The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRYL COLE CIVIL ACTION
VERSUS NO. 21-1348
OCEANEERING INTERNATIONAL, INC. SECTION: D (5)
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment, filed by
defendant, Oceaneering International, Inc. (“Oceaneering”).1 Plaintiff, Daryl Cole,
opposes the Motion,2 and Oceaneering has filed a Reply.3
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is GRANTED and Cole’s Jones Act claims asserted against
Oceaneering are DISMISSED WITH PREJUDICE.
I. FACTUAL AND PROCEDURAL BACKGROUND4
In this maritime personal injury case, the issue before the Court is whether
Cole is a Jones Act seaman. Pertinent to the instant Motion, Daryl Cole alleges that
while working as a crane operator aboard the M/V OCEAN PATRIOT, which was
owned and operated by Oceaneering, he suffered a stroke that was misdiagnosed by
the onboard medic.5 Cole filed this suit against Oceaneering, asserting claims for
1 R. Doc. 45.
2 R. Doc. 58.
3 R. Doc. 80.
4 The factual background of this case was extensively detailed in the Court’s March 31, 2023 Order
and Reasons granting in part and denying in part Huisman North America Services, LLC’s Motion for
Judgment on the Pleadings or, Alternatively, Motion for Partial Summary Judgment (R. Doc. 189)
and, for the sake of brevity, will not be repeated here
5 See, R. Doc. 19.
Jones Act negligence, general maritime law negligence and unseaworthiness, general
maritime law maintenance and cure, and negligence under Louisiana law.6
In the instant Motion for Partial Summary Judgment, Oceaneering seeks the
dismissal of Cole’s Jones Act claim alleging that Cole does not qualify as a Jones Act
seaman because he lacked the requisite connection to a vessel, or an identifiable
group of vessels, at the time of his alleged injuries.7 Oceaneering claims that to prove
seaman status, a plaintiff must show: (1) his duties contributed to the function of the
vessel or to the accomplishment of its mission; and (2) he has 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.8 Oceaneering contends that courts have routinely
held that an appropriate rule of thumb is that a worker who spends less than about
30% of his time in the service of a vessel in navigation should not qualify as a seaman
under the Jones Act.9 Relying upon that rule, Oceaneering asserts that Cole cannot
satisfy the “substantial connection” requirement because the undisputed facts show
that he spent less than 10% of his employment with Huisman North American
Services (“Huisman”) working aboard Oceaneering’s vessel.10
Oceaneering claims that Cole was employed by Huisman as a crane operator
from approximately November 1, 2017 until February 21, 2021, or for about 1209
days, and that Huisman assigned Cole to work aboard Oceaneering vessels on only
6 R. Doc. 1 at ¶¶ 20-42; R. Doc. 19 at ¶¶ 24-45.
7 R. Doc. 45.
8 R. Doc. 45-1 at p. 4 (quoting Crochet v. Morton Salt, Inc., 433 F.3d 977, 984 (W.D. La. 2020)) (internal
quotation marks omitted).
9 R. Doc. 45-1 at pp. 4-5 (quoting Crochet, 433 F.3d at 984-85) (internal quotation marks omitted).
10 R. Doc. 45-1 at pp. 5, 8-9 & 10.
two occasions for a total of 48 days.11 Oceaneering notes that Cole spent 462 days
working aboard vessels owned and operated by a non-party to this suit during his
three years of employment with Huisman.12 Oceaneering asserts that Cole was not
a member of any Oceaneering crew and that his assignments to vessels were
temporary and sporadic based upon the specific needs of Huisman’s clients at any
given time.13 Alternatively, Oceaneering asserts that Cole cannot satisfy the first
prong of the seaman status test because he cannot show that his work as a crane
operator contributed to the function of the M/V OCEAN PATRIOT.14
Cole asserts that the Motion should be denied because he was a member of the
crew of the M/V OCEAN PATRIOT “to which he was to be assigned for four straight
hitches and on which he spent 100% of his working time onboard the vessel
performing the duties of a crane operator which were essential to the mission and
purpose of the vessel.”15 Cole concedes that he has been a direct employee of Huisman
since November 2017, but claims that he “was assigned to a Hornbeck Offshore
Services LLC (‘Hornbeck’) vessel for his first 19 hitches while working for Huisman
and then to the Oceaneering [M/V] OCEAN PATRIOT for his next four hitches after
that, with the possibility that he could be assigned to the OCEAN PATRIOT beyond
those four hitches.”16 Cole asserts that during each hitch, he spent “100% of his
working time on vessels, most of that time at sea.”17 Cole argues that he is a Jones
