Gage v. Canal Barge Company, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DILLION GAGE CIVIL ACTION NO.: 18-CV-990-JWD-RLB

VERSUS

CANAL BARGE CO., INC., ET AL.

RULING ON MOTION FOR SUMMARY JUDGMENT

BROUGHT BY CANAL BARGE CO., INC., AND CANAL

BARGE INTERNATIONAL, LLC

Before the Court is the Motion for Summary Judgment brought by Canal Barge Co., Inc.,

and Canal Barge International, LLC (collectively, “CBC” or “Defendants”). (Doc. 10.) The

motion is opposed. (Doc. 14.) Defendants filed a reply brief. (Doc. 15.) Oral argument is not

necessary. The Court has carefully considered the law, facts in the records, and the arguments

and submissions of the parties and is prepared to rule. For the following reasons, the motion is

granted in part and denied in part.

I. BACKGROUND AND SUMMARY OF ARGUMENTS

Plaintiff Dillon Gage (“Plaintiff” or “Gage”) sues Defendants for personal injuries under

the Jones Act, 46 U.S.C. § 30104. (Doc. 1 at 2.) Alternatively, Plaintiff brings his claim pursuant

to 33 U.S.C. § 905(b). (Id.) Plaintiff alleges that on January 23, 2018, while employed by

Defendants, he injured his lower back while lifting a Yamaha outboard motor onto the bed of a

pickup truck. (Id. at 3, ¶¶ VII-VIII; see also Doc. 10-4 at 50-561). Defendants move for summary

judgment arguing that Plaintiff was, as a matter of law, neither a seaman for purposes of the

Jones Act, nor is he entitled to recover under § 905(b) for this land-based accident.

1 Defendants attach portions of Plaintiff’s deposition at Doc. 10-4; Plaintiff does the same at Doc. 14-2. When the Court

refers to page numbers in these and other exhibits attached to the parties’ briefing, it uses the record document page

numbers and not the deposition page numbers.

CBC is in the business of moving bulk and liquid cargo on the inland waters of the

United States by way of barges. (Doc. 10-1 at 1, ¶ 2.) Plaintiff began work for CBC in

September of 2015 as a deckhand aboard CBC tugs. (Id. at ¶ 3; see also Doc. 14-2 at 6.) In

approximately December of 2017,2 Plaintiff requested a transfer to another position: barge

readiness technician. (Doc. 14-2 at 4.) CBC contends that Plaintiff’s transfer was to the

“shoreside department,” that his connection to vessels was no longer “substantial,” and therefore,

he was therefore no longer a seaman. (Doc. 10-2 at 11-19.)

CBC maintains that Plaintiff’s transfer to his new position as a barge readiness technician

would have lasted “at least one year and [he] would have continued to work as a barge readiness

technician if not for the incident.” (Doc. 10-1 at 2, ¶ 5.) As a result, argues CBC, while Plaintiff

“may once have been a seaman while employed by CBC as a deckhand, when he transferred to

the shoreside department and was moved to the barge readiness department, his status

permanently changed.” (Doc. 10-2 at 13; emphasis added.) “Therefore, to determine seaman

status, the review of Plaintiff’s job duties, responsibilities, and connection to vessels must be

limited to the period Plaintiff worked as a shoreside barge readiness technician.” (Id.) Since

Plaintiff was no longer a seaman following this permanent transfer, Defendants are entitled to

summary judgment on the issue of seaman status. In addition, Defendants maintain that since

Plaintiff’s accident occurred on land, without any vessel involvement, he cannot recover under §

905(b).

Plaintiff, on the other hand, contends that his transfer to the new position was not

permanent but was only an intermediary step to achieving his ultimate goal of becoming a

tankerman aboard CBC barges, indisputably seamen’s work. (Doc. 14 at 2.) Therefore, “a

2 While Defendants state that the transfer occurred in “late 2018” (Doc. 10-1 at 2; Doc. 10-2 at 3), this is an apparent

error as Plaintiff was injured on January 23, 2018. (Doc. 10-1 at 8, ¶ 47.)

genuine issue of material fact arises with respect to whether Mr. Gage’s new assignment was

permanent or temporary.” (Id. at 12.) If temporary, Plaintiff’s entire employment with CBC,

including over two years as a deckhand, can be considered in determining his seaman status.

This would make Plaintiff’s time performing seaman’s work far in excess of the 30% necessary

to survive summary judgment. (Doc. 14 at 11 (citing Roberts v. Cardinal Services, Inc., 266 F.3d

368, 375 (5th Cir. 2001).)

Alternatively, even if the Court limits its analysis to Plaintiff’s duties as a barge readiness

technician, Gage’s duties as such “included [] building tow, helping put running lights out,

inspecting barges for any damage, pumping out water in the hatches, physically cleaning stains

on the deck, and assisting with the shifting of barges,” all duties of a traditional seaman

performed aboard an identifiable fleet of vessels. (Doc. 14 at 5; citations to record omitted.)

Indeed, Plaintiff maintains that the majority of his time as a barge readiness technician was spent

doing seaman’s work, at least raising a question of fact as to the “substantial connection” prong

of the seaman’s test. (Id. at 10-12.) In sum, argues Plaintiff, significant questions of fact exist

regarding his status a seaman and therefore summary judgment is inappropriate. Plaintiff does

not address the § 905(b) issue raised in Defendants’ motion.

II. STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its

opponent must do more than simply show that there is some metaphysical doubt as to the

material facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that

there is a genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87, 106 S. Ct. 1348 (1986) (internal citations omitted). The non-mover's burden is

not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a ‘scintilla’ of

evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal

quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus.

