus should be upon the status of the ship, the pattern of the

repairs, and the extensive nature of the work contracted to be done.” Id. The

“general rule” is that “vessels undergoing repairs or spending a relatively

short period of time in drydock are still considered to be ‘in navigation’

whereas ships being transformed through ‘major’ overhauls or renovations

are not.” Id. (citing Edward M. Bull III, Seaman Status Revisited: A

Practical Guide to Status Determination, 6 U.S.F. Mar. L.J. 547, 582-84

(1994)).

26 R. Doc. 17-3 at 1, ¶ 2.

27 R. Doc. 17-2 at 4, ¶ 24.

In Chandris, the ship at issue was in drydock for six months

undergoing “significant” modifications, including repairs to its bottom plates

and propellers, the addition of bow thrusters, an overhaul of its engines,

reconstruction of its boilers, and renovations to its interior. Id. at 374-75.

The Court noted that “it is possible that [defendant] could be entitled to

partial summary judgment or a directed verdict concerning whether the

[ship] remained in navigation while in drydock.” Id. at 375. But the district

court had no stipulations or made findings as to whether the ship was “in

navigation,” so the Supreme Court held that the district court erred when it

instructed the jury not to consider the period the ship was in the drydock.

Id.

The Court in Chandris pointed to the Fifth Circuit’s decision in Wixom

v. Boland Marine & Manufacturing Co., 614 F.2d 956 (5th Cir. 1980), as an

example of repairs that may take a ship out of navigation. 515 U.S. at 375.

In Wixom, a ship underwent “major structural changes,” including the

“addition of a section to the deckhouse and of a forward mast.” Wixom, 614

F.2d at 957. During the repairs, the ship’s engine and propellors were out of

service for at least some of the time, the cost of the project exceeded

$25,000,000, and it lasted for three years. Id. On these facts, the Fifth

Circuit held that the district court was entitled to conclude that the ship “was

not ‘in navigation’ as a matter of law.” Id.

Here, defendant’s affiants, Keller and Smith, attest that the LOUIS

ARMSTRONG underwent the sort of “major structural changes” that take a

vessel out of navigation.28 Id. Smith attests that NOP purchased the CITY

OF EVANSVILLE for $395,000.00, and paid $12,943,135.93 to convert the

ship from a floating casino into a “music and entertainment venue.”29

According to Keller and Smith, after NOP purchased the CITY OF

EVANSVILLE, it removed the ship’s radar scanner, radio antennas, and

smokestacks for towing to Louisiana.30 Keller and Smith state that the

LOUIS ARMSTRONG was “completely gutted” between November 2017 and

October 2018 at Conrad Industries in Amelia, Louisiana.31 They also state

that Conrad redid the LOUIS ARMSTRONG’s interior, refurbished its

electrical, electronic, air conditioning, and ventilation systems, and

completely reconditioned its engines, bow thrusters, propellers, and

generators.32 Next, Keller and Smith attest that the LOUIS ARMSTRONG

was towed in October 2018 to the Buck Kreihs Repair Facility in Algiers,

28 R. Doc. 17-2 at 3-5, ¶¶ 17-24; R. Doc. 17-3 at 2-3, ¶¶ 6-13.

29 R. Doc. 17-3 at 1-2, ¶¶ 3, 8.

30 R. Doc. 17-2 at 3, ¶ 17; R. Doc. 17-3 at 2, ¶ 6.

31 R. Doc. 17-2 at 3, ¶ 20; R. Doc. 17-3 at 2, ¶ 9.

32 R. Doc. 17-2 at 3, ¶ 20; R. Doc. 17-3 at 2, ¶ 9.

Louisiana, “for additional renovation work.”33 Finally, in July 2019, the

LOUIS ARMSTRONG was towed to the Orange Street Wharf in New Orleans,

where it “did not at any time leave its moorings, and spent the entire time

undergoing continued reconstruction work.”34 Under these circumstances,

the Court finds that the work done to the LOUIS ARMSTRONG was

“sufficiently significant” as to prevent the ship from being considered a

“vessel in navigation.” Chandris, 515 U.S. at 374.