11 Id. at p. 5 (citing R. Doc. 45-3).
12 R. Doc. 45-1 at p. 5 (citing R. Doc. 45-3).
13 R. Doc. 45-1 at pp. 5 & 6.
14 Id. at pp. 10-11.
15 R. Doc. 58 at p. 1.
16 Id. at pp. 2-3 (citing R. Doc. 45-3).
17 R. Doc. 58 at p. 3 (citing R. Doc. 58-12).
Act seaman because his work as a crane operator was essential to the purpose of the
vessel, which was a diving support vessel, and because he meets the “substantial
connection” test as a crew member of the M/V OCEAN PATRIOT who spent all of his
working time aboard the vessel.18
In response, Oceaneering asserts that there is no evidence before the Court to
indicate that Cole would be assigned to the M/V OCEAN PATRIOT for any additional
hitches beyond the hitch at issue in this case.19 Turning to the “substantial
connection” requirement of the Jones Act seaman test, Oceaneering asserts that the
relevant consideration is not the amount of time that Cole spent aboard vessels,
generally, but the amount of time he spent aboard vessels under Oceaneering’s
common ownership or control.20 Oceaneering points out that Cole’s Opposition brief
ignores the Fifth Circuit’s most recent case on this issue, Sanchez v. Fabricators of
Texas, LLC, cited in Oceaneering’s Motion, wherein the Fifth Circuit reiterated that
a plaintiff must show that 30% of his work was spent aboard vessels under the
common ownership or control of his employer.21 Oceaneering maintains that Cole
cannot meet this 30% threshold, as he spent less than 10% of his time aboard
Oceaneering vessels while employed with Huisman. 22 Oceaneering then
distinguishes the two unreported cases cited by Cole in his Opposition brief, and
further asserts that the evidence before the Court shows that Cole was never
18 R. Doc. 58 at pp. 3 & 4-10.
19 R. Doc. 80 at p. 1.
20 Id. at p. 2.
21 Id. at pp. 2-3 (citing Sanchez, 997 F.3d 564 (5th Cir. 2021)).
22 R. Doc. 80 at pp. 3-4.
permanently assigned to an Oceaneering vessel.23 Oceaneering asserts that, at best,
the evidence shows that Cole’s connection to the vessels he worked aboard while
employed by Huisman was transitory and sporadic.24 Oceaneering also asserts that
Cole’s self-serving affidavit is insufficient to defeat summary judgment.25
II. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine disputed issue as
to any material fact, and the moving party is entitled to judgment as a matter of
law.26 A party moving for summary judgment must inform the Court of the basis for
the motion and identify those portions of the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, that show that
there is no such genuine issue of material fact.27 If the moving party carries its
burden of proof under Rule 56, the opposing party must direct the Court’s attention
to specific evidence in the record which demonstrates that the non-moving party can
satisfy a reasonable jury that it is entitled to a verdict in its favor.28 This burden is
not satisfied by some metaphysical doubt as to alleged material facts, by unsworn
and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of
evidence.29 Rather, Rule 56 mandates that summary judgment be entered against a
party who fails to make a showing sufficient to establish the existence of an element
23 Id. at pp. 5-6.
24 Id. at p. 6.
25 Id. at pp. 6-7.
26 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
27 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
28 Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
29 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
essential to that party’s case and on which that party will bear the burden of proof at
trial.30 In resolving a motion for summary judgment, the Court must review the facts
and inferences in the light most favorable to the non-moving party, and the Court
may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual
disputes.31
III. ANALYSIS
The Jones Act grants a “seaman” injured in the course of employment a cause
of action against his employer in negligence.32 “A plaintiff claiming the benefits of
the Jones Act bears the burden of establishing seaman status.”33 To prove seaman
status, a plaintiff must show that: (1) his duties contribute to the function of the
vessel or to the accomplishment of its mission; and (2) he has 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.34 “In deciding whether there is an identifiable
group of vessels of relevance for a Jones Act seaman-status determination, the
question is whether the vessels are subject to common ownership or control.”35
According to the Supreme Court, the first factor “is very broad: ‘All who work at sea
in the service of a ship’ are eligible for seaman status.”36 In contrast, the purpose of
30 Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
31 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
32 Sanchez v. Smart Fabricators of Texas, LLC, 997 F.3d 564, 568-69 (5th Cir. 2021) (en banc) (citing
46 U.S.C. § 30104).
33 Crochet v. Morton Salt, Inc., 433 F. Supp. 3d 977, 984 (W.D. La. 2020) (citing Becker v. Tidewater,
Inc., 335 F.3d 376, 390 (5th Cir. 2003)).
34 Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (citations
omitted); Sanchez, 997 F.3d at 570-74.
