“[M]erely claiming that the evidence is self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional.”
How later courts described this case
- “[M]erely claiming that the evidence is self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional.”
- agreeing with Stein’s reasoning in a tax case
Written by the judges who cited it.
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 Plaintiff’s Motion for Reconsideration of Order Granting
Motion for Summary Judgment, filed by Darryl Cole.1 Defendant, Oceaneering
International, Inc. (“Oceaneering”), opposes the Motion,2 and Cole has filed a Reply.3
Cole seeks reconsideration of this Court’s April 26, 2023 Order and Reasons, in which
the Court granted Oceaneering’s Motion for Partial Summary Judgment and
dismissed with prejudice Cole’s Jones Act claims on the basis that Cole was not a
Jones Act seaman.
Also before the Court is Plaintiff’s Motion for Partial Summary Judgment on
Jones Act Status.4 Oceaneering opposes that Motion, adopting the arguments made
and evidence submitted in support of its Motion for Partial Summary Judgment,5 and
Cole has filed a Reply.6
After careful consideration of the parties’ memoranda and the applicable law,
Cole’s Motion for Reconsideration is GRANTED, the Court’s prior Order and Reasons
1 R. Doc. 206.
2 R. Doc. 213.
3 R. Doc. 217.
4 R. Doc. 67.
5 R. Doc. 85 (citing R. Docs. 45 & 80). The Court notes that Oceaneering refers to its prior Reply brief
as “Rec. Doc. 65,” but R. Doc. 65 was marked as deficient and re-filed into the record as R. Doc. 80.
6 R. Doc. 99.
is VACATED in part, Oceaneering’s Motion for Partial Summary Judgment is
DENIED, and Cole’s Motion for Partial Summary Judgment on Jones Act Status is
GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter concerns a maritime personal injury. The pertinent facts and
procedural history of this case were fully recited in the Court’s April 26, 2023 Order
and Reasons,7 and will not be restated herein. In that Order and Reasons, the Court
concluded that Cole failed to raise a genuine dispute regarding his status as a Jones
Act seaman. Applying the two-part substantial connection test set forth in Chandris,
Inc. v. Latsis, the Court concluded that while Cole’s work as a crane operator aboard
the M/V OCEAN PATRIOT, which was owned and operated by Oceaneering,
contributed to the function of the vessel and the accomplishment of its mission as a
diving support vessel,8 Cole’s connection to the M/V OCEAN PATRIOT was not
substantial in duration based upon Cole’s time aboard Oceaneering vessels during
his three-year employment with his direct employer, Huisman North American
Services, LLC (“Huisman”).9 The Court did not address whether Cole’s connection to
the M/V OCEAN PATRIOT was substantial in nature, since that issue was not
addressed by the parties.10
7 R. Doc. 205.
8 Id. at pp. 7-9.
9 Id. at pp. 9-21. See, Chandris, Inc. v. Latsis, 515 U.S. 347, 368-72, 115 S.Ct. 2172, 2189-92, 132
L.Ed.2d 314 (1995).
10 See, R. Doc. 45.
A. Cole’s Motion for Reconsideration
Cole moves for reconsideration of the Court’s April 26, 2023 Order and
Reasons, arguing that the Court erred in concluding that he does not satisfy the
duration prong of the Chandris substantial connection test on the basis that he did
not spend 30% of his total time employed by Huisman working aboard Oceaneering
vessels.11 Cole asserts that because there is no evidence that he was a land-based
employee, the Chandris test is not applicable in this case.12 Cole points to Meaux v.
Cooper Consolidated, LLC, a case in which another Section of this Court found the
Chandris 30% analysis irrelevant where, like here, the plaintiff was not a land-based
employee and spent 100% of his time working aboard a vessel for his Jones Act
employer.13 Cole urges the Court to reach the same result in this case, since it is
undisputed that he was not a land-based worker and spent 100% of his time working
on vessels at sea.14 Cole also asserts that the Court erred in discounting the analysis
employed by the district court in Bayham v. Grosse Tete Well Serv., Inc., claiming that
it remains relevant authority and supports his position that he was a seaman at the
time of his injuries.15
Cole further argues that if the Court insists on applying the Chandris 30%
analysis to his employment period with Huisman rather than Oceaneering, his
11 R. Doc. 206-1 at pp. 1-3 & 4-6. As explained later in this Order, the Supreme Court in Chandris
adopted the Fifth Circuit’s general rule of thumb 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. 515
U.S. at, 115 S.Ct. at 2191.
12 R. Doc. 206-1 at pp. 4-5.
13 Id. at pp. 4-7 (citing Meaux, 477 F. Supp. 3d 515, 529 (E.D. La. 2020)).
14 R. Doc. 206-1 at pp. 4-5 & 7.
15 Id. at pp. 10-12 (citing Bayham, Civ. A. No. 11-1815, 2012 WL 1865737, at *5-6 (E.D. La. May 22,
2012) (Fallon, J.)).
reassignment from Hornbeck Offshore Services LLC (“Hornbeck”) vessels to
Oceaneering’s M/V OCEAN PATRIOT was a fundamental change in assignment.16
Cole claims that this change in assignment “either establishes Mr. Cole’s seaman
status as a matter of law or at the very least raises a fact question regarding whether
Mr. Cole was permanently assigned to the DSV Ocean Patriot and/or whether that
was a change in assignment that would provide an exception to the 30% test.”17 Cole
further asserts that the Court, in reviewing its prior Order and Reasons, should
address the six pending motions and cross-motions filed by Cole and Oceaneering
regarding seaman status, vicarious liability, and borrowed servant status, which Cole
contends are intertwined.18
Oceaneering opposes the Motion, asserting that Cole merely recites the same
arguments that were before the Court when it issued its April 26, 2023 Order and
Reasons, which arguments are unsupported by summary judgment evidence.19
Oceaneering claims that in ruling on its Motion for Partial Summary Judgment, this
Court properly considered all undisputed facts, as supported by the evidence in this
case, the Court’s ruling was proper, and Cole has not established a legitimate
justification for the immediate reconsideration of the Court’s April 26, 2023 Order
and Reasons. Oceaneering further asserts that Cole ignores the undisputed fact that
he was merely a land-based worker who happened to be on an Oceaneering vessel at
the time of his injuries, thereby rendering application of the Chandris 30% analysis
16 R. Doc. 206-1 at pp. 14-16.
17 Id. at p. 16.
18 Id. (citing R. Docs. 45, 52, 55, 67, 70, & 71).
19 R. Doc. 213 at pp. 1-2.
relevant and critical to the analysis of his seaman status.20 Oceaneering points out
that Cole was never permanently assigned to Oceaneering’s vessels and that he is an
itinerant worker who had multiple, transitory, and different assignments to many
distinct, unrelated vessels over the course of his employment with Huisman.21
Oceaneering argues that Meaux makes clear that the 30% test applies in such
circumstances, and the fact remains that Cole does not satisfy the substantial
duration element of the Jones Act seaman test.22 Oceaneering further asserts that
granting reconsideration would result in unnecessary delay of this case, which is set
for trial in July 2023.23 Oceaneering notes that Cole is not left without a remedy, as
he could qualify as a longshoreman under the Longshore and Harbor Workers’
Compensation Act, and that he maintains a right to appeal the Court’s decision.24
In response, Cole maintains that he is not a land-based worker and points out
that Oceaneering did not claim that he was a land-based worker in its Statement of
Uncontested Facts filed with its Motion for Partial Summary Judgment.25 Cole
asserts that Oceaneering has already admitted that he was assigned to the M/V
OCEAN PATRIOT,26 and further claims that the only remaining question is whether
20 Id. at p. 5.
21 Id. at pp. 6-7.
22 Id. at p. 7 (citing Meaux v. Cooper Consolidated, LLC, 477 F. Supp. 3d 515, 526 (E.D. La. 2020)).
23 R. Doc. 213 at p. 9. The Court notes that Oceaneering filed its Opposition brief on May 8, 2023. On
May 18, 2023, the Court continued the trial until August 15, 2023 in order to address the Motion for
Reconsideration. R. Doc. 218.