Co., 475 U.S. at 587. Further:

In resolving the motion, the court may not undertake to evaluate the credibility of the

witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in

the record is such that a reasonable jury drawing all inferences in favor of the

nonmoving party could arrive at a verdict in that party’s favor, the court must deny the

motion.

International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

In the context of the specific summary judgment before the Court, “[t]he determination of

whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact

and it is usually inappropriate to take the question from the jury.” Naquin v. Elevating Boats,

L.L.C., 744 F.3d 927, 931 (5th Cir. 2014) (quoting Becker v. Tidewater, Inc., 335 F.3d 376 (5th

Cir. 2003). See also Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (“The

seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the

question from the jury.”); Bernard v. Binnings Const. Co., 741 F.2d 824, 828 (5th Cir. 1984)

(“[S]ummary judgment on seaman status is proper where the only rational inference to be drawn

from the evidence is that the worker is not a seaman.”) (quoting Beard v. Shell Oil Co, 606 F.2d

515, 517 (5th Cir. 1979)); Starks v. Advantage Staffing, LLC, 202 F. Supp. 3d 607, 611 (E.D. La.

2016) (“[T]he issue of seaman status is ordinarily a jury question, even when the claim to

seaman status is marginal.”) (quoting White v. Valley Line Co., 736 F.2d 304, 305 (5th Cir.

1984)). “Thus, summary judgment on seaman status in Jones Act cases is rarely proper.” Starks,

202 F. Supp. 3d at 611 (citing Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir. 1983)).

III. TEST FOR SEAMAN STATUS

To determine if a worker is a seaman, the Supreme Court has established a two-pronged

test: “First, ‘an employee’s duties must contribute to the function of the vessel or to the

accomplishment of its mission.’ Second, ‘a seaman must have a connection to a vessel in

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

duration and nature.’” Naquin, 744 F.3d at 932-33 (quoting Becker v. Tidewater, Inc., 335 F.3d

376, 387 (5th Cir. 2003), in turn, quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).)

A. VESSEL

Central to both prongs of the test is the presence of a “vessel in navigation” or

“identifiable fleet” of such vessels to which the worker has a substantial employment-related3

connection and whose duties contribute to the function or mission of the vessel or fleet. In

Stewart v. Dutra Const. Co., 543 U.S. 481, 489 (2005), the Court looked primarily to 1 U.S.C. §

3 to define the word “vessel.” “The word ‘vessel’ includes every description of watercraft or

other artificial contrivance used, or capable of being used, as a means of transportation on

water.” 1 U.S.C. § 3.

But for seaman status purposes, Stewart narrowed the statutory definition by requiring

that the craft be practically, not merely theoretically, capable of transportation on water. “[A]

‘vessel’ is any watercraft practically capable of maritime transportation, regardless of its primary

3 While Chandris does not make this explicit, it is clear that there must be a substantial employment connection between

the worker and the vessel or fleet in order for a worker to be a seaman. “The key to seaman status is employment-related

connection to a vessel in navigation. We are not called upon here to define this connection in all details, but we hold that

a necessary element of the connection is that a seaman perform the work of a vessel.” McDermott Int’l., Inc. v. Wilander,

498 U.S. 337, 355, (1991) (emphasis added).

purpose or state of transit at a particular moment.” 543 U.S. at 497 (emphasis added).4 In

Lozman v. City of Riviera Beach, 568 U.S. 115 (2013), the Supreme Court considered whether a

floating home was a vessel. Therefore, the Court further refined the definition by focusing on

the craft’s practical capacity as “a means of transportation on water.” The Court stated, “in our

view a structure does not fall within the scope of this statutory phrase unless a reasonable

observer, looking to the home's physical characteristics and activities, would consider it designed

to a practical degree for carrying people or things over water.” Id. at 121.

B. VESSEL “IN NAVIGATION”

As to the requirement that the vessel be “in navigation,” the Court in Stewart made clear

that this phrase was not to be literally applied.

Granted, the Court has sometimes spoken of the requirement that a vessel be “in

navigation,” but never to indicate that a structure's locomotion at any given moment

mattered. Rather, the point was that structures may lose their character as vessels if

they have been withdrawn from the water for extended periods of time. The Court

did not mean that the ‘in navigation’ requirement stood apart from § 3, such that a

‘vessel’ for purposes of § 3 might nevertheless not be a “vessel in navigation” for

purposes of the Jones Act or the LHWCA.

Instead, the “in navigation” requirement is an element of the vessel status of a

watercraft. It is relevant to whether the craft is ‘used, or capable of being used’ for

maritime transportation. A ship long lodged in a drydock or shipyard can again be

put to sea, no less than one permanently moored to shore or the ocean floor can be

cut loose and made to sail. The question remains in all cases whether the

watercraft's use ‘as a means of transportation on water’ is a practical possibility or

merely a theoretical one.”

Stewart, 543 U.S. 481, 496 (internal citations omitted).

C. “IDENTIFIABLE FLEET” OF VESSELS

Workers who are not assigned to a single vessel but perform a seaman’s duties aboard

multiple vessels may qualify for seaman status when the vessels are commonly owned or

4 “The question remains in all cases whether the watercraft's use ‘as a means of transportation on water’ is a practical

possibility or merely a theoretical one.” Stewart, 543 U.S. at 496.

controlled. “An important part of the test for determining who is a seaman is whether the injured

worker seeking coverage has a substantial connection to a vessel or a fleet of vessels, and the

latter concept requires a requisite degree of common ownership or control.” Harbor Tug and

Barge Co. v. Papai, 520 U.S. 548, 560 (1997).