35 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 557, 117 S.Ct. 1535, 1541, 137 L.Ed.2d 800 (1997).
36 Chandris, 515 U.S. at 368, 115 S.Ct. 2190 (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337,
354, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991)) (emphasis in original).
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.”37 Stated another way, “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 a vessel at a given time.”38
A. Cole’s Duties as a Crane Operator Contributed to the Function of
the M/V OCEAN PATRIOT and to the Accomplishment of its
Mission.
There is no dispute that the M/V OCEAN PATRIOT was a vessel in navigation.
As to the “threshold requirement” of the Jones Act seaman status test,39 Oceaneering
asserts that the Fifth Circuit held in Adams v. All Coast, LLC that a crane operator,
like Cole, is not qualified as a seaman because his duties do not aid the vessel as a
means of transportation.40 The Court, however, agrees with Cole that Oceaneering’s
reliance upon Adams is misplaced, as the issue before the Fifth Circuit was whether
the plaintiffs were correctly classified as seaman by their employer and, therefore,
exempt from the overtime pay rules in the Fair Labor Standards Act (“FLSA”).41 In
37 Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.
38 Id., 515 U.S. at 370, 115 S.Ct. at 2190-2191.
39 Id., 515 U.S. at 368, 115 S.Ct. at 2190.
40 R. Doc. 45-1 at p. 10 (citing Adams, 15 F.4th 365, 373 (5th Cir. 2021)).
41 Adams, 15 F.4th at 367-68.
addressing that issue, the Fifth Circuit looked to the Department of Labor’s
regulations and explained that, “an employee is a seaman if: ‘(1) the employee is
subject to the authority, direction, and control of the master; and (2) the employee’s
service is primarily offered to aid the vessel as a means of transportation, provided
that the employee does not perform a substantial amount of different work.’”42 The
facts of this case are clearly distinguishable from those in Adams, as this case does
not involve a claim for overtime pay under the FLSA. Oceaneering offers no other
argument in support of its position that Cole’s duties as a crane operator aboard the
M/V OCEAN PATRIOT did not aid the vessel in its function or mission.
In his Opposition brief, Cole asserts that the M/V OCEAN PATRIOT is a 240-
foot saturation diving support vessel with a 40-ton knuckle boom crane, and that
typical projects for the vessel include “underwater salvage operations, platform and
stub removal, remotely operated underwater vehicle (“ROV”) and diving support
services, pipeline riser and subsea work, platform jacket repairs and other offshore
subsea and surface inspection, maintenance, repair and installation operations.”43
Cole asserts that the crane “is essential to most if not all of these projects and is
operated by three crane operators, all of which (including Mr. Cole) are listed as crew
members in the OCEAN PATRIOT’s Daily Vessel Log.”44 Oceaneering does not
address these assertions in its Reply brief, nor has Oceaneering directed the Court to
42 Adams, 15 F.4th at 369 (quoting Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276, 281 (5th Cir.
2014)).
43 R. Doc. 58 at p.3 (citing R. Doc. 58-8).
44 R. Doc. 58 at p. 3 (citing R. Doc. 58-9).
any evidence contradicting Cole’s assertions.45 Based upon the undisputed evidence
before the Court, the Court finds that Cole’s work as a crane operator contributed to
the function of the M/V OCEAN PATRIOT and to the accomplishment of its mission.
As such, Cole satisfies the first requirement for seaman status under the Jones Act.
B. Cole Does Not Meet the Substantial Connection Test.
To satisfy the “substantial connection” requirement of the seaman status test,
a plaintiff must show that his connection to a vessel in navigation, or to an
identifiable group of vessels, is substantial in terms of both its duration and its
nature.46 As to the duration element, the general “rule of thumb” is that a worker
who spends less than 30% of his employment time in the service of a vessel in
navigation is not a seaman.47 In the instant case, the parties dispute how to apply
the 30% rule. Oceaneering asserts that Cole does not satisfy the substantial duration
test because he spent less than 10% of his three-year employment with Huisman
working aboard Oceaneering’s vessel.48 Specifically, Oceaneering asserts that Cole
was employed by Huisman as a crane operator from November 1, 2017 through
February 21, 2021, and during that roughly three-year period (1209 days), Cole spent
510 days working aboard offshore vessels.49 Oceaneering asserts that of those 510
days that he worked offshore for Huisman, Cole worked aboard Oceaneering vessels
45 See, generally, R. Doc. 80.
46 Sanchez v. Smart Fabricators of Texas, LLC, 997 F.3d 564, 571 (5th Cir. 2021) (quoting Chandris,
Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)) (internal quotation marks
omitted). See, Sanchez v. American Pollution Control Corp., 542 F. Supp. 3d 446, 450 (E.D. La. June
4, 2021) (Barbier, J.) (citing Chandris, 515 U.S. at 371, 115 S.Ct. 2172) (“There are two facets to the
substantial connection requirement: duration and nature. Both must be satisfied.”)