ii. Reentering Navigation

Plaintiff argues that the LOUIS ARMSTRONG regained its vessel

status by the date of plaintiff’s injury because, he asserts, the LOUIS

ARMSTRONG was capable of navigation as of September 10, 2019.35 In

essence, plaintiff argues that, by the time the LOUIS ARMSTRONG reached

the Orange Street Wharf, all navigation-essential equipment had been

installed, and the Court should accordingly find the LOUIS ARMSTRONG to

be a “vessel in navigation.”36 Plaintiff points to Keller’s deposition testimony,

in which he states that the LOUIS ARMSTRONG could have “pushed up or

down” the Mississippi River,37 and the statement in Keller’s affidavit that the

33 R. Doc. 17-2 at 4, ¶ 21; R. Doc. 17-3 at 2, ¶ 10.

34 R. Doc. 17-2 at 4, ¶ 22-23; R. Doc. 17-3 at 3, ¶¶ 13-14.

35 R. Doc. 27 at 5.

36 Id. at 5-12.

37 R. Doc. 27-1 at 18 (Keller Deposition at 95:8-9).

work being done at the Orange Street Wharf “includ[ed] cleaning and

making final renovations.”38

Plaintiff argues39 that determination of the LOUIS ARMSTRONG’s

vessel status is controlled by the Supreme Court’s statement in Stewart that

“[t]he question [of vessel status] remains in all cases whether the watercraft’s

use ‘as a means of transportation on water’ is a practical possibility or merely

a theoretical one.” 543 U.S. at 496. Plaintiff also relies on the Supreme

Court’s decision in Lozman v. City of Riviera Beach, 568 U.S. 115, 121 (2013),

in which the Court held that a houseboat was not a “vessel.” In Lozman, the

Court clarified the “practicality” standard set out in Stewart, and stated that

a structure is not a vessel “unless a reasonable observer, looking to the

home’s physical characteristics and activities, would consider it designed to

a practical degree for carrying people or things over water.” Id.

Both Stewart and Lozman involved a determination of whether an

unconventional watercraft that is engaged in its intended use on the water

qualifies as a vessel. The craft at issue in Stewart, the SUPER SCOOP was

the world’s largest dredge. 543 U.S. at 484. Although the SUPER SCOOP

ordinarily moved with the assistance of a tugboat, it could navigate short

38 R. Doc. 17-2 at 4, ¶ 26.

39 R. Doc. 27 at 4-5.

distances by manipulating a series of anchors and cables. Id. In Lozman,

the structure at issue was a “60-foot by 12-foot floating home.” 568 U.S. at

118. It had no rudder or other steering mechanism, obtained electricity by

connecting to land-based outlets, and lacked a means of self-propulsion. Id.

at 122. While the Supreme Court found that the SUPER SCOOP was a vessel,

it found that the houseboat in Lozman was not. Stewart, 543 U.S. at 484;

Lozman, 568 U.S. at 118.

This case does not involve the question of whether an unconventional

vessel is a “vessel in navigation.” And plaintiff has not pointed to authority

in which a court has applied the Stewart and Lozman tests for vessel status

to answer the question presented here: whether a ship that was withdrawn

from navigation has reentered navigation. The most analogous authority on

this issue is Cain v. Transocean Offshore USA, Inc., 518 F.3d 295 (5th Cir.

2008), which involved a determination of when a newly constructed vessel

becomes a vessel in navigation. Because the LOUIS ARMSTRONG was

essentially reconstructed to serve a new purpose, the Court finds the Cain

analysis particularly apt. See McKinley v. All Alaskan Seafoods, Inc., 980

F.2d 567, 571 (9th Cir. 1992) (finding that a case involving a drilling rig hull

that was converted to a seafood processing ship was “more analogous to new

construction than repair or overhaul”).

In Cain, the Fifth Circuit reaffirmed its longstanding precedent that an

“incomplete watercraft” is not a “vessel in navigation” for purposes of the

Jones Act. 518 F.3d at 303; see also Williams, 452 F.2d at 958 (holding that

“an incompleted vessel not yet delivered by the builder is not” a vessel in

navigation). This “vessel under construction” doctrine has been recognized

in other circuits, see Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F.2d

14, 15-16 (11th Cir. 1987); Frankel v. Bethlehem-Fairfield Shipyard, 132 F.2d

634, 635-36 (4th Cir. 1942), but it has not yet been addressed by the Supreme

Court. In Cain, the Fifth Circuit summarized its “established precedent” on

“crafts that are under construction” as follows:

We have long held that the Jones Act analysis requires a

watercraft to be “in navigation,” and we have drawn a distinction

between completed crafts and crafts that are under construction.