D. CONTRIBUTION TO FUNCTION OR MISSION OF VESSEL OR

FLEET

As to the first prong of the Chandris test, requiring that the worker’s duties contribute to

vessel’s function or mission, the Supreme Court specifically rejected the notion that one must

“hand, reef or steer” the vessel, i.e. aid in its navigation, in order to be a seaman. McDermott

International, Inc. v Wilander, 498 U.S. 337, 343, 355 (1991). Meeting this part of the test “is

relatively easy: the claimant need only show that he does the ship’s work.” Naquin, 744 F.3d at

933 (quoting Becker, 335 F.3d at 387). “This threshold requirement is ‘very broad,’

encompassing ‘all who work at sea in the service of a ship.’” Becker, 335 F.3d at 388 (quoting

Chandris, 515 U.S. at 368). “It is difficult to imagine a case in which a worker performs

substantial work on a vessel without contributing to its mission.” THOMAS M. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW, § 6:9 (6th ed. 2018).

A wide variety of occupations different from traditional seaman’s work have been found

to meet this part of the test: for example, in Wilander, 498 U.S. at 343, 355, plaintiff was a

painter foreman supervising the sandblasting and painting of piping on oil drilling rigs in the

Persian Gulf. In Grab v. Boh Brothers Construction Co., 506 F. App’x. 271 (5th Cir. 2013), iron

workers involved in a major bridge construction project over Lake Pontchartrain were found to

be seaman.

The second prong of the test focuses on the worker’s connection to the vessel or fleet of

vessels.

The purpose of the substantial connection requirement is to “separate the sea-based

maritime employees who are entitled to Jones Act protection from those land-based

maritime 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.”

Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 F. App’x 93, 95 (5th Cir. 2009) (quoting

Chandris, Inc, 515 U.S. at 368).

The connection must be “substantial in terms of both duration and nature.” Naquin, 744

F.3d at 933 (quoting Chandris, Inc., 515 U.S. at 368). “Thus, a worker seeking seaman status

must separately demonstrate that his connection to a vessel or fleet of vessels is, temporally,

more than fleeting, and, substantively, more than incidental. These inquiries are not always

distinct but are interrelated elements of the same substantial connection requirement.” Id. at 933.

E. SUBSTANTIAL IN DURATION

When considering the duration element, “[w]here the worker divides his time between

vessel and land, an employee can only establish the requisite connection to a vessel—and thus

qualify as a seaman—if he spends a substantial portion of his time in service of the vessel.” Grab

v. Boh Bros. Const. Co., 506 F. App’x 271, 277 (5th Cir. 2013). To measure the substantiality of

the worker’s vessel-based work, the Court in Chandris adopted the Fifth Circuit’s 30%

guideline: where a worker divides his time between land-based and vessel-related service, “[a]

worker who spends less than 30% of his time in the service of a vessel in navigation should not

qualify as a seaman under the Jones Act.” Chandris, 515 U.S. at 371.

Ordinarily, when determining the percentage of a plaintiff’s vessel-based work, the Court

looks to the “entire length of a plaintiff’s employment with the defendant.” Zertuche, 306 F.

App’x at 96. But there is an exception to this general rule, “[w]hen a maritime worker’s basic

assignment changes.” Chandris, 515 U.S. at 372; see also Becker, 335 F.3d at 389; Zertuche, 306

F. App’x at 95-96. “If a maritime employee receives a new work assignment in which his

essential duties are changed, he is entitled to have the assignment of the substantiality of his

vessel-related work made on the basis of his new position.” Chandris, 515 U.S. at 372. Stated

another way, where the worker’s employer reassigns him “to a new position” that represents a

“substantial” or “fundamental” change in status, then only the time spent in his new position will

be considered in determining whether the temporal requirement is met. Becker, 335 F.3d 389-90.

This is sometimes called the “change-of-assignment doctrine.” David W. Robertson & Michael

F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the

Fifth and Eleventh Circuits, 36 TUL. MAR. L.J. 425, 489-90 (2012).

There is no bright line rule regarding when a new assignment involves a change so

substantial, fundamental or permanent as to limit the Court’s consideration of the employee’s

vessel-related work to the new assignment. This is because, as the Fifth Circuit has said,

how long a seaman’s status continues after a shoreside assignment is itself a fact

question dependent on such factors as the duration of the assignment, its

relationship to the employer’s business, whether the employee was free to accept

or reject it without endangering his employment status and any other factors

relevant to the ultimate inquiry: at the moment of injury was the employee a seaman

by conventional Jones Act criteria who happened not to be on navigable waters, or

was he at that time no longer a seaman whatever his past relationship or his future

prospects?

Guidry v. S. Louisiana Contractors, Inc., 614 F.2d 447, 453 (5th Cir. 1980).

While it is not entirely clear, there is some suggestion in Fifth Circuit jurisprudence that

the new assignment must be permanent in order to limit the Court’s duration-related inquiry to

the time spent in the employee’s new assignment. In Becker v. Tidewater, Inc., 335 F.3d 376 (5th

Cir. 2003), the court summarized what plaintiff was required to prove in order to establish that he

“underwent a change in status and became a seaman[:]… that (i) when plaintiff was assigned to

the REPUBLIC TIDE, he was removed from his former position of land-based intern and

assigned to a new, sea based position, (ii) this reassignment permanently changed his status, and

(iii) by serving in this new position, plaintiff would spend at least 30% of his time aboard a

vessel.” Becker, 335 F.3d at 390 (emphasis added).