47 Sanchez, 542 F. Supp. 3d at 540 (citing Chandris, 515 U.S. at 371, 115 S.Ct. 2172).
48 R. Doc. 45-1 at p. 5.
49 Id. at p. 8 (citing R. Doc. 45-3).
on two occasions for a combined total of 48 days, which is less than 10% of his time
spent aboard vessels “and less than .04% of his overall period of employment”
with Huisman.50
In contrast, Cole looks at how he spent his time aboard the Oceaneering
vessels, and repeatedly asserts that he “spent 100% of his working time” aboard a
vessel, performing tasks essential to the mission and purpose of the vessel, and that
he is not a land-based worker.51 Cole claims that he was scheduled for two additional
hitches on the M/V OCEAN PATRIOT and that, given the facts and the law, “there
can be no doubt that Mr. Cole was assigned as a crew member to the OCEAN
PATRIOT.”52 Cole asserts that he was a member of the M/V OCEAN PATRIOT’s
crew because he was listed as a crew member in the Daily Vessel Logs and was
treated the same as the two other crane operators aboard the vessel who were directly
employed by Oceaneering.53
The most recent authority on this issue is Sanchez v. Smart Fabricators of
Texas, LLC, a unanimous, en banc decision from the Fifth Circuit in which the court
overhauled its precedent regarding the “substantial in nature” element of the
substantial connection test and concluded that the plaintiff-welder did not satisfy
that aspect of the Jones Act seaman test.54 In doing so, however, the Fifth Circuit
also addressed the duration element of the substantiality requirement. The Sanchez
50 R. Doc. 45-1 at p. 5 (citing R. Doc. 45-2 at p. 1; R. Doc. 45-3); R. Doc. 45-1 at pp. 8-9 (emphasis in
original).
51 R. Doc. 58 at pp. 1, 3, 4, 6, 8, & 11.
52 R. Doc. 58 at pp. 7-8 (citing R. Doc. 58-10).
53 R. Doc. 58 at pp. 8-9 (citing R. Docs. 58-12 & 58-7 at p. 5).
54 997 F.3d 564, 574 (5th Cir. 2021); See, Sanchez v. American Pollution Control Corp., 542 F. Supp.
3d 446, 454 (E.D. La. 2021) (citing Sanchez, 997 F.3d 564).
court found that the plaintiff in that case had worked for the defendant “for a total of
67 days between August 2017 and August 2018,” but that six of those days were spent
working on welding jobs on land or on vessels irrelevant to his status of a seaman
because they were not owned or controlled by his alleged Jones Act employer.55 The
Fifth Circuit noted that, “Sanchez spent the remaining 61 days – those pertinent or
our inquiry – on two different jack-up drilling rigs owned by Enterprise: the
Enterprise WFD 350 and the Enterprise 263.”56 The Fifth Circuit found that the
plaintiff had spent 48 days working on the Enterprise WFD 350, which “comprised
approximately 72 percent of his total work time with SmartFab,” and that the plaintiff
had worked 13 days on the Enterprise 263, which “comprised approximately 19
percent of his time in SmartFab’s employment.”57 Although not expressly stated in
the opinion, the Fifth Circuit determined these percentages based upon plaintiff’s 67
days of “total work time with SmartFab.”58
Addressing the substantial duration element of the seaman status test, the
Fifth Circuit held that, “Sanchez spent approximately 90 percent of his total
employment time with SmartFab aboard the two Enterprise vessels. He therefore
satisfied the duration prong of the substantiality test.”59 The Fifth Circuit reasoned
that, “As the Court stated in Chandris, generally if a worker spends at least 30
percent of his time aboard a vessel or a fleet of vessels, then he establishes the
55 997 F.3d at 566.