A maritime worker “assisting in the building and ultimate

commissioning of a launched but uncompleted vessel floating or

maneuvering in navigable waters is not a seaman within the

meaning of the Jones Act, because his vessel is not yet an

instrumentality of commerce—private or public—and is

therefore not ‘in navigation.’”

518 F.3d at 298 (quoting Williams, 452 F.2d at 958).

Under this precedent, the Court considered the seaman status of a

worker aboard the CAJUN EXPRESS, a semi-submersible offshore drilling

rig. In March 2001, the plaintiff in Cain had been assigned to work on the

CAJUN EXPRESS while it was under construction in Singapore. Id. at 296.

The CAJUN EXPRESS underwent sea trials in the first half of 2000 and then

was towed from Singapore to Grande Isle, Louisiana. Id. at 297. After

arriving in the Gulf of Mexico, the CAJUN EXPRESS was moored in a

“floating shipyard” to complete construction. Id. At that point, the rig was

“capable of self-propulsion,” but it “was not fully capable of operating as a

semi-submersible drilling rig.” Id. The plaintiff suffered an injury aboard

the CAJUN EXPRESS on September 10, 2000, and the vessel was completed

in April or May 2001. Id.

The court found that the CAJUN EXPRESS was still under

construction at the time plaintiff suffered his injury. Id. at 299. Even though

the craft “was capable of self-propulsion” and had even “run some test pipe,

it lacked vital equipment to make it fully operational as an oil and gas

drilling rig.” Id. (emphasis added). The court found that, “under established

Fifth Circuit precedent, the CAJUN EXPRESS was not a vessel in navigation

and [plaintiff] was not a Jones Act seaman.” Id.

Notably, the Fifth Circuit expressly held that the Supreme Court’s

Stewart decision had no effect on its analysis. Id. at 300. The Fifth Circuit

read “Stewart’s instruction that a craft is a vessel if it is capable of marine

transportation” as limited to the context of that case. Id. The Cain court

explained that “Stewart stressed that the in navigation requirement

. . . meant that ‘structures may lose their character as vessels if they have

been withdrawn from the water for extended periods of time.’” Id. (quoting

Stewart, 543 U.S. at 496). And the Fifth Circuit conversely stated that “a

structure may not attain vessel status before it is ever put into ‘navigation.’”

Id.

The Cain court found this conclusion—that crafts under construction

are not vessels—consistent with policy goals and to prevent oscillation in and

out of Jones Act coverage. Id. at 301-02. First, shipbuilders often begin

construction at one location, then transport the partially finished structure

to a different location to complete construction. Id. at 302. Depending on

their connection to the ship, the land-based shipbuilders working on these

“vessels-to-be” could be transformed into Jones Act seamen under Stewart’s

practically-capable-of-navigation test. Id. At least, such cases would require

fact-intensive analyses into the relationship between the shipbuilders and

the ship, disserving the interest of employers, insurers, and employees in

predicting whether the Jones Act will cover them on a given workday. Id. at

302 (quoting Chandris, 515 U.S. at 363). Second, there are numerous stages

of construction where a ship is arguably “practically capable” of

transportation, i.e., a vessel under Stewart. Id. The Fifth Circuit’s test draws

a bright line, preventing uncertainty in the analysis. Id.

Regarding the CAJUN EXPRESS, the Fifth Circuit found that the craft

was still under construction because it was not yet fit for duty to serve its

intended purpose as a drilling rig. Id. at 302-03. Rejecting the application

of the Stewart test, the court stated that “[i]t strains reason to say that a craft

upon the water that is under construction and is not fit for service is

practically capable of transportation.” Id. at 302. Moreover, the CAJUN

EXPRESS had not yet received its Coast Guard Certificate of Inspection

(“COI”). Id. at 302-03. The Court noted that, although lack of a COI is not

dispositive for non-vessel status, to hold that the CAJUN EXPRESS was a

vessel would mean that a ship that is not legally permitted to operate is

“practically, rather than theoretically, capable of transportation.” Id. at 303

& n.1.