24 R. Doc. 213 at p. 10.
25 R. Doc. 217 at pp. 3-4 (citing R. Doc. 45-5).
26 R. Doc. 217 at pp. 5-6 (citing R. Doc. 58-10 at p. 2 & R. Doc. 58 at p. 2).
that assignment was more or less permanent, as that term is used by the Fifth
Circuit.27
B. Cole’s Motion for Partial Summary Judgment on Jones Act Status
Like Oceaneering, Cole also moved for partial summary judgment on his status
as a Jones Act seaman.28 Cole’s arguments in support of summary judgment are
similar to the arguments raised in his Motion for Reconsideration, namely that he is
a seaman because he was a crane operator assigned to a diving support vessel and
only worked aboard the vessel performing tasks essential to the mission and purpose
of the vessel.29 Cole asserts that the Chandris 30% analysis does not apply in this
case because he was not a land-based worker who spent some of his time working on
vessels and some of his time working shoreside.30 Relying upon Bayham, Cole argues
that he is a seaman because he “spent 100% of his working time in the service of
vessels for the entirety of his employment with Huisman.”31 Cole claims that one
hitch aboard the M/V OCEAN PATRIOT would have been sufficient to satisfy the
permanence aspect of his assignment, and that, “[t]wo hitches in a row is decidedly a
significant amount of time.”32 Because he was scheduled to work on the M/V OCEAN
PATRIOT for an additional two hitches, Cole argues his connection to the vessel was
27 R. Doc. 217 at p. 5.
28 R. Doc. 67.
29 R. Doc. 67-2 at p. 8.
30 Id. at pp. 7-9 (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995);
Bayham v. Grosse Tete Well Serv., Inc., Civ. A. No. 11-1815, 2012 WL 1865737, at *5 (E.D. La. May 22,
2012)).
31 R. Doc. 67-2 at p. 9 (citing R. Doc. 67-5 at ¶ 6). See, R. Doc. 67-2 at pp. 8-10 (citing Bayham, Civ. A.
No. 11-1815, 2012 WL 1865737 at *5-6).
32 R. Doc. 67-2 at p. 10-12 (citing 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.)).
substantial in nature.33 Cole further asserts that he satisfies the first prong of the
Chandris substantial connection test because he was undeniably doing the ship’s
work, his crane operation contributed to the mission and purpose of the M/V OCEAN
PATRIOT, and he was part of the M/V OCEAN PATRIOT’s crew.34
In its Opposition brief, Oceaneering asserts that Cole’s arguments “are
essentially a recitation of the arguments raised by Plaintiff in response to
Oceaneering’s earlier filed Motion for Partial Summary Judgment on the same issues
of seaman status (Rec. Doc. 45).”35 As such, “Oceaneering submits that its Motion
(Rec. Doc. 45) and Reply Memorandum in support thereof (Rec. Doc. 65) . . . should
collectively serve as an Opposition to Plaintiff’s cross-motion on those very same
issues (Rec. Doc. 67).”36 Relying on its prior briefing, Oceaneering maintains that
Cole does not qualify as a Jones Act seaman because he lacked the requisite
connection to a vessel, or identifiable group of vessels, at the time of his alleged
injuries.37 Oceaneering furth asserts that it “will submit additional briefing on the
issue of Plaintiff’s Jones Act seaman status should the Court so desire.”38
In response, Cole first asserts that Oceaneering failed to rebut his Statement
of Uncontested Material Facts, which should be deemed admitted for purposes of his
Motion.39 Cole argues that Oceaneering is bound by its own admission that Huisman
33 R. Doc. 67-2 at p. 12.
34 Id. at pp. 12- 13.
35 R. Doc. 85 at p .1.
36 Id.
37 Id.
38 Id. at p. 2.
39 R. Doc. 99 at pp. 1-6 (citing R. Doc. 67-1).
assigned him to the M/V OCEAN PATRIOT,40 and further claims that Oceaneering
has failed to present any evidence to contradict Cole’s statements in his affidavit that
he did not perform any land-based work while employed by Huisman or while
assigned to the M/V OCEAN PATRIOT.41 Cole also points out that Oceaneering
failed to submit any evidence to contradict Cole’s statement in his affidavit that he
ate and slept on the M/V OCEAN PATRIOT for the entirety of his two hitches aboard
the vessel.42 Cole asserts that both Oceaneering’s answer to a request for admission
and the testimony of Robert Thompson, Huisman’s corporate representative,
demonstrate that he was assigned to the M/V OCEAN PATRIOT.43 Cole maintains
that because he was never a land-based employee, the Chandris 30% analysis is not
applicable, and that the issue before the Court is whether he was permanently
assigned to the M/V OCEAN PATRIOT.44 Cole reiterates that he was assigned to the
M/V OCEAN PATRIOT for two hitches, that he had been requested for two additional
hitches after that, and that he did all of his work aboard the vessel, thereby making
his assignment to the vessel dispositive of the question of seaman status.45
II. LEGAL STANDARD
A. Summary Judgment
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
40 R. Doc. 99 at p. 2 (citing R. Doc. 99-1 at p. 2).
41 R. Doc. 99 at pp. 3-4 (citing C.R. Pittman Const. Co., Inc. v. National Fire Ins. Co. of Hartford, 453
Fed.Appx. 439, 443-44 (5th Cir. 2011)).
42 R. Doc. 99 at p. 4.
43 Id. at pp. 4-5.
44 Id. at pp. 6-7.
45 Id. at pp. 7-8.
law.46 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.47 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.48 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.49 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
essential to that party’s case and on which that party will bear the burden of proof at
trial.50 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.51
46 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).
47 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
48 Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
49 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
50 Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
51 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
B. Reconsideration Under Fed. R. Civ. P. 54(b)52
Cole seeks reconsideration of the Court’s April 26, 2023 Order and Reasons
granting Oceaneering’s Motion For Partial Summary Judgment pursuant to Fed. R.
Civ. P. 54(b).53 Rule 54(b) provides, in pertinent part, that:
[A]ny order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims or parties and
may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.