56 Id. at 566-67.
57 Id. at 567 (emphasis added).
58 Specifically, 48 out of 67 days is 71.6 percent, while 13 out of 67 days is 19.4 percent.
59 997 F.3d at 574 (emphasis added). Again, this Court has determined that 61 out of 67 days is 91%.
duration prong.”60 The Fifth Circuit then considered whether the plaintiff “spent at
least 30 percent of his time aboard these two vessels doing work that satisfies the
nature prong of that test.”61 Regarding the plaintiff’s work aboard the Enterprise
WFD 350, the Fifth Circuit held that his work was not “sea-based” and therefore did
not satisfy the nature test.62 As to his work on the Enterprise 263, the Fifth Circuit
held that, “Sanchez worked on the Enterprise 263 only 13 days, which would amount
to less than 20 percent of his total time of his employment with SmartFab – well short
of the 30 percent required for satisfaction of the duration prong of the substantiality
test.”63 The Fifth Circuit ultimately concluded that the plaintiff failed to satisfy the
nature test and, therefore, failed to create a genuine issue of material fact that he
had a substantial connection to the fleet of vessels as it related to the nature of his
work.”64
In determining whether the plaintiff in Sanchez satisfied the substantial
duration element of the Jones Act seaman test, the Fifth Circuit considered whether
the plaintiff spent at least 30% of his total employment aboard the vessels owned by
his alleged Jones Act employer. District courts in this Circuit have reached the same
conclusion, including several Sections of this Court. In Meaux v. Cooper
Consolidated, LLC, for example, another Section of this Court reaffirmed its prior
holding that the plaintiff satisfied the substantial duration prong of the Jones Act
60 Id. (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)).
61 997 F.3d at 575.
62 Id.
63 Id. at 576 (emphasis added).
64 Id.
seaman test because “for the entire period of his employment with Cooper (except
orientation), he was assigned to Cooper’s barges to assist in their cargo-handling
mission, even when physically aboard the non-Cooper cargo vessels to perform his
duties of signaling the crane operators on Cooper’s barges to safely load and unload
the vessels . . . .”65 Thus, the Meaux court considered the plaintiff’s entire length of
employment with his alleged Jones Act employer in determining whether the
substantial duration element was met. The Court further notes that the Meaux court
had previously determined that, “With respect to duration, there is no summary-
judgment evidence that Meaux did any work on land or as a crewmember of any non-
Cooper vessel, so as to make the Chandris 30-percent analysis relevant.”66 The
Meaux court reasoned that, “All of Meaux’s work was performed as a crewmember of
a Cooper barge. Thus, no hours tallying is necessary to conclude that the durational
aspect of the vessel-connection requirement is readily satisfied.”67 In contrast, the
undisputed evidence before this Court shows that during his three years of
employment with Huisman, Cole worked aboard vessels owned by Hornbeck and
vessels owned by Oceaneering, thereby triggering an analysis under the 30%
guideline.68
In Sanchez v. American Pollution Control Corp., a different Section of this
Court, post-Sanchez v. Smart Fabricators, likewise indicated that a plaintiff’s entire
65 545 F.Supp.3d 383, 385-86 (E.D. La. 2021) (emphasis added).
66 Meaux v. Cooper Consolidated, LLC, 477 F. Supp. 3d 515, 526 (E.D. La. 2020) (Ashe, J.) (emphasis
in original).
67 Id.
68 See. R. Doc. 45-3.
length of employment is relevant to the substantial duration inquiry.69 The plaintiff
in that case was employed by the defendant for 23 days during the summer of 2010
and spent the first 17 days working on land, but spent each of the last six days
working aboard a vessel.70 The parties disputed the relevant employment period for
purposes of the Jones Act seaman test, with the defendant asserting that the plaintiff
“spent only 26% of her employment time – 6 out of 23 days – working on” the vessel.71
In contrast, the plaintiff asserted that her reassignment to the vessel “constituted a
permanent and fundamental change of status,” and that, “she spent 100% of the
relevant employment period – 6 out of 6 days – working on a vessel in navigation.”72
Regarding the substantial duration element, the Sanchez court recognized that,
“Typically, the seaman status inquiry considers the overall course of the worker’s
employment with a particular employer.”73 The Sanchez court further acknowledged,
however, that, “If a maritime employee receives a new work assignment in which his
essential duties are changed, he is entitled to have the assessment of the
substantiality of his vessel-related work made on the basis of his activities in his new
position.”74 The Sanchez court ultimately concluded that there were material issues
of fact as to whether the plaintiff’s reassignment to the vessel was sufficient to trigger
the “change-of-assignment” exception, which precluded summary judgment on
69 542 F. Supp. 3d 446, 451 (E.D. La. 2021) (Barbier, J.).
70 Id. at 449.
71 Id. at 450-51.
72 Id. at 451.
73 Id.
74 Id. (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 372, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995))
(internal quotation marks omitted).
plaintiff’s seaman status.75 Thus, the Sanchez court indicated that if the exception
did not apply, it would consider plaintiff’s entire length of employment with the
defendant (23 days) in determining whether the substantial duration element was
met.