The Court finds that Cain’s reasoning applies with equal force to the

LOUIS ARMSTRONG which, although not newly constructed, was a vessel

undergoing reconstruction and conversion to a different use. The Ninth

Circuit reached a similar conclusion in McKinley v. All Alaskan Seafoods,

Inc., 980 F.2d at 571. In McKinley, the Ninth Circuit differentiated between

cases in which a ship undergoes “mere repair” and those involving

“conversion.” Id. The craft at issue in McKinley was a drilling rig hull valued

at $451,000 in which the defendant had invested $14,082,000 to convert it

to a seafood processing ship. Id. Based on the difference in the value of the

hull and the cost of the work, the court found that the case was “more

analogous to new construction than repair or overhaul.” Id. As such, it held

that the “pivotal question” was whether the ship “had been placed in

commerce for its intended use.” Id. Here, the LOUIS ARMSTRONG was a

n0n-vessel floating casino ship for 15 years before NOP purchased it for

$395,000.00.40 NOP has expended $12,943,135.93 to convert the ship into

a “music and entertainment venue.”41 Similar to the ship in McKinley, the

Court finds that the LOUIS ARMSTRONG is analogous to a newly

constructed vessel, rather than a vessel undergoing mere repairs. Id. at 571.

Moreover, just as Cain recognized that applying the “capable of

navigation” test in the context of newly constructed vessels raises concerns

that a craft may oscillate in and out of navigation, the same is true here with

the LOUIS ARMSTRONG. Like a new vessel, the LOUIS ARMSTRONG was

moved from location to location at various stages of completion. Cf. Cain,

518 F.3d at 303. Additionally, the Fifth Circuit’s concern that construction

workers aboard vessels-under-construction might be classified as Jones Act

40 R. Doc. 17-3 at 1, ¶ 3.

41 Id. at 2, ¶ 8.

seamen is particularly relevant here because plaintiff acknowledged that he

came across such workers on a daily basis.42 Cf. id.

Applying Cain here, the Court finds that the LOUIS ARMSTRONG was

not a “vessel in navigation.” Defendant’s affiants attest that construction

aboard the LOUIS ARMSTRONG was ongoing at the time of plaintiff’s

injury.43 Indeed, plaintiff himself admitted at his deposition that he

encountered construction workers daily in the course of his job.44 The

ongoing nature of the construction work indicates that the LOUIS

ARMSTRONG was not yet ready to serve its intended purpose as an

“entertainment and music venue.”45 Despite plaintiff’s arguments that the

LOUIS ARMSTRONG was capable of “push[ing] up or down”46 the

Mississippi River, plaintiff has introduced no evidence showing that the

LOUIS ARMSTRONG was actually capable of serving its intended purpose

as of September 10, 2019.

Moreover, Keller47 and Smith48 attest that, like the CAJUN EXPRESS

in Cain, the LOUIS ARMSTRONG had not yet received its COI and was

42 R. Doc. 17-4 at 10 (Dufrene Deposition at 163:1-19).

43 R. Doc. 17-2 at 4, ¶ 23; R. Doc. 17-3 at 3, ¶ 13.

44 R. Doc. 17-4 at 10 (Dufrene Deposition at 163:1-19).

45 R. Doc. 17-3 at 1, ¶ 2.

46 R. Doc. 27-1 at 18 (Keller Deposition at 95:8-9).

47 R. Doc. 17-2 at 5, ¶ 25.

48 R. Doc. 17-3 at 3, ¶ 15.

therefore not legally permitted to operate. Cf. id. at 303; see 46 U.S.C.

§ 3311(1) (stating that “a vessel subject to inspection . . . may not be operated

without having on board a certificate of inspection”). Because of the ongoing

construction work aboard the LOUIS ARMSTRONG, that plaintiff has not

shown that the LOUIS ARMSTRONG was yet capable of serving its intended

purpose, and the lack of a COI, the Court finds that plaintiff has failed to

create an issue of fact as to whether the LOUIS ARMSTRONG was a “vessel

in navigation” at the time of his injury. Consequently, the Court finds that

plaintiff has failed to create a triable issue of fact on the question of whether

he is a seaman. The Court must dismiss plaintiff’s claims under the Jones

Act and general maritime law.