Under Rule 54(b), “the trial court is free to reconsider and reverse its decision for any
reason it deems sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.”54 Whether to grant a motion to
reconsider under Rule 54(b) “rests within the discretion of the court.”55 The Fifth
Circuit has held that Rule 54(b) is “more flexible, reflecting the inherent power of the
rendering district court to afford such relief from interlocutory judgments as justice
requires.”56 Thus, a court conducting a Rule 54(b) inquiry may consider new
arguments that could have been previously raised.57
52 While Cole seeks reconsideration under Fed. R. Civ. P. 54(b), Oceaneering, in its Opposition brief,
suggests that the Court apply the Rule 59(e) analysis. See, R. Doc. 213. The Court finds it appropriate
to consider the Motion for Reconsideration under Rule 54(b).
53 R. Doc. 206-1 at pp. 3-4.
54 Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (quoting Lavespere v. Niagara Mach.
& Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994)) (internal quotation marks omitted).
55 Namer v. Scottsdale Insur. Co., 314 F.R.D. 392, 393 (E.D. La. 2016) (Africk, J.) (quoting Bernard v.
Grefer, Civ. A. No. 14-887, 2015 WL 3485761, at *5 (E.D. La. June 2, 2015) (Fallon, J.)) (internal
quotation marks omitted).
56 Austin, 864 F.3d at 336-37 (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)) (internal
quotation marks omitted).
57 McClendon v. United States, 892 F.3d 775, 781-82 (5th Cir. 2018) (citing Austin, 864 F.3d at 337).
III. ANALYSIS
A. Jones Act Seaman Status.
The Jones Act grants a “seaman” injured in the course of employment a cause
of action against his employer in negligence.58 The term “seaman” is not defined in
the Jones Act.59 As such, “A plaintiff claiming the benefits of the Jones Act bears the
burden of establishing seaman status.”60 The Supreme Court has held that
determining seaman status under the Jones Act “is a mixed question of law and fact,
and it often will be inappropriate to take the question from the jury.”61 “If reasonable
persons, applying the proper legal standard, could differ as to whether the employee
was a ‘member of the crew,’ it is a question for the jury.”62 Thus, summary judgment
is appropriate when the law and undisputed material facts support only one
reasonable inference.63
According to the Supreme Court, seamen “owe their allegiance to a vessel and
not solely to a land-based employer.”64 It is “well settled” that, “the Jones Act inquiry
is fundamentally status based: Land-based maritime workers do not become seamen
because they happen to be working on board a vessel when they are injured, and
58 Sanchez v. Smart Fabricators of Texas, LLC, 997 F.3d 564, 568-69 (5th Cir. 2021) (en banc) (citing
46 U.S.C. § 30104).
59 See, 46 U.S.C. § 30104.
60 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)).
61 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540, 137 L.Ed.2d 800. See,
Becker, 335 F.3d at 386 (same).
62 Chandris, Inc. v. Latsis, 515 U.S. 347, 369, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995) (quoting
McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991)).
63 Harbor Tug, 520 U.S. at 554, 117 S.Ct. at 1540 (quoting Wilander, 498 U.S. at 356, 111 S.Ct. at 818).
64 Chandris, 515 U.S. at 359, 115 S.Ct. at 2185 (quoting Wilander, 498 U.S. at 347, 111 S.Ct. at 813)
(internal quotation marks omitted).
seamen do not lose Jones Act protection when the course of their service to a vessel
takes them ashore.” 65 Additionally, “In evaluating the employment-related
connection of a maritime worker to a vessel in navigation, courts should not employ
‘a “snapshot” test for seaman status, inspecting only the situation as it exists at the
instant of injury; a more enduring relationship is contemplated in the
jurisprudence.’”66 “Thus, a worker may not oscillate back and forth between Jones
Act coverage and other remedies depending on the activity in which the worker was
engaged while injured.”67
The Supreme Court in Chandris established a two-prong test for determining
seaman status.68 First, “an employee’s duties must contribute to the function of the
vessel or to the accomplishment of its mission.”69 The Supreme Court has made clear
that, “this threshold requirement is very broad” and extends “to those maritime
employees who do the ship’s work.”70 Second, the employee “must have 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.”71 According to the Supreme Court:
The fundamental purpose of this substantial connection requirement is
to give full effect to the remedial scheme created by Congress and to
separate the sea-based maritime employees who are entitled to Jones
Act protection from those land-based workers who have only a transitory
65 Chandris, 515 U.S. at 363, 115 S.Ct. at 2187.
66 Id. (quoting Easley v. Southern Shipbuilding Corp., 965 F.2d 1, 5 (5th Cir. 1992)).
67 Chandris, 515 U.S. at 363, 115 S.Ct. at 2187 (citing Reeves v. Mobile Dredging & Pumping Co., 26
F.3d 1247, 1256 (3rd Cir. 1994)).
68 Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.
69 Id. (quoting Wilander, 498 U.S. at 355, 111 S.Ct. at 817) (internal quotation marks omitted).
70 Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.
71 Id.
or sporadic connection to a vessel in navigation, and therefore whose
employment does not regularly expose them to the perils of the sea.72
Additionally, “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.”73
In determining the substantial duration aspect of the Chandris substantial
connection test, the Supreme Court has adopted the Fifth Circuit’s general rule of
thumb that, “A worker who spends less than about 30 percent of his time in the
service of a vessel in navigation should not qualify as a seaman under the Jones
Act.”74 The Supreme Court clarified that, “This figure of course serves as no more
than a guideline established by years of experience, and departure from it will
certainly be justified in appropriate cases.”75 The Fifth Circuit recently overhauled
the standard applicable for determining whether a worker satisfies the substantial
in nature aspect of the Chandris test. In Sanchez v. Smart Fabricators of Texas, LLC,
the Fifth Circuit, sitting en banc, expressly overruled the panel decision in Naquin v.
Elevating Boats, LLC76 and called into question the panel decision in In re Endeavor
Marine, Inc.77 to the extent they held that the substantial in nature prong was
72 Id. (citation omitted).
73 Id., 515 U.S. at 370, 115 S.Ct. at 2190-91.
74 Id., 515 U.S. at 371, 115 S.Ct. at 2191.
75 Id.
76 744 F.3d 927, 932 (5th Cir. 2014).
77 234 F.3d 287, 291 (5th Cir. 2000).
satisfied if the plaintiff was exposed to the “perils of the sea.”78 The Fifth Circuit in
Sanchez held that, in addition to asking whether a worker was subject to the perils
of the sea, courts must also make the following inquiries:
(1) Does the worker owe his allegiance to the vessel, rather than simply
to a shoreside employer?
(2) Is the work sea-based or involve seagoing activity?
(3) (a) Is the worker’s assignment to a vessel limited to performance of a
discrete task after which the worker’s connection to the vessel ends, or
(b) Does the worker’s assignment include sailing with the vessel from
port to port or location to location?79
B. Reconsideration of the Court’s April 26, 2023 Order and Reasons
Granting Oceaneering’s Motion for Partial Summary Judgment.