As Judge Doherty wrote in Sepulvado v. Alpha Drilling, LLC, 730 F. Supp. 2d 591, 598

(W.D. La. 2010), “[a]lthough the Supreme Court in Chandris did not explicitly state the changes

to the maritime worker’s basic assignment must be ‘permanent,’ the Fifth Circuit in Becker

appears to have read a ‘permanent change’ requirement into the Chandris’ exception to the

general rule…” Judge Doherty’s reading of Becker is supported by the Fifth Circuit’s summary

of Becker’s holding in Zertuch. There the court said, “We concluded that Becker did not fit into

the exception for permanently reassigned employees because he was only temporarily assigned

to the vessel and would have returned to land-based work immediately after the voyage.”

Zertuch, 306 F. App’x at 96 (emphasis added); see also Ross v. W&T Offshore, Inc., 357 F.

Supp. 3d 554, 564 (E.D. La. 2018) (granting employer’s summary judgment motion on seaman

status based on uncontroverted record evidence that plaintiff had been permanently reassigned to

a non-vessel).

F. SUBSTANTIAL IN NATURE

The worker’s connection to the vessel or fleet must also be substantial “in nature.”

Chandris did not define the phrase “substantial in nature” or provide a test to measure when this

element is met. This is because the inquiry into whether the worker’s vessel-related connection is

substantial in nature “is necessarily fact specific, as it ‘will depend on the nature of the vessel

and the employee’s precise relationship to it.’ ” Philip v. Hornbeck Offshore Services, L.L.C.,

137 F. Supp. 3d 936, 945, (E.D. La. 2015) (quoting Chandris, 515 U.S. at 371 (quoting

Wilander, 498 U.S. at 356)).

However, gloss by the Supreme Court in Harbor Tug and Barge Co. v. Papai, 520 U.S.

548, 555 (1997) provided a clue to the meaning of “substantial in nature” when it stated, “[f]or

the substantial connection requirement to serve its purpose, the inquiry into the nature of the

employee's connection to the vessel must concentrate on whether the employee's duties take him

to sea.” But the Fifth Circuit has made clear that the phrase “take him to sea,” is a term of art and

not to be applied literally. In re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000) involved a crane

operator assigned to a derrick barge in the Mississippi River. The district court granted the

employer’s motion for summary judgment on seaman status, finding the plaintiff worker’s

connection to the barge was not substantial in nature because his duties did not “take him to sea.”

Id. at 288. The Fifth Circuit reversed, holding that,

when read in context, the ‘going to sea’ passage in Harbor Tug is a shorthand way

of saying that the employee’s connection to the vessel regularly exposes him ‘to

the perils of the sea.’ Harbor Tug, 520 U.S. at 554-55, 117 S.Ct. 1535 (quoting

Chandris, 515 U.S. at 368, 115 S.Ct. 2172). In other words, we do not think that

the Harbor Tug Court intended to articulate a new and specific test for seaman

status.

In re Endeavor Marine, 234 F.3d at 291.

The Court held that “…the district court incorrectly concluded that [plaintiff] is not a

Jones Act seaman merely because his duties do not literally carry him to sea.” (Id. at 292.) The

Court found that the phrase “perils of the sea” was not to applied literally since the Court held

that the plaintiff, a crane operator on a crane barge in the Mississippi River “was regularly

exposed to the perils of the sea.” Id.

Despite the clarity of the decision in Endeavor Marine, the defendant-employer in

Naquin made much the same argument as had been made by the defendant in Endeavor Marine.

“…[The employer] emphasizes that [the plaintiff] rarely was required to spend the night aboard a

vessel, that the vessels he worked upon were ordinarily docked, and that he almost never

ventured beyond the immediate canal area or into the open sea.” Naquin, 744 F.3d at 934. But

the Court again rejected the importance of these factors. “[C]ourts have consistently rejected the

categorical assertion that workers who spend their time aboard vessels near the shore do not face

maritime perils. While these near-shore workers may face fewer risks, they still remain exposed

to the perils of a maritime work environment.” Id. The Court emphasized that “we have dozens

of cases finding oilfield workers and other ‘brown-water’ workers on drilling barges and other

vessels qualified as seamen even though they spent all their work time on these vessels

submerged in quiet inland canals and waterways. Accordingly, we conclude that Naquin’s

connection to the [employer’s] vessel fleet was substantial in terms of nature.” Id. at 935.

IV. APPLICATION

A. ISSUES TO BE DECIDED

Defendants concede that Plaintiff was a seaman when he worked as a deckhand aboard

CBC’s tugs. (Doc. 10-2 at 17) (“…Plaintiff was once the member of a vessel crew when he was

deckhand on CBC tugs…”); see also id. at 3 (“Plaintiff was first hired to work for CBC in 2015

as a deckhand, a position in which he worked for approximately 3 years, and was assigned to a

CBC tug.”)). Defendants do not contest that the barges upon which Plaintiff worked as a barge

readiness technician were “vessels.”5 Defendants do not contest that these vessels were “in

navigation” despite being docked for most of the time that Plaintiff worked on them as a barge

readiness technician. Finally, Defendants do not dispute that the barges upon which Plaintiff

worked constituted an “identifiable fleet,” within the meaning of Harbor Tug since they were all

owned or controlled by CBC. (Doc. 10-1 at 2-3, ¶¶ 7-13.)