B. LHWCA Claim

The LHWCA covers injuries of workers who meet the Act’s “status” and

“situs” requirements. See New Orleans Depot Servs. v. Dir., Office of

Worker’s Comp. Programs, 718 F.3d 384, 389 (5th Cir. 2013). The “situs”

test requires that the injury occur on the “navigable waters of the United

States” and “any adjoining pier, wharf, dry dock, terminal, building way,

marine railway, or other adjoining area customarily used by an employer in

loading, unloading, repairing, dismantling, or building a vessel.” 33 U.S.C.

§ 903(a). The “status” requirement limits application of the LHWCA to

“traditional maritime occupations.” New Orleans Depot Servs., 718 F.3d at

389; see 33 U.S.C. § 902(3) (defining “employee” as “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” (emphasis added)).

There is no dispute that plaintiff’s injury occurred on a covered situs—

the Mississippi River. Nor is there any dispute that plaintiff was “engaged in

maritime employment,” i.e., was a covered employee under the LHWCA. See

33 U.S.C. § 902(3). Instead, the dispute in this case surrounds whether

plaintiff is entitled to bring a claim for negligence under § 905(b) of the Act.

Section 905(b) gives an injured worker a third-party negligence claim against

a vessel causing injury. Id. § 905(b). But § 905(b) excludes injured

employees from bringing such negligence claims when they “w[ere]

employed to provide shipbuilding, repairing, or breaking services and such

person’s employer was the owner . . . of the vessel.” Id.

Notably, the exclusion does not apply to all covered workers under the

LHWCA. Gay v. Barge 266, 915 F.2d 1007, 1010 (5th Cir. 1990) (Rubin, J.).

The bar in § 905(b) applies to the “specific occupations listed: shipbuilders,

ship repairers[,] and ship breakers.” Id. Congress did not “foreclose suits by

all covered employees against employer-shipowners.” Id. To determine

whether the § 905(b) exclusion applies, a court should not “look only at what

the employee was doing at the moment he was injured.” Id. Instead, to

determine whether an employee is a ship repairer, a court must examine two

factors: (1) “whether the employee ‘regularly performs some portion of what

is indisputably [ship-repair] work;’” or (2) whether the employee “has been

assigned for an appreciable period of time to do ‘substantial [ship-repair]

work . . . even though his assignment to it is not ‘permanent.’” Id. The first

element is a “question of applying the law to the facts,” and the second is a

“pure question of fact.” Id. at 1011. In Gay, the district court found as a

matter of law that an employee was a ship repairer where, from “time to

time” he “pump[ed] out barges.” Id. at 1008, 1011. The Fifth Circuit

reversed, finding (1) that a reasonable jury could have concluded that

pumping out barges was not “repair” work, and (2) that there was no

evidence that the plaintiff “regularly” pumped water from barges. Id.

NOP argues that plaintiff is a ship repairer because, at his deposition,

he admitted that every day he “clean[ed] up some of the mess” that the

construction workers made.49 Under Gay, the Court must apply the law to

the facts to determine whether plaintiff’s cleaning was “indisputably [ship-

repair] work.” 915 F.2d at 1010-11. The Court notes that some types of

49 R. Doc. 17-4 at 10 (Dufrene Deposition at 163:1-19).

cleaning may “indisputably” be ship-repair work. See 29 C.F.R. § 1915.4(j)

(stating that under regulations promulgated by the Occupational Safety and

Health Standards Administration, “ship repair” includes “cleaning”). But the

Court cannot say, based on the evidence presented here, that plaintiff’s

cleaning was “indisputably” ship-repair work. At plaintiff’s deposition, he

testified that his work consisted of “[b]asic deckhand jobs,” including

“[c]leaning, keeping up with the boat, making sure that it was ready for

passengers, . . . [that the] life jackets were up to par [and], mak[ing] sure

[that the] ropes were tight.”50 He also states that he did other tasks at Keller’s