Cole seeks reconsideration of the portion of this Court’s April 26, 2023 Order
and Reasons in which the Court determined that he is not a Jones Act seaman
because he does not satisfy the duration prong of the Chandris substantial connection
test. Neither party contests the Court’s determination that Cole meets the first prong
of the test—namely, that Cole’s duties as a crane operator contributed to the function
of the M/V OCEAN PATRIOT and to the accomplishment of its mission.80 As such,
that portion of the Court’s prior ruling remains intact. The parties likewise do not
seek reconsideration or review of the Court’s decision to not address the substantial
in nature prong of the Chandris test, which was not addressed by the parties.81 Thus,
the only portion of the Court’s prior ruling that is now at issue is the Court’s
78 Sanchez, 997 F.3d 564, 573 (5th Cir. 2014).
79 Id. at 574.
80 R. Doc. 205 at pp. 7-9. See, generally, R. Docs. 206, 213, & 217.
81 R. Doc. 205 at p. 21, n.107. See, generally, R. Docs. 45-1, 58, & 80.
determination that Cole does not satisfy the substantial duration element of the
Chandris substantial connection test.82
After further review of the pertinent Fifth Circuit authority on the issue,
specifically Meaux v. Cooper Consolidated, LLC,83 the Court finds it appropriate to
reconsider its ruling regarding whether Cole’s connection to the M/V OCEAN
PATRIOT was substantial in duration. The plaintiff in Meaux, Jonathan R. Meaux,
was hired by Savard Labor & Marine Personnel, Inc. d/b/a Savard Labor & Marine
Personnel, Inc. (“Savard”) in January 2019 to work at Cooper Consolidated LLC
(“Cooper”) as a flagger and utility man in the service of crane barges owned and
operated by Cooper.84 After attending an orientation conducted at Cooper’s office on
January 3, 2019, Meaux began work the next day as a flagger and utility man on
several of Cooper’s crane barges.85 On February 19, 2019, Meaux was injured while
working as a deckhand on one of Cooper’s barges and sustained injuries to his neck
and head.86 As a result of his injuries, Meaux sued both Savard and Cooper, alleging
that he was a Jones Act seaman and Cooper’s borrowed employee, and sought
damages for negligence under the Jones Act, 46 U.S.C. § 30104, maintenance and
cure, and punitive damages and attorney’s fees for Cooper and Savard’s failure to pay
such benefits.87 Alternatively, if the court determined that he was not a Jones Act
82 The Court addresses the substantial in nature prong of the Chandris test in its analysis of Cole’s
Motion for Partial Summary Judgment. See, Section III (C), herein.
83 477 F. Supp. 3d 515 (E.D. La. 2020) (hereafter, “Meaux I”).
84 Meaux I, 477 F. Supp. 3d at 520.
85 Id.
86 Id. at 520-21.
87 Id. at 521 (citations omitted).
seaman, Meaux sought benefits under the Longshore and Harbor Workers’
Compensation Act (“LHWCA”).88
Meaux and Cooper filed cross-motions for summary judgment on seaman
status, with Cooper arguing that Meaux was not a seaman because he lacked a
connection to a Cooper vessel or fleet of vessels that was substantial in both nature
and duration.89 The district court concluded that Meaux was a Jones Act seaman,
finding, with respect to the first Chandris factor, that all of his work was performed
over water while in the service of a Cooper vessel and advanced the function and
mission of the vessel.90 Turning to the substantial duration element, the court found
that, “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.”91 The court explained 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.”92
Although Cooper and Savard went “to great lengths to analyze the percentage of time
Meaux physically spent aboard the Cooper barges as opposed to the time he was
physically positioned on the non-Cooper vessels being loaded and unloaded to perform
88 Id. at 521-22. Although not mentioned in the opinion, Meaux alleged in his First Supplement [sic]
and Amended Complaint for Damages that he “was a Jones Act seaman and employee of defendant
Cooper (borrowing employer) and/or Savard (hiring employer).” See, R. Doc. 4 at ¶ IV in Jonathon R.
Meaux v. Cooper Consolidated, LLC, et al., Civ. A. No. 19-10628 (E.D. La.).
89 Meaux I, 477 F. Supp. 3d at 522.
90 Id. at 526.
91 Id. (emphasis in original).
92 Id.
his assigned duties as a signalman for the crane operators on the Cooper barges,” the
Meaux court found that, in doing so, Cooper and Savard “miss the point.”93
The court explained that, “the purpose of the duration test is to determine
whether the employee’s attachment to a vessel was substantial. Here, Meaux’s was
since it was permanent: for the entire period of his employment, he was assigned as
a crewmember to one of Cooper’s barges (except for a brief period of training).”94 The
court further explained that, “This is not an instance (like cases involving wireline
operators or similar itinerant maritime workers) in which an employee might have
multiple transitory and different assignments to many distinct unrelated vessels over
the course of his or her employment.”95 The court held that, “even while physically
located on the non-Cooper vessels, just yards away from and always visible to the
Cooper barges, Meaux was still doing the work of the Cooper barges as a
permanently-assigned member of their crews.”96 The court further found that Meaux
satisfied the substantial in nature requirement because in performing his work, he
was regularly exposed to the perils of the sea.97 As such, on the issue of seaman
status, the court granted Meaux’s motion for summary judgment and denied Cooper’s
cross-motion for summary judgment.98
93 Id.
94 Id.
95 Id. (citing authority).
96 Id. at 527.
97 Id. (citing In re Endeavor Marine, Inc., 234 F.3d 287, 291-92 (5th Cir. 2000); Naquin v. Elevating
Boats, LLC, 744 F.3d 927, 934-35 (5th Cir. 2014)). The Court notes that Meaux I was decided before
the Fifth Circuit revised the substantial in nature test in Sanchez v. Smart Fabricators of Texas, LLC,
997 F.3d 564 (2021).
98 Meaux I, 477 F. Supp. 3d at 527.
Cooper moved for reconsideration under Fed. R. Civ. P. 54(b), arguing that the
court had erred by concluding that Meaux satisfied the duration prong of the
Chandris test when he did not spend 30% of his total time employed by Cooper
physically aboard the Cooper barges.99 Cooper also argued that the court had erred
in finding that Meaux’s connection to its barges was substantial in nature, since he
was doing classic longshore work and was not exposed to the perils of the open seas.100
The court denied the motion, explaining that while it had been “careful to apply the
Chandris test” in its prior Order and Reasons, it was unnecessary to confine the hours
tallied to only those Meaux spent aboard Cooper’s barges because: (1) there was no
summary-judgment evidence that he did any land-based work or was assigned as a
crewmember of a non-Cooper vessel; and (2) all of Meaux’s work was performed in
furtherance of the mission of the Cooper barges.101 As such, the court reaffirmed its
finding that, “Meaux’s connection to the Cooper vessels was substantial (very nearly
100% of his time), not sporadic, transitory, or intermittent.”102 The court further held
that, “seaman status turns on being ‘in the service’ of the vessel or fleet of vessels,”
and that, “since both parties agree that Meaux’s entire employment with Cooper
(except orientation) was spent aboard Cooper’s barges or the vessels they were
loading or unloading while ‘in the service’ of the mid-stream cargo-handling function
and mission of the Cooper crane barges, Meaux has satisfied the duration prong of
99 Meaux v. Cooper Consolidated, LLC, Civ. A. No. 19-10628, 2020 WL 5436572, at *1 (E.D. La. Sept.
10, 2020) (Ashe, J.) (hereafter, “Meaux II”).