5 Nor could they in good faith. See, e.g., Starks v. Advantage Staffing, LLC, 202 F. Supp. 3d 607, 612-13 (E.D. La. 2016)

(noting that Stewart “cited two precedential cases treating barges or watercraft comparable to barges as ‘vessels.’ ”

(citing Stewart, 538 U.S. at 492 n.6)).

Rather, Defendants argue that when Plaintiff left his position as a deckhand and became a

barge readiness technician, his new position represented a substantial, fundamental and

permanent change such that only the time spent in his new position may properly be considered

in deciding whether he meets the temporal requirement for seaman status. Defendants urge that,

when so considered, Plaintiff is unable to establish that his connection to CBC vessels was

substantial in duration or nature, and therefore, summary judgment is appropriate.

Plaintiff disputes that his job change was permanent, and therefore, his entire

employment with CBC must be considered. When so considered, well over 30% of Plaintiff’s

time with CBC was as a seaman, and therefore, summary judgment is inappropriate. In the

alternative, Plaintiff argues that even if the Court considers only his time as a barge readiness

technician, he still meets the test for seaman status or, at the very least, substantial questions of

fact on this issue preclude the granting of summary judgment.

Thus, there are two main questions presented. First, did Plaintiff’s job change from

deckhand to barge readiness technician represent a substantial, fundamental and permanent

change in employment such that the Court should consider only his work as such in evaluating

his relative time doing seaman’s work? Second, if so, are there questions of fact regarding his

new job such that a reasonable jury might find Plaintiff to be a seaman?

B. WAS PLAINTIFF’S JOB CHANGE SUBSTANTIAL,

FUNDAMENTAL AND PERMANENT?

Plaintiff was originally hired in September of 2015 as a deckhand and member of the

crew of the CBC’s tug M/V Frank J. Golemi. (Doc. 14-2 at 6.) His duties included handling

lines, building tow, cleaning, paint chipping, inspecting the barges, inspecting running lights, and

standing watch. (Doc. 10-4 at 9-11.) In addition, he ensured that both tug and her tow were

seaworthy, traveled with and worked on the tugs, and took his instructions from the captain of

the tug. (Id. at 11.) He worked a hitch of 28 days on and 28 days off (Id. at 6), worked a six-hour

watch (Id. at 16), and ate his meals and slept on the vessel during his 28-day hitches (Id. at 7).

In or around December of 2017, Plaintiff applied to work as a barge readiness technician.

(Doc. 10-4 at 10.) While Defendants represent in their Statement of Uncontested Facts that

“Plaintiff requested a permanent transfer to the shoreside department…” (Doc. 10-1 at 6, ¶ 35;

emphasis added (citing Doc. 10-4 at 20-21; see also, Doc. 10-2 at 13 (“…when he transferred to

the shoreside department, and was moved to the barge readiness department, his status

permanently changed.” (emphasis added)), the cited pages do not support this statement; rather,

the opposite is true. According to Plaintiff, his ultimate goal was to become a tankerman, but he

was told that he would need to work as a barge readiness technician for a year before he could

apply for the tankerman’s job. (Doc. 10-4 at 21.) He testified he enjoyed working on boats and

did not want to work shoreside (id.) but understood that this transfer was necessary in order to

ultimately be transferred to a tankerman’s position. When asked why he applied for the position

of barge readiness technician, Plaintiff said, “Again, it meant a better future. They told me after I

do a year of that, I could become a tankerman.” (Id. at 2, 21.) Defendants concede as much in

briefing. (Doc. 10-2 at 8.)

After becoming a barge readiness technician, some, but not all, of Plaintiff’s job duties

and conditions changed. Plaintiff would arrive each day from his home, perform his work and

return home in the evening. (Doc. 10-1 at 3, ¶¶ 14-15.) He was paid by the hour and reimbursed

his mileage. (Doc. 10-1 at 6, ¶ 33 (citing Doc. 10-4 at 18-19).) Some of Plaintiff’s work was

performed in the warehouse and included loading and unloading materials coming into and out

of the warehouse. (Doc. 10-1 at 3, ¶ 11.)

However, “Plaintiff and other barge readiness technicians spent the majority of their time

inspecting and maintaining moored CBC barges at the McKinney Fleet, at shipyards, and at other

fleeting areas on the Mississippi River to ensure the barges were ready to be taken by tug to a

customer facility for loading or discharging cargo.” (Id. at 3, ¶ 13, citing Doc. 10-6 at 10, 13-14.)

Once at work, he was taken by tug to the barges he was to inspect. (Id. at 3, ¶ 18, citing

Doc. 10-4 at 33; Doc. 10-6 at 15-16.) He inspected for barge damage, checked oil and water

levels and inspected the barges’ pumping engines. (Id. at 4 ¶ 21, citing Doc. 10-4 at 27-32; Doc.

10-5 at 8-9.) He performed certain kinds of repair work needed on the barges including pumping

water out of cargo holds, repairing damaged hatches and dogs, cleaning stains on the decks,

fixing broken winch cables and replacing missing scupper plugs.6 (Id. at 4 ¶ 23, citing Doc. 10-4

at 15, 23 and 30.)

In his new job, he continued at times to do many of the jobs he had performed as a

deckhand: he built tow (Doc. 14-2 at 12); helped put out running lights (id. at 13); assisted with

the shifting of barges (id. at 23-24); inspected barges for damage (id. at 20); pumped water from

the hatches (id. at 18); and cleaned barge decks (id. at 21). Plaintiff kept his tools on the tug.