orders, including “maintenance, changing lights, . . . pressure washing [outer

decks,] and washing [and] cleaning.”51 Plaintiff testified that, though he saw

the construction workers, he never actually worked with or assisted them.52

He did, however, regularly “clean up some of the mess” that the construction

workers made.”53 Significantly, NOP retained separate ship-repair

companies, Ryals Commercial Construction and Buck Kreihs, to complete

the construction work while the LOUIS ARMSTRONG was docked at the

Orange Street Wharf.54 Plaintiff was employed by NOP, not one of these

50 R. Doc. 17-4 at 8 (Dufrene Deposition at 139:16-21).

51 Id. (Dufrene Deposition at 139:21-24).

52 Id. at 10 (Dufrene Deposition at 163:1-14).

53 Id. (Dufrene Deposition at 163:15-19).

54 R. Doc. 17-3 at 3, ¶13.

repair companies.55 Thus, plaintiff was not part of the regular compliment

of workers that the ship repair companies provided to repair and clean the

LOUIS ARMSTRONG. Nor does the evidence show that, although not

employed by those companies, he worked under their direction, or spent a

significant portion of his time working in tandem with them. Based on this

evidence, the Court finds that a reasonable jury could conclude that plaintiff

was not a “ship repairer” under the meaning of 33 U.S.C. § 902(3). See Gay,

915 F.2d at 1011.

In effect, defendant argues that any employee who cleans up after

construction workers is per se a ship repairer. Defendant cites no authority

that supports its position. Instead, defendant relies solely on Ducrepont v.

Baton Rouge Marine Enterprises, Inc., 666 F. Supp. 882 (E.D. La. 1987),

aff’d, 877 F.2d 393 (5th Cir. 1989), a non-binding decision. In Ducrepont,

the defendant was a shipyard business that engaged in “cleaning, repairing[,]

and fleeting barges.” Id. at 883. The plaintiff, one of defendant’s employees,

was injured while working aboard one of the defendant’s barges. Id. at 883-

84. As a supervisor, plaintiff’s job included “overseeing the cleaning and

repair activities conducted by the defendant.” Id. At the district court,

plaintiff argued that § 905(b) creates a distinction between cleaning and

55 Id. at ¶ 14.

repairing services, and that the exclusion for ship repairers did not apply in

his capacity a cleaner. Id. at 889. The district court rejected this argument,

finding that, on the evidence presented, the cleaning services that defendant

performed were ancillary to its repair services. Id. Thus, the plaintiff could

not avoid the § 905(b) bar. Id. at 890.

Unlike the defendant in Ducrepont, NOP is a riverboat cruise operator,

not a shipyard.56 Although there is some evidence that plaintiff cleaned up

after construction workers,57 plaintiff testified that his job duties included

“[b]asic deckhand jobs,” none of which was related to the repair work being

done by separate companies on the LOUIS ARMSTRONG.58 Ducrepont is

distinguishable, and does not alter the Court’s conclusion that issues of fact

remain as to whether § 905(b) bars plaintiff’s negligence claim. The Court

must deny defendant’s motion for summary judgment on this claim.

C. Louisiana State Law Negligence Claims

Plaintiff’s claims for negligence under Louisiana law are subject to the

exclusivity provisions of the LHWCA. Section 905(a) of the LHWCA

provides that “[t]he liability of an employer prescribed in section 904 of this

title shall be exclusive and in place of all other liability of such employer to

56 See R. Doc. 17-3 at 1, ¶ 4.

57 R. Doc. 17-4 at 10 (Dufrene Deposition at 163:1-19).

58 Id. at 8-9 (Dufrene Deposition at 139:16-140:4).

the employee.” 33 U.S.C. § 905(a). Because NOP is plaintiff's employer, the

LHWCA’s remedy is exclusive. See Norfolk Shipbuilding & Drydock Corp.

v. Garris, 532 U.S. 811, 818 (stating that the LHWCA expressly preempts all

claims against an employer or a vessel except for those provided under the

Act). The Court must dismiss plaintiffs claims for negligence under

Louisiana law.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendant’s motion IN

PART. Plaintiffs claims under the Jones Act, general maritime law, and

Louisiana law are DISMISSED. As to plaintiffs claims under § 905(b) of the

LHWCA, defendant’s motion is DENIED.

New Orleans, Louisiana, this _3rd__ day of March, 2021.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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