100 Id.
101 Id. at *2.
102 Id. (citation omitted).
the Chandris test.”103 The court also reaffirmed its finding that Meaux satisfies the
nature prong of the Chandris test because he was exposed to the perils of the sea.104
As a result, the court denied Cooper’s motion for reconsideration, as well as Cooper’s
alternative request to certify interlocutory appeal.
Cooper subsequently filed a renewed motion for reconsideration of the court’s
order regarding Meaux’s seaman status.105 This time around, Cooper argued that
reconsideration was appropriate because Meaux could not meet the nature prong of
the seaman status test as articulated by the Fifth Circuit in Sanchez v. Smart
Fabricators of Texas, LLC.106 On June 25, 2021, the court, finding that the motion
was “well-taken and the issue of the nature of Meaux’s connection to a vessel or
identifiable fleet of vessels is a close call after Sanchez,” concluded that Meaux was a
seaman because he satisfied the Sanchez test “although just barely.”107 As such, the
court denied Cooper’s renewed motion for reconsideration. The court, however, found
that interlocutory appeal of the question of Meaux’s seaman status was “warranted
at this juncture.”108 The Fifth Circuit denied Cooper’s motion for leave to appeal from
the district court’s interlocutory order on July 26, 2021.109
103 Id. at *3.
104 Id. at *4.
105 Meaux v. Cooper Consolidated, LLC, 545 F. Supp. 3d 383 (E.D. La. 2021) (hereafter, “Meaux III”).
106 Id. at 386 (citing Sanchez, 997 F.3d 564 (5th Cir. 2021)).
107 Meaux III, 545 F. Supp. 3d at 388.
108 Id. at 390.
109 See, R. Doc. 123 in Jonathon R. Meaux v. Cooper Consolidated, LLC, et al., Civ. A. No. 19-10628
(E.D. La.). The Court notes that after a bench trial, the Meaux court concluded that Meaux was not a
Jones Act seaman because the evidence presented at trial established that the balance of the Sanchez
factors weighed against seaman status. See, R. Doc. 159 at p. 18, ¶ 16 in Jonathon R. Meaux v. Cooper
Consolidated, LLC, et al., Civ. A. No. 19-10628 (E.D. La.).
While not cited by either party in connection with Oceaneering’s Motion for
Partial Summary Judgment, which was the subject of the Court’s April 26, 2023
Order and Reasons,110 the Court finds the decisions in Meaux instructive regarding
whether and how to apply the Chandris 30% analysis when the alleged Jones Act
employer is not the plaintiff’s direct employer. At the outset, the Court notes that it
is not immediately apparent from Meaux I whether the substantial connection
analysis was limited to Meaux’s length of employment with Savard (his direct
employer) or Cooper (his alleged Jones Act/borrowed employer).111 That may be
because Meaux was hired by Savard “[i]n January 2019,” attended an orientation
conducted by a Cooper employee at a Cooper’s office on January 3, 2019, and “began
work the next day as a flagger and utility man in the service of crane barges owned
and operated by Cooper.”112 Thus, unlike in the instant case, Meaux began working
for his alleged Jones Act employer almost immediately after he was hired by his direct
employer.
Nonetheless, in its two subsequent rulings on Cooper’s motions for
reconsideration, the Meaux court clarified that it had previously held that:
Meaux’s connection to Cooper’s barges was substantial in terms of both
its nature and duration because, for the entire period of his employment
with Cooper (except orientation), he was always assigned to Cooper’s
barges to assist in their cargo handling, 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, and
110 See, R. Docs. 45, 45-1, 58, & 80.
111 See, generally, Meaux I, 477 F. Supp. 3d 515, 524-27 (E.D. La. 2020).
112 Id. at 520.
this work regularly exposed him to the perils of the sea (the Mississippi
River).113
In reviewing Cooper’s first motion for reconsideration, the Meaux court further
clarified that, “since both parties agree that Meaux’s entire employment with Cooper
(except orientation) was spent aboard Cooper’s barges or the vessels they were
loading or unloading while ‘in the service’ of the mid-stream cargo-handling function
and mission of the Cooper crane barges, Meaux has satisfied the duration prong of
the Chandris test.”114 In its review of Cooper’s renewed motion for reconsideration,
the court reiterated that Meaux satisfied the substantial duration prong because
“Meaux spent all of his employment with Cooper (except orientation) assigned to and
working on or from its crane barges.”115 Thus, in applying the Chandris substantial
connection test, the Meaux court considered only the length of Cole’s employment
with his alleged Jones Act employer, not his direct employer.
The Court agrees with the well-reasoned analysis conducted by the court in
Meaux regarding how to apply the Chandris substantial connection test when the
alleged Jones Act employer is not the plaintiff’s direct employer. The Court therefore
finds that in determining whether Oceaneering is entitled to summary judgment
regarding Cole’s seaman status, the Court must apply the Chandris substantial
connection test in the context of Cole’s employment with his alleged Jones Act
employer, Oceaneering, and not his nearly three-year employment with his direct
113 Meaux II, Civ. A. No. 19-10628, 2020 WL 5436572 at *1 (E.D. La. Sept. 10, 2020) (emphasis added);
Meaux III, 545 F. Supp. 3d 383, 386 (E.D. La. 2021) (emphasis added).
114 Meaux II, Civ. A. No. 19-10628, 2020 WL 5436572 at *3 (emphasis added).
115 Meaux III, 545 F. Supp. 3d at 386 (emphasis added).
employer, Huisman.116 According to the evidence submitted in connection with
Oceaneering’s Motion for Partial Summary Judgment, Cole was employed by
Huisman in November 2017, and later Huisman assigned Cole to the M/V OCEAN
PATRIOT.117 The evidence further shows that Cole worked two hitches aboard the
M/V OCEAN PATRIOT from December 11, 2020 to January 14, 2021 and from
February 9, 2021 to February 21, 2021. 118 Accordingly, in reconsidering
Oceaneering’s Motion for Partial Summary Judgment regarding Cole’s seaman
status, the Court will apply the Chandris substantial connection test to Cole’s work
for Oceaneering aboard the M/V OCEAN PATRIOT between December 11, 2020 and
February 21, 2021.
In doing so, the Court expressly rejects Oceaneering’s suggestion that Cole’s
nearly three-year employment with Huisman is relevant to the Chandris substantial
connection test. Oceaneering cites no legal authority supporting its contention that
this Court should look beyond Cole’s employment with his alleged Jones Act employer
in applying the substantial connection test, and this Court has found none. As Cole
correctly points out,119 the cases relied upon by this Court in its April 26, 2023 Order
and Reasons to reach the opposite conclusion involve claims brought against a Jones
Act employer who was also the plaintiff’s direct employer, thereby rendering the
116 See, Chandris, Inc. v. Latsis, 515 U.S. 347, 372, 115 S.Ct. 2172, 2191, 132 L.Ed.2d 314 (1995)
(“When a maritime worker’s basic assignment changes, his seaman status may change as well.”). See
also, Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1077 (5th Cir. 1986) (Rubin, J., dissenting) (“An
assignment to work as a crew member, like the voyage of a vessel, may be brief, and the Robison test
is applicable in deciding the worker’s status during any such employment.”).