In another post-Sanchez v. Smart Fabricators case, Barlow v. BP Exploration
& Production, Inc., yet another Section of this Court considered the plaintiff’s entire
length of employment in determining whether the plaintiff satisfied the duration
element of the Jones Act seaman test.76 Specifically, the Barlow court found that,
“During the period relevant to this case, Barlow worked from early May until
September 24. All of this time, he was assigned to the M/V Odyssea Atlas except for
approximately seven days at the end of that period on a barge not owned by
Odyssea.”77 The Barlow court held, “Therefore, Barlow spent over four months in
service of the M/V Odyssea Atlas and one week on the barge. This is well over the
thirty percent needed to fulfill the substantial time element of Chandris.”78
In Perez v. Aquaterra Contracting, LLC, another Section of this Court similarly
indicated that, unless an exception applies, the substantial duration element depends
upon the entire span of a plaintiff’s employment with the alleged Jones Act
employer.79 The Perez court was asked to determine the seaman status of a decedent
who began working for the defendants on May 14, 2014, resigned on March 27, 2019,
75 Id. at 452-53.
76 Civ. A. No. 12-2248, 2022 WL 3221822 (E.D. La. Aug. 8, 2022) (Fallon, J.).
77 Id. at *3.
78 Id. (citing Chandris, 515 U.S. 347, 115 S.Ct. 2172).
79 593 F. Supp. 3d 444 (E.D. La. 2022) (Vance, J.).
was rehired by the defendants in late August 2019, and worked for defendants until
his death on October 3, 2019.80 The issue before the court was whether the decedent’s
seaman status depended only on his employment period from August to October of
2019, or on the entire span of his employment with the defendants.81 The Perez court
recognized that, “A ‘significant break’ in a worker’s employment may limit the scope
of the court’s seaman inquiry,” and that the Fifth Circuit has held that a four-month
hiatus in a worker’s employment requires a separate evaluation of the worker’s duties
during the re-employment period.82 The Perez court concluded that the Fifth Circuit’s
examination of the worker’s seaman status in that case “was properly limited to ‘the
six month period of employment prior to his death, rather than . . . his total work
history.’”83 The Perez court ultimately concluded that the plaintiff’s “five-month
hiatus compels this Court to confine its seaman analysis to the re-employment
period” of August 2019 to October 2019.84 Thus, had there been no significant break
in the decedent’s employment with the defendants, the Perez court would have
considered his entire length of employment dating back to May 2014 in determining
his Jones Act seaman status.
Cases from the Middle District of Louisiana further support this Court’s
determination that the entire length of Cole’s employment period with Huisman is
relevant to the substantial duration element of the Jones Act seaman inquiry. In
80 593 F. Supp. 3d 444, 447-48 (E.D. La. 2022).
81 Id. at 448.
82 Id. at 448-49 (quoting In re Patton-Tully Transp. Co., 797 F.2d 206, 210 (5th Cir. 1986)) (internal
quotation marks omitted).
83 Perez, 593 F. Supp. 3d at 449 (quoting Patton-Tully, 797 F.2d at 210).
84 Perez, 593 F. Supp. 3d at 449.
Johnson v. Cooper T. Smith Stevedoring Company, Inc., the plaintiff worked for the
defendant from 2008 until he was injured on June 22, 2018 and a dispute arose
regarding his status as a Jones Act seaman.85 In addressing the substantial duration
element at the summary judgment stage, the Johnson court cited the 30% guideline
set forth in Chandris and found that the plaintiff had produced “no evidence to show
what portion of his time was spent aboard a vessel.”86 The Johnson court also found
that the one exhibit produced by plaintiff had shown only that plaintiff “worked for
CTS for 20 years, that he operated heavy machinery and performed various other
stevedoring functions, and that on the date of his accident he worked aboard a cargo
barge moored midstream.”87 The Johnson court concluded that, “Having failed to
provide any evidence establishing what portion of his 20-year tenure he spent aboard
a vessel or a fleet of vessels, Plaintiff cannot show a substantial connection to a vessel
in navigation and his Jones Act claims must fail.”88 In Blanda v. Cooper/T. Smith
Corporation, another Section of the Middle District of Louisiana likewise held that,
“When measuring the 30% rule of thumb, ‘[t]ypically, the seaman status inquiry
considers the overall course of the worker’s employment with a particular
employer,’89 i.e., ‘the entire length of a plaintiff’s employment with the defendant.’”90
85 610 F. Supp. 3d 867, 871-72 (M.D. La. 2022) (Jackson, J.).
86 Id. at 874-75 (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314
(1995)).
87 610 F. Supp. 3d at 875.
88 Id. (emphasis added).
89 599 F. Supp. 3d 385, 397 (M.D. La. 2022) (deGravelles, J.) (quoting Sanchez v. American Pollution
Control Corp., 542 F. Supp. 3d 446, 451 (E.D. La. 2021) (citing Chandris, 515 U.S. at 371-72, 115 S.Ct.