(Doc. 10-4 at 31.) He would sometimes bring groceries to the tug’s crew and occasionally had a

meal on the tug. (Doc. 10-4 at 45; see also, Doc 10-7 at 11-12.) At times, Plaintiff would help

move the barges (Doc. 10-4 at 46) and would sometimes be on the barges as they were being

shifted within the fleet. (Id. at 26.) At times, he would handle lines or tie up barges. (Id. at 12,

46.)

The Court finds that there are substantial questions of fact whether Plaintiff’s job change

was, or was not, such that only his new job duties as a barge readiness technician can be

6 The Fifth Circuit has declared that “vessel repair is classic seaman’s work…” Naquin, 744 F.3d at 934.

considered in weighing the amount of time he performed vessel-related work. If, to trigger the

change-of-assignment doctrine, the job change must have been permanent, as suggested by the

Fifth Circuit in Becker and Zertuche, there is evidence that this was not the case. Plaintiff

testified that his time as barge readiness technician was only a temporary step required by

Defendants in order to become a tankerman, which can be a seaman’s job. See, e.g. Kratzer v.

Capital Marine Supply, Inc., 490 F. Supp. 222, 225 (M.D. La. 1980), aff’d, 645 F.2d 477 (5th

Cir. 1981; Wuestewald v. Foss Marine, 319 F. Supp. 2d 1002, 1007 (N.D. Cal. 2004); Elmadari

v. Bell S.S. Co., 2:99 cv 1632, 2000 WL 33302240 at * 11 (E.D. Va. June 28, 2000).

But even if permanency of the new job is not required for the doctrine to apply, there are

still significant fact questions regarding whether his job change was so “substantial” and

“fundamental” as to require the Court to consider only the time spent in his new assignment. It is

true that, in his new job, he was no longer living and working only on tugs and their tows, and

his new duties included some land-based work, including working in the warehouse. But

Defendants concede his new assignment as a barge readiness technician required Plaintiff to

continue to spend the “vast majority” of his work-time on vessels in navigation. (Doc. 15 at 8;

see also Doc. 10-1 at 3, ¶ 13; Doc. 10-5 at 15.)

According to Plaintiff, as set forth above, he continued to perform many of the same

duties in his new job that he had performed in the old. In short, as is explained in greater detail in

the next section, there are important fact questions regarding Plaintiff’s status in his new job and

the Court concludes that a reasonable jury could conclude that, even after his reassignment, he

continued to qualify as a seaman.

The Court finds particularly persuasive Sepulvado v. Alpha Drilling, LLC, 730 F. Supp.

2d 591 (W.D. La. 2010). In Sepulvado, after having suffered a serious injury, Plaintiff received

notice that he was being “reassigned from [defendant’s] barge rig operations to our land/office

operations. This is effective immediately and is a permanent reassignment.” 730 F. Supp. 2d at

594 (quoting record evidence). Some fifteen months later, while working as a galley hand on a

land rig, he was injured on land while unloading a cooler from the back of a flatbed truck. Like

Defendants in this case (Doc. 10-2 at 12), defendant in Sepulvado cited Guidry v. S. Louisiana

Contractors, Inc., 614 F.2d 447 (5th Cir. 1980), and argued that “its notice to plaintiff stating he

had been permanently reassigned to land duties, coupled with the fact that plaintiff had worked

solely on land for fifteen months prior to his second injury, terminated plaintiff’s status as a

seaman.” 703 F. Supp. 2d at 601.

The plaintiff countered that “it was his understanding his assignment to land based work

was only temporary” until a crane operator position became available on the barge and that the

defendant had continued to pay him as a crane operator.” (Id. at 602). The Court concluded that

[w]ere this Court to determine which interpretation of the facts is correct, by way

of this motion for summary judgment, it would usurp the role of the jury in this

matter as the finder of fact. Since more than one conclusion could reasonably be

drawn concerning plaintiff’s seaman’s status from these facts, partial summary

judgment is not appropriate.

Id. at 602-03; see also Billiot v. Key Energy Servs., No. 09-1023, 2011 WL 1841433 (W.D.

La. May 12, 2011) (denying summary judgment on seaman status based on conflicting

evidence as to whether reassignment was temporary or permanent.)

The cases cited by Defendants (Doc. 10-2 at 12-13) are not persuasive. While Defendants

point to Sepulvado, as already discussed, this case supports denial of Defendants’ motion. As

pointed out by the Court in Sepulvado, the language relied upon by the defendant in Guidry v. S.

Louisiana Contractors, Inc., supra, (and relied upon by Defendants here), “was stated in the

context of the appellate court’s review of the trial court’s issuance of a directed verdict in favor

of defendant, after hearing the evidence at trial.” 739 F. Supp. 2d at 601. By contrast, the issue

before the Court in Sepulvado and the Court here is in the context of a summary judgment

motion.

White v. Louisiana Menhaden Co., Inc., 498 F. Supp. 126 (E.D. La. 1980) is totally

inapposite in that the plaintiff there was suing his current employer but basing his seaman’s

claim on work as a seaman performed for a prior employer. See id. at 129 (“Thus, the same

employer was not moving plaintiff from a traditional seaman's job to a temporary land side task,

as in Higginbotham and Guidry. Instead, plaintiff changed employers, from Mayport to

Menhaden, and changed job responsibilities and duties.”).