117 R. Doc. 45-2 at p. 1; R. Doc. 58-10 at p. 2.
118 R. Doc. 45-3. There is also evidence before the Court showing that Oceaneering had requested Cole
for two additional hitches “in April and again in July” of 2021. See, R. Doc. 45-2 at p. 4.
119 R. Doc. 206-1 at pp. 9-10.
employment period with the direct employer relevant to the substantial connection
analysis.120 Because Cole has not alleged that his direct employer, Huisman, is also
his Jones Act employer, the foregoing cases are inapposite. The Court further notes
that the two Fifth Circuit cases cited by Oceaneering to support its position likewise
involve Jones Act claims brought by a plaintiff against his direct employer.121 As
such, the Court remains convinced that the correct approach is the one taken by the
Meaux court, and the one now taken by this Court, which considered only the
plaintiff’s length of employment with his alleged Jones Act employer in determining
whether he was a Jones Act seaman.
Turning to the substantial duration prong of the substantial connection test,
the Court agrees with Cole that the 30% analysis is not applicable here because, like
in Meaux, there is no evidence before the Court that Cole was a land-based employee.
Oceaneering has not submitted any evidence, nor is there any in the record, showing
that Cole performed work on land at any time during his employment with Huisman,
either before or after his assignment to the M/V OCEAN PATRIOT in December
2020.122 There is also no evidence before the Court that Cole was assigned to any
non-Oceaneering vessel after December 11, 2020. Instead, the evidence submitted by
Oceaneering shows that Cole worked aboard the M/V OCEAN PATRIOT for 48 days
120 See, R. Doc. 205 at pp. 10-17 (citing Sanchez v. Smart Fabricators of Texas, LLC, 997 F.3d 564 (5th
Cir. 2021); Sanchez v. American Pollution Control Corp., 542 F. Supp. 3d 446 (E.D. La. 2021); Barlow
v. BP Expl. & Prod., Inc., Civ. A. No. 12-2248, 2022 WL 3221822 (E.D. La. Aug. 8, 2022) (Fallon, J.);
Perez v. Aquaterra Contracting, LLC, 593 F. Supp. 3d 444 (E.D. La. 2022); Johnson v. Cooper T. Smith
Stevedoring Co., Inc., 610 F. Supp. 3d 867, 871-72 (M.D. La. 2022); Blanda v. Cooper/T. Smith Corp.,
599 F. Supp. 3d 385, 397 (M.D. La. 2022)).
121 R. Doc. 45-1 at pp. 7-10 (citing Roberts v. Cardinal Servs., Inc., 266 F.3d 368 (5th Cir. 2001);
Sanchez, 997 F.3d 564); R. Doc. 80 at pp. 2-3 (citing Roberts, supra; Sanchez, supra).
122 See, generally, R. Docs. 45, 45-1, 45-2, 45-3, 45-4, 45-5, 80, & 80-1.
between December 11, 2020 and February 21, 2021.123 The Court notes that
Oceaneering relied on that evidence to assert that Cole worked aboard the M/V
OCEAN PATRIOT “for a combined total of 48 days.”124 Thus, there is no dispute
between the parties that after December 2020, Cole did not perform any work on land
or on any non-Oceaneering vessels. Because there is no summary judgment evidence
suggesting that Cole performed any work on land or that he spent “only a small
fraction of his working time on board a vessel,” the Court need not determine whether
the time Cole spent aboard the M/V OCEAN PATRIOT satisfies the temporal
requirement of Chandris by applying the 30% analysis.125 The undisputed evidence
shows that while working aboard the M/V OCEAN PATRIOT, Cole was a sea-based
maritime employee.
The evidence also shows that Huisman assigned Cole to the M/V OCEAN
PATRIOT in December 2020. Oceaneering vehemently denies that Cole was ever
assigned to the M/V OCEAN PATRIOT because Thompson, Huisman’s corporate
representative, testified during his deposition that, “No one is assigned specifically to
a vessel.”126 As Cole points out,127 however, in response to a request for admission
propounded by Cole, Oceaneering admitted that, “plaintiff was employed by Huisman
North America Services who assigned him to the OCEAN PATRIOT.”128 Federal Rule
of Civil Procedure 36 governs requests for admissions and provides that, “A matter
123 R. Doc. 45-3.
124 R. Doc. 45-1 at p. 5 (citing R. Doc. 45-3).
125 Chandris, Inc. v. Latsis, 515 U.S. 347, 371, 115 S.Ct. 2172, 2191, 132 L.Ed.2d 314 (1995).
126 R. Doc. 45-1 at pp. 5 & 6 (citing R. Doc. 45-2 at p. 4).
127 R. Doc. 58 at p. 8, n.20 (citing R. Doc. 58-10 at p. 2).
128 R. Doc. 58-10 at p. 2 (emphasis added).
admitted under this rule is conclusively established unless the court, on motion,
permits the admission to be withdrawn or amended.”129 Additionally, “Rule 56(c)
specifies that ‘admissions on file’ can be an appropriate basis for granting summary
judgment.”130 The Fifth Circuit has held that, “A party who makes an admission,
whether express or by default, is bound by that admission for summary judgment
purposes–not even contrary evidence can overcome an admission at the summary
judgment stage.”131 Thus, Oceaneering is bound by its admission that Huisman
assigned Cole to the M/V OCEAN PATRIOT.
The evidence before the Court further shows that Cole was a member of the
crew of the M/V OCEAN PATRIOT. Cole provided a copy of the M/V OCEAN
PATRIOT’s Daily Vessel Log, dated February 13, 2021, that includes “Darryl Cole”
in the list of the “Vessel Crew.”132 Oceaneering does not address or otherwise dispute
this evidence in its Reply brief.133 While Thompson testified during his deposition
that, “No one is assigned specifically to a vessel,” he also stated that, “Once deployed
to Oceaneering or to Hornbeck or to wherever, once he’s on that boat, he’s theirs until
otherwise.”134 When asked to elaborate on that statement, Thompson testified that,
“Once an employee is out there, they’re out there for that client, for that hitch, for
129 Fed. R. Civ. P. 36(b).
130 In re Carney, 258 F.3d 415, 420 (5th Cir. 2001) (citing Fed. R. Civ. P. 56(c)); Poon-Atkins v.
Sappington, No. 21-60467, 2022 WL 102042, at *1 (5th Cir. Jan. 10, 2022) (citing Fed. R. Civ. P. 56(c)).