2172)).
90 Blanda, 599 F. Supp. 3d at 397 (quoting Gage v. Canal Barge Co., 431 F. Supp. 3d 754, 762 (M.D.
La. 2020) (quoting Zertuche v. Great Lakes Dredge and Dock Co., LLC, 306 Fed.Appx. 93, 96 (5th Cir.
2009))) (emphasis added).
Based upon the foregoing authority, the Court finds it appropriate to consider
Cole’s entire three-year period of employment with Huisman in determining whether
Cole has raised a genuine issue of material fact regarding the substantial duration
element of the Jones Act seaman status test. There is no dispute that Cole was
employed by Huisman from November 1, 2017 until his injury on February 21, 2021.91
There is also no dispute that during his approximately three years of employment
with Huisman, Cole spent a total of 510 days working aboard offshore vessels.92
There is no dispute that of those 510 days spent aboard vessels, Cole spent 48 days
aboard Oceaneering-owned or operated vessels and spent the remaining 462 days
aboard vessels not owned or operated by Oceaneering or Huisman.93 Relying upon
Chandris 94 and the Fifth Circuit’s ruling in Sanchez 95 and its progeny, the
undisputed evidence before the Court shows that Cole spent less than 5% of his total
employment with Huisman aboard Oceaneering vessels.96 Taking into account the
Supreme Court’s caution that the 30% test is a “guideline” and that “departure from
it will certainly be justified in appropriate cases,”97 the Court notes that, even if it
considers the 510 days that Cole worked aboard offshore vessels during his three-
91 R. Doc. 45-1 at p. 5 (citing R. Doc. 45-2 at p. 1); R. Doc. 45-5 at p. 1; R. Doc. 58 at pp. 2-3 (citing R.
Doc. 45-3).
92 R. Doc. 45-1 at pp. 8-9; R. Doc. 45-5 at p. 1; R. Doc. 58-1 at p. 1.
93 R. Doc. 45-5 at p. 2 (citing R. Doc. 45-3); R. Doc. 58-1 at p. 3.
94 Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995).
95 Sanchez v. Smart Fabricators of Texas, LLC, 997 F.3d 564 (5th Cir. 2021).
96 The Court reached this determination by considering the 48 days spent aboard Oceaneering vessels
during Cole’s approximately three-year (1095-day) employment with Huisman. While Cole concedes
that he was hired by Huisman in November 2017 (R. Doc. 58 at p. 2; R. Doc. 58-1 at p. 1), he neither
confirms nor denies Oceaneering’s assertion that he worked for Huisman for 1209 days. See, R. Doc.
45-1 at p. 5.
97 Chandris, 515 U.S. at 371, 115 S.Ct. at 2191.
year employment with Huisman, Cole spent only 48 out of 510 days, or less than 10%,
of his employment working aboard Oceaneering vessels. This, too, is far lower than
the 30% needed to satisfy the substantial duration prong of the Jones Act seaman
test. Because Cole has failed to produce evidence to show that he had a substantial
connection to the M/V OCEAN PATRIOT as it relates to the duration of his work,
Oceaneering is entitled to summary judgment on his Jones Act claim.
To the extent Cole argues that he satisfies the 30% rule because during his
hitches aboard the M/V OCEAN PATRIOT “he spent 100% of his working time”
aboard the vessel, Cole appears to misunderstand how the 30% rule has been applied
by courts in this Circuit. Cole’s Opposition brief ignores and fails to address the most
pertinent authority on this issue, the Fifth Circuit’s 2021 en banc decision in Sanchez,
which was cited in Oceaneering’s Motion.98 Had Cole reviewed the Sanchez decision,
he would have understood that the 30% duration prong applies where, as here, the
plaintiff did not spend all of his time aboard vessels owned or operated by the alleged
Jones Act employer.99 Instead, Cole chose to rely upon two unpublished district court
opinions, which were decided about a decade before Sanchez.100 While not binding on
this Court, the Court nonetheless points out that the Bayham case is clearly
distinguishable from the facts of this case because that court described the second
98 R. Doc. 45-1 at pp. 9-10 (citing Sanchez v. Fabricators of Texas, LLC, 997 F.3d 564 (5th Cir. 2021)).
99 See, Sanchez, 997 F.3d at 574 (“Sanchez spent approximately 90 percent of his total employment
time with SmartFab aboard the two Enterprise vessels. He therefore satisfied the duration prong of
the substantiality test. As the Court stated in Chandris, generally if a worker spends at least 30
percent of his time aboard a vessel or a fleet of vessels, then he establishes the duration prong.”).