McInnis v. Parker Drilling Co., 04-1887 (La. App. 4 Cir. 6/1/05); 905 So.2d 1153,

affirmed a fact finding by the trial court, after a full trial on the merits, that the plaintiff had been

permanently reassigned to a new job which contained no vessel-related duties. 905 So.2d at 1159

(“It is undisputed in the instant case that all of the plaintiff duties in his new work assignment to

Platform Rig–3 were non-vessel-related. Coupling this undisputed fact with the trial court's

finding (which this Court may not overturn in the absence of manifest error) that the plaintiff's

reassignment to Platform Rig–3 was permanent, compels the conclusion that the plaintiff was not

a seaman at the time of his injury regardless of whether he may have qualified as such

immediately prior thereto.”). Here of course, there has been no trial on the merits, and there are

disputed facts raised in opposition to the motion for summary judgment.

In their reply, Defendants point the Court to Smith v. Nicklos Drilling Company, 841 F.2d

598 (5th Cir. 1988). (Doc. 15 at 3.) Again, the facts there are fundamentally different than those

before this Court. In Smith,

[n]either of Smith's assignments required him to divide his time between vessel and

land; rather, both his work location and status were permanently changed when the

floating rig on which he had worked was decommissioned. Smith argues that the

permanency of this change should have been a fact for the jury to decide. The

permanency, however, was undisputably established when the old barge rig was

finally removed from service; he was never to return to the status of crewmember

on that vessel.

Smith, 841 F.2d at 599. Here, of course, Plaintiff’s new assignment required him to divide his

time between land and vessels, the “vast majority” of that time being on vessels. Further, there is

record evidence that Plaintiff’s new assignment was only temporary, an intermediary step to a

tankerman’s position.

In summary, there are multiple fact issues here including the issue of whether Plaintiff’s

assignment was temporary or permanent. If the jury were to conclude, as it reasonably could, that

the change-of-assignment doctrine does not apply, and even if the Court were to consider the

entire year he was to act as a barge readiness technician, Plaintiff still would have spent

approximately 2/3 of his time as a seaman over the course of his entire employment, well over

the 30% required to survive summary judgment. Thus, summary judgment on this aspect of

Defendants’ motion is inappropriate and is denied.

C. ARE THERE FACT QUESTIONS REGARDING PLAINTIFF’S

SEAMAN STATUS AS A BARGE READINESS TECHNICIAN?

Defendants argue that when Plaintiff became a barge readiness technician, he lost his

status a seaman. Plaintiff argues that while his new job no longer required him to do the work of

a deckhand assigned to a tug, he nonetheless performed enough vessel-related work to qualify as

a seaman. At the very least, argues Plaintiff, there are questions of fact which make this issue a

jury question. The Court agrees with Plaintiff and concludes that, even if the Court were to hold

that the change of assignment doctrine applied as a matter of law, there are still significant fact

questions as to Plaintiff’s status which preclude the granting of summary judgment.

Returning to the first prong of Supreme Court’s test for seaman status, there is no doubt

that Plaintiff’s work as a barge readiness technician contributed to the function of the fleet of

vessels he serviced. According to Defendants,

Plaintiff and other barge readiness technicians spent the majority of their time

inspecting and maintaining moored CBC barges at the McKinney Fleet, at

shipyards, and at other fleeting areas on the Mississippi River to ensure the barges

were ready to be taken by tug to a customer facility for loading or discharging cargo.

(Id. at 3, ¶ 13.) More specifically, once at work, Plaintiff was taken by tug to the barges he was

to inspect. (Id. at 3, ¶ 18, citing Doc. 10-4 at 33; Doc. 10-6 at 15-16.) Once on the barges, he

inspected for barge damage, checked oil and water levels and inspected pumping engines. (Id. at

4 ¶ 21, citing Doc. 10-4 at 27-32; Doc. 10-5 at 8-9.) He performed certain kinds of repair and

maintenance work needed on the barges including pumping water out of cargo holds, repairing

damaged hatches and dogs, cleaning stains on the decks, fixing broken winch cables and

replacing missing scupper plugs. (Id. at 4 ¶ 23, citing Doc. 10-4 at 15, 23 and 30.)

Furthermore, in his new job, he continued at times to do many of the jobs he had

performed as a deckhand: he built tow (Doc. 14-2 at 12); helped put out running lights (id. at 13);

assisted with the shifting of barges (id. at 23-24); inspected barges for damage (id. at 20);

pumped water from the hatches (id. at 18); and cleaned barge decks (id. at 21). Plaintiff kept his

tools on the tug. (Doc. 10-4 at 31.) He would sometimes bring groceries to the tug’s crew and

occasionally had a meal on the tug. (Doc. 10-4 at 45; see also, Doc 10-7 at 11-12.) At times,

Plaintiff would help move the barges (Id. at 46) and would sometimes be on the barges as they

were being shifted within the fleet. (Id. at 26.) At times, he would handle lines or tie up barges.

(Id. at 12, 46.)

As to the substantial connection “in duration” requirement, Defendants acknowledge that

after his change of job to barge readiness technician, “the majority of [Plaintiff’s] time [was

spent] maintaining and inspecting” the barges in the fleet. (Doc. 10-1 at 3, ¶ 13.) Indeed, they

concede it was the “vast majority” of his time. (Doc. 15 at 8; emphasis added.) This far exceeds

the 30% “necessary to allow submission of the issue of seaman status to a jury…” Becker v.

Tidewater, Inc., 335 F.3d 376, 388 (5th Cir. 2003).