131 Poon-Atkins, No. 21-60467, 2022 WL 102042 at *1 (citing In re Carney, 258 F.3d at 420).
132 R. Doc. 58-9.
133 See, generally, R. Doc. 80.
134 R. Doc. 58-7 at p. 3.
whatever the terms of the contract. That employee is theirs at that point,”135 and
that, “while he was with Oceaneering, he’s with Oceaneering.”136
Thompson further testified that, “When the [crane] operator is on board, he
melds into the crew and he becomes part of whatever they want or however they
instruct him to do it.”137 Thompson testified that with respect to a crane operator like
Cole, “We send him out there, he’s to be part of the crew and do anything the crew
asks, within reason,” and that, “He is to meld in and function as part of the crew,
replacing their own operator.”138 Thompson further explained that, “there are two
Oceaneering crane operators that are directly employed by Oceaneering. There is a
rental operator by me. Those crane operators are part of the crew. He’s part of the
crew.”139 Oceaneering does not contest or otherwise dispute this evidence in its Reply
brief.140 The Court therefore finds that the undisputed evidence shows that Cole was
a member of the crew of the M/V OCEAN PATRIOT. Further, because the undisputed
evidence shows that Cole worked exclusively aboard the M/V OCEAN PATRIOT once
his assignment began on December 11, 2020, the Court finds that he was
“permanently assigned” to that vessel, as contemplated by the Jones Act.141 The
Court’s finding is further buttressed by the Fifth Circuit’s determination that, “We
135 Id. at pp. 3-4.
136 Id. at p. 4.
137 Id. at p. 5.
138 Id. at p. 9.
139 Id. at pp. 10-11.
140 Despite Oceaneering’s assertions to the contrary, the evidence of record, including evidence
submitted by Oceaneering, shows that Cole was also requested for two additional hitches with
Oceaneering after February 21, 2021. Id. at pp. 2-3; R. Doc. 45-2 at p. 4.
141 Bayham v. Grosse Tete Well Service Inc., Civ. A. No. 11-1815, 2012 WL 1865737, at *5 (E.D. La.
May 22, 2012).
have recognized that performing a substantial part of one’s work aboard a vessel or
identifiable fleet offers an alternative ground for meeting the permanency
requirement.”142
Based on the evidence of record, the Court finds that Cole’s connection to the
M/V OCEAN PATRIOT was substantial in duration. To the extent the Court reached
the opposite conclusion in its April 26, 2023 Order and Reasons,143 that portion of the
ruling is vacated and Oceaneering’s Motion for Partial Summary Judgment144 is
denied.145
C. Cole’s Motion for Partial Summary Judgment on Jones Act Status.
Because the Court previously determined that Cole satisfies the first element
of the Chandris substantial connection test146 and the Court has now determined that
Cole satisfies the substantial duration prong of the second element, and Oceaneering
did not submit any additional arguments or evidence regarding these two issues in
its Opposition to Cole’s Motion,147 the only remaining issue before the Court with
respect to Cole’s Motion is whether he satisfies the substantial nature prong of the
second element of the Chandris test. In Sanchez v. Smart Fabricators of Texas, LLC,
142 Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (5th Cir. 1984) (citing Davis v. Hill Engineering,
Inc., 549 F.2d 314, 326 (5th Cir. 1977); Bertrand v. Int’l Mooring & Maritime, Inc., 700 F.2d 240, 246
(5th Cir. 1983)). While the Fifth Circuit’s decision in Wallace pre-dates Chandris, the Court finds the
Fifth Circuit’s reasoning relevant to the instant dispute.
143 R. Doc. 205.
144 R. Doc. 45.
145 The Court notes that it would have reached the same conclusion even if the Chandris 30% analysis
were applicable to the facts of this case. According to the evidence submitted by Oceaneering, of the
73 days during which Cole was assigned to the M/V OCEAN PATRIOT (between December 11, 2020
and February 21, 2021), he spent 48 days, or 65% of his time, aboard the M/V OCEAN PATRIOT. R.
Doc. 45-3. As such, the Court remains convinced that Cole’s attachment to the M/V OCEAN PATRIOT
was substantial in duration.
146 See, R. Doc. 205 at pp. 7-9.
147 See, R. Doc. 85.
the Fifth Circuit overhauled the substantial in nature test and held that, in addition
to asking whether a worker was subject to the perils of the sea, courts must also make
the following inquiries:
(1) Does the worker owe his allegiance to the vessel, rather than simply
to a shoreside employer?
(2) Is the work sea-based or involve seagoing activity?
(3) (a) Is the worker’s assignment to a vessel limited to performance of a
discrete task after which the worker’s connection to the vessel ends, or
(b) Does the worker’s assignment include sailing with the vessel from
port to port or location to location?148
The parties did not address the substantial in nature prong of the substantial
connection test in their briefs.149 This may be because Cole claims in his Motion for
Reconsideration that, “There is no dispute that the substantial in nature prong has
been satisfied in this case.”150 While not a model of clarity, Cole seems to rely upon
a pre-Sanchez decision from a Texas district court, wherein the court concluded that
because a plaintiff lived aboard a vessel for weeks at a time, at sea and away from
the shore, and spent 100% of his work time in service of the vessel, he was not a land-
based employee and, therefore, satisfied the substantial nature portion of the
Chandris test.151 In both his Motion and his Opposition to Oceaneering’s Motion for
Partial Summary Judgment, Cole repeatedly asserts that he “spent 100% of his
working time in the service of vessels for the entirety of his employment with
Huisman,”152 and that he spent 100% of his time working aboard the M/V OCEAN
148 997 F.3d 564, 574 (5th Cir. 2021).
149 See, generally, R. Docs. 67, 85, 99; See also, R. Docs. 45 & 80.
150 R. Doc. 206-1 at p. 8.
151 R. Doc. 67-2 at p. 10 (quoting Joseph v. Marine Mgmt. Contractors, Inc., Civ. A. No. 06-0405, 2007
WL 1964527, at *8 (S.D. Tex. July 3, 2007)).
152 R. Doc. 67-2 at p. 9 (citing R. Doc. 67-3 at ¶ 6); R. Doc. 58 at p. 6 (citing R. Doc. 58-12).
PATRIOT during each hitch.153 Cole also asserts in his Motion that he ate and slept
aboard the M/V OCEAN PATRIOT for the entirety of his hitches.154 Oceaneering
does not address or contest these assertions in its summary judgment briefing.155
The undisputed evidence before the Court shows that Cole satisfies the
Sanchez substantial in nature test. Regarding the first factor, the evidence shows
that Cole owed his allegiance to the M/V OCEAN PATRIOT, and not his shoreside
employer, Huisman. As previously discussed, there is no dispute between the parties
that after his assignment in December 2020, Cole spent 100% of his working time as
a crane operator aboard the M/V OCEAN PATRIOT.156 Further, the Court has
determined that Cole’s assignment to the M/V OCEAN PATRIOT was permanent, as
contemplated by the Jones Act. Relying upon his own affidavit and deposition
testimony, as well as Thompson’s deposition testimony, Cole argues that that while
aboard the M/V OCEAN PATRIOT, he took his orders from the vessel, including the
captain, chief mate, chief engineer, and dive crew.157
Cole’s testimony as to his status is corroborated by the testimony of Huisman’s
corporate representative. Thompson testified that when a crane operator is on a
vessel, “he melds into the crew and he becomes part of whatever they want or however
they instruct him to do it.”158 Thompson also testified that, “We send him out there,
153 R. Doc. 67-2 at p. 10, n.40; R. Doc. 58 at pp. 1, 3. See, R. Doc. 206-1 at pp. 5 & 13 (“it is undisputed
that Plaintiff spent 100% of his time working for Oceaneering, his alleged Jones Act employer, on
vessels at sea.”).