100 R. Doc. 58 at pp. 5-7 (citing Bayham v. Grosse Tete Well Serv., Inc., Civ. A. No. 11-1815, 2012 WL
1865737, at *5 (E.D. La. May 22, 2012) (Fallon, J.); Joseph v. Marine Mgmt. Contractors, Inc., Civ. A.
No. 06-0405, 2007 WL 1964527, at *8 (S.D. Tex. July 3, 2007) (Johnson, M.J.)).
prong of the seaman status test as requiring that “the worker [] be assigned
permanently to a vessel or have performed a substantial part of his work on the vessel
at issue.”101 In doing so, the Bayham court relied upon two cases from the Fifth
Circuit that pre-date Chandris, wherein the Supreme Court set forth the two-prong
test for Jones Act seaman status that courts apply today.102
Further, to the extent the Bayham court found that the plaintiff at issue
satisfied the substantial duration element because he was permanently assigned to
the vessel, there is no evidence before this Court suggesting that Cole was
permanently assigned to the M/V OCEAN PATRIOT. Indeed, Cole acknowledges
that he was assigned to the M/V OCEAN PATRIOT “for his next four hitches after
that, with the possibility that he could be assigned to the OCEAN PATRIOT beyond
those four hitches”103 The evidence confirms that Cole spent only two hitches aboard
the M/V OCEAN PATRIOT between November 14, 2017 and February 21, 2021, for
a total of 48 days,104 and that Oceaneering had requested Cole for two additional
hitches in April and July of 2021.105 The Court recognizes that Cole has produced a
document that purports to be a Daily Vessel Log from the M/V OCEAN PATRIOT
101 Civ. A. No. 11-1815, 2012 WL 1865737 at *3.
102 Id. (citing Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959); Barrett v. Chevron, U.S.C., Inc.,
781 F.2d 1067, 1072 (5th Cir. 1986)). See, Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132
L.Ed.2d 314 (1995).
103 R. Doc. 58 at p. 2.
104 R. Doc. 45-3. See, R. Doc. 45-2 at pp. 2-4 (“No one is assigned specifically to a vessel, but clients do
grow to like people, and if they are available, we try and accommodate our client’s request.”). See, Id.
at pp. 5-6 (when asked whether Cole was assigned to the M/V OCEAN PATRIOT “on a regular basis”
and whether Cole was “assigned to any specific vessel on a regular basis,” Robert Thompson testified
“No.”).
105 R. Doc. 45-2 at pp. 3-4.
from February 13, 2021, which includes Cole in the list of “Vessel Crew.”106 Even
considering that document, the evidence is uncontested that Plaintiff was not
permanently assigned to the M/V OCEAN PATRIOT. Further, the controlling
authority, Sanchez, directs this Court to apply the 30% rule to Cole’s length of
employment with Huisman in determining whether his work aboard the M/V OCEAN
PATRIOT was substantial in duration. The Court has determined that Cole’s work
aboard the M/V OCEAN PATRIOT was not substantial in duration, as it constitutes
less than 10% of his time spent aboard offshore vessels during his three-year
employment with Huisman, and less than 5% of his total employment with Huisman.
Having determined that the Plaintiff’s work with Defendant Oceaneering was not
substantial in duration, the Court need not address the second prong of the
connection inquiry, namely, the nature of Cole’s activities aboard the vessel.
Accordingly, the Court finds that Cole has failed to raise a genuine issue of material
fact as to whether his work aboard the M/V OCEAN PATRIOT was significant in
duration and, therefore, has failed to raise a genuine dispute regarding whether he
is a Jones Act seaman. The Court therefore finds that Oceaneering is entitled to
summary judgment on Cole’s Jones Act claims.107
106 R. Doc. 58-9.
107 The Court notes that Oceaneering did not address the substantial in nature facet of the substantial
connection requirement of the Jones Act seaman status test. Because Cole has failed to raise a genuine
issue of material fact regarding the substantial duration element, the Court need not address whether
he satisfies the substantial nature element.
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Oceaneering’s Motion for
Partial Summary Judgment 1% is GRANTED and that Cole’s Jones Act claims
asserted against Oceaneering are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Oceaneering shall have seven (7) days
from the date of this Order and Reasons to advise the Court in writing whether
today’s ruling impacts Oceaneering’s three remaining summary judgment motions. 199
Oceaneering shall advise the Court by sending an email to the Court’s email address,
efile-Vitter@laed.uscourts.gov.
New Orleans, Louisiana, April 26, 2023.
end Vettic
WENDY BJVITTER
United States District Judge
108 R. Doce. 45.
109 See, R. Docs. 52, 54, & 55.