154 R. Doc. 67-2 at p. 3 (citing R. Doc. 67-5 at ¶ 8).
155 See, generally, R. Doc. 85 (citing R. Docs. 45 & 80).
156 See, R. Doc. 45-1 at p. 5 (citing R. Doc. 45-3). See also, R. Doc. 85 (citing R. Docs. 45 & 80).
157 R. Doc. 67-2 at p. 5 (citing R. Doc. 67-5 at ¶ 11; R. Doc. 67-7 at pp. 4, 6, 7, 8, 9, 11, 18, 21, 22, & 23;
R. Doc. 67-9 at pp. 5 & 6).
158 R. Doc. 67-7 at p. 8.
he’s to be part of the crew and do anything the crew asks, within reason. . . . He is to
meld in and function as part of the crew, replacing their own operator.”159 Cole
likewise testified that his immediate boss on the M/V OCEAN PATRIOT was the
captain and that the captain directed him to do his job.160 Oceaneering has not
directed the Court to any evidence that contradicts this testimony.161 As such, the
undisputed evidence before the Court shows that Cole owed his allegiance to the M/V
OCEAN PATRIOT, not Huisman.
The Court further finds that Cole’s work as a crane operator is sea-based or
involves seagoing activity. There is no dispute that all of Cole’s work for Oceaneering
was performed aboard the M/V OCEAN PATRIOT and according to Oceaneering, the
M/V OCEAN PATRIOT “was operating in the Gulf of Mexico south of Port Fourchon,
Louisiana.”162 Relying upon his own affidavit, Cole asserts that he ate and slept on
the M/V OCEAN PATRIOT for the entirety of his hitches, and that he sailed with the
M/V OCEAN PATRIOT from Port Fourchon and from location to location. 163
Oceaneering asserts that Cole’s self-serving affidavit is insufficient to defeat
summary judgment.164 In doing so, Oceaneering ignores both Fed. R. Civ. P. 56(c)
and Fifth Circuit authority explaining that, “The Federal Rules permit parties to rely
on affidavits to oppose a motion for summary judgment if the affidavits are ‘made on
159 Id. at p. 21. See also, Id. at pp. 22-23 (“He’s part of the crew. Once they step on board that gangway,
they are to be part of whatever the - - I think by maritime law, at that point, the captain has jurisdiction
over everything. And at that point, he’s to do what he’s told within his capabilities.”).
160 R. Doc. 67-9 at p. 6.
161 See, R. Docs. 85, 45-1, & 80.
162 R. Doc. 45-1 at p. 2.
163 R. Doc. 67-2 at p. 3 (citing R. Doc. 67-5 at ¶¶ 8 & 9).
164 R. Doc. 80 at pp. 6-7 (citing Tyler v. Cedar Hill Indep. Sch. Dist., 426 Fed.Appx. 306, 309 (5th Cir.
2011)).
personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.”165 The Fifth
Circuit noted that, “This is true even if the affidavit is self-serving and
uncorroborated.”166
The Fifth Circuit has held that, “A party’s own testimony is often ‘self-serving,’
but we do not exclude it as incompetent for that reason alone.”167 The Fifth Circuit
shrewdly observed that, “If all ‘self-serving’ testimony were excluded from trials, they
would be short indeed.”168 The Court finds that Cole’s affidavit, which is based upon
his personal knowledge, constitutes competent summary judgment evidence.
Importantly, as Cole points out, Oceaneering has not offered any evidence to
contradict Cole’s assertions that he ate and slept on the M/V OCEAN PATRIOT for
the entirety of his two hitches and that he sailed with the M/V OCEAN PATRIOT
from Port Fourchon and from location to location.169 Oceaneering likewise does not
challenge Cole’s assertion that the crane on the M/V OCEAN PATRIOT is essential
to most, if not all, of the vessel’s projects, which included underwater salvage
165 Great Amer. Ins. Co. v. Employers Mut. Cas. Co., 18 F.4th 486, 493 (5th Cir.2021) (quoting Fed. R.
Civ. P. 56(c)(4)).
166 Great Amer. Ins. Co., 18 F.4th at 493 n.7 (citing United States v. Stein, 881 F.3d 853, 858-59 (11th
Cir. 2018) (en banc); McClendon v. United States, 892 F.3d 775, 785 (5th Cir. 2018) (agreeing with
Stein’s reasoning in a tax case); C.R. Pittman Const. Co., Inc. v. National Fire Ins. Co. of Hartford, 453
Fed.Appx. 439, 443 (5th Cir. 2011) (per curiam) (“[A]n affidavit based on personal knowledge and
containing factual assertions suffices to create a fact issue, even if the affidavit is arguably self-
serving.”)).
167 C.R. Pittman, 453 Fed.Appx. at 443 (citing Rushing v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir.
1999), superseded by Fed. R. Evid. 103(a) on other grounds as recognized in Mathis v. Exxon Corp., 302
F.3d 448, 459 n.16 (5th Cir. 2002) (“[M]erely claiming that the evidence is self-serving does not mean
we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent,
conclusional.”)).
168 C.R. Pittman, 453 Fed.Appx. at 443.
169 R. Doc. 99 at pp. 3-4.
operations, platform and stub removal, remotely operated underwater vehicle and
diving support services, pipeline riser and subsea work, platform jacket repairs and
other offshore subsea and surface inspection, maintenance, repair, and installation
operations.170 Further, as previously pointed out, Cole’s testimony is supported by
Thompson’s testimony. As such, the undisputed evidence shows that Cole’s work
aboard the M/V OCEAN PATRIOT was sea-based or involved seagoing activity,
satisfying the second Sanchez inquiry.
The evidence also shows that Cole’s assignment was not limited to the
performance of a discrete task, and included sailing with the M/V OCEAN PATRIOT
from port to port, thereby satisfying the third Sanchez inquiry. Finally, the foregoing
evidence demonstrates that Cole’s work as a crane operator aboard the M/V OCEAN
PATRIOT, which was operating in the Gulf of Mexico, subjected him to the perils of
the sea. Accordingly, the Court finds that Cole’s connection to the M/V OCEAN
PATRIOT was substantial in nature under Sanchez.
Based on the foreign evidence and analysis, Cole has shown that he qualifies
for seaman status because he contributed to the mission and function of
Oceaneering’s vessel, the M/V OCEAN PATRIOT, and his connection to the vessel
was substantial in nature and duration. Oceaneering has failed to present any
evidence to raise a genuine issue of material fact as to Cole’s status as a Jones Act
seaman. Cole is therefore entitled to summary judgment on the issue of seaman
status.
170 R. Doc. 67-2 at p. 3 (citing. R. Doc. 67-15). See, R. Doc. 85 (citing R. Docs. 45 & 80).
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiffs Motion for
Reconsideration of Order Granting Motion for Summary Judgment!7! is GRANTED
and the Court’s April 26, 2023 Order and Reasons!” is vacated in part to the extent
that the Court concluded that Cole was not a Jones Act seaman because his
connection to the M/V OCEAN PATRIOT was not substantial in duration.
IT IS FURTHER ORDERED that Oceaneering’s Motion for Partial
Summary Judgment!” regarding Cole’s seaman status is DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion for Partial Summary
Judgment on Jones Act Status!74 is GRANTED.
New Orleans, Louisiana, July 11, 2023.
WENDY B. tit
United States District Judge
172 R, Doc. 205.
173 R, Doc. 45.
174 R, Doc. 67.