Nonetheless, Defendants argue that Plaintiff’s connection to the fleet was not “substantial

in nature.” In support of this position, Defendant maintains that “Plaintiff was engaged in shore-

based longshore work inspecting and maintaining moored barges to ensure they were ready to be

loaded and unloaded. The LHWCA specifically provides coverage for employees engaged in

such work and expressly identifies ‘ship repairm[e]n’ as subject to its coverage.” (Doc. 15 at 4;

citations omitted.) Defendants’ argument ignores the language and holding in Naquin where an

identical argument was rejected by the Fifth Circuit.

Specifically, EBI argues that because Naquin is a land-based ship-repairman, he is

not connected to vessels in navigation and cannot qualify as a seaman.

In support of its argument that Naquin is not a seaman, EBI primarily argues that

Naquin is a land-based repairman who performs classic land-based harbor worker

duties. As EBI points out, the Jones Act's land-based worker counterpart, the

Longshore and Harbor Worker's Compensation Act (“LHWCA”) expressly

identifies “ship repairm[e]n” as subject to its coverage. Because the LHWCA and

Jones Act are mutually exclusive compensation schemes, EBI argues, Naquin's

coverage under the LHWCA precludes his coverage under the Jones Act.

A few years ago, we agreed with EBI's position. However, the Supreme Court

rejected this position and overruled our decision in Pizzitolo in Southwest Marine,

Inc. v. Gizoni 502 U.S. 81, 87-88, 112 S. Ct. 486, 116 L.Ed.2d 405 (1991). There,

the Court clarified that the Jones Act covers any worker who qualifies as a

“seaman,” without regard to whether a worker may also qualify for coverage under

the LHWCA. This is true even in the case where a worker's job is specifically

identified for coverage under the LHWCA. Thus, the fact that Naquin performed

ship repair duties (identified as covered by the LHWCA) cannot distract us from

the threshold inquiry: whether Naquin first qualifies as a seaman.

Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 932 (5th Cir. 2014) (citations omitted).

Chandris held that “[T]his second prong constitutes a ‘status-based’ standard –

i.e. ‘it is not the employee’s particular job that is determinative [of seaman status], but the

employee’s connection to the vessel.’ ” Becker, 335 F.3d at 388 (quoting Chandris, 515

U.S. at 364). “As a result, the [Chandris] Court speculated that under this standard, even

a ship repairman, who may know nothing about boating or sailing could qualify as a

seaman.” Id. (citing Chandris, 515 U.S. at 363-64).

As discussed earlier, the “substantial in nature” part of the test is sometimes measured by

evaluating the worker’s exposure to what the Fifth Circuit in Naquin called “maritime perils,”

Naquin, 744 F.3d at 934, 935, or “perils of a maritime work environment,” id. at 934, a more

accurate phrase than the misleading term, “perils of the sea.” Here, Defendants argue that

“[n]one of Gage’s work was of a seafaring nature. His duties regarding barges were limited to

inspection, maintenance, and repair while the barges were docked. The hazards he faced were

not ‘perils of the sea’ but instead were hazards all longshoreman face while working on the

waterfront.” (Doc. 10-2 at 18-19; see also Doc. 15 at 4.)

Again, Defendants ignore the language and holding of Naquin which stated explicitly,

[C]ourts have consistently rejected the categorical assertion that workers who spend

their time aboard vessels near the shore do not face maritime perils. While these

near-shore workers may face fewer risks, they still remain exposed to the perils of

a maritime work environment.

744 F.3d at 934.

The Court emphasized that:

we have dozens of cases finding oilfield workers and other “brown-water” workers

on drilling barges and other vessels qualified as seamen even though they spent all

their work time on these vessels submerged in quiet inland canals and waterways.

Accordingly, we conclude that Naquin’s connection to the EBI vessel fleet was

substantial in terms of nature.

Id. at 935.

Defendants attempt to distinguish Naquin because “Naquin was occasionally dispatched

to repair vessels or fill in as a crane operator while the vessel was operating in open water and he

often rode with the vessels, whereas Gage exclusively worked on vessels that were moored in the

fleeting areas or at shipyards.” (Doc. 10-2 at 16.) But this argument disregards record evidence

that Plaintiff would sometimes be on the barges as they were being shifted within the fleet (Doc.

10-4 at 33), and that he was taken by tug every day to the barges he was to work on. (Doc. 10-1,

at 3, ¶ 18, citing Doc. 10-4 at 33; Doc. 10-6 at 16.)7 More fundamentally, however, the

differences between the facts here and those in Naquin are differences in degree and do not

eliminate the proper role of the jury in weighing and resolving these fact questions.

Furthermore, this Court’s analysis is supported by other district court opinions applying

Naquin. In Starks v. Advantage Staffing, LLC., 202 F. Supp. 3d 607 (E.D. La. 2016), plaintiff

was a contract laborer who worked on a “loading rig” at an unloading facility on the Mississippi

River. Id. at 608-09, 612-13. After grain barges were unloaded by way of a conveyor, a bobcat

located on the loading rig would be lowered into the hopper of a grain barge by way of a lift, also

located on the loading rig. Once inside the hopper, the plaintiff would use the bobcat to clear the

remnants of the grain from the grain barge. Id.

In support of their motion for summary judgment on seaman status, the defendants in

Starks made arguments similar to those made by Defendants here. In rejecting those arguments,

the Court said:

Defendants next argue that Starks' connection to the grain barges at issue in this

case was not sufficiently substantial in nature. Specifically, defendants argue that

7 The fact that these duties may have been performed sporadically does not render them meaningless for purposes of

raising a fact question for the jury. “Because [plaintiff] testified he completed vessel crew tasks ‘at times’ and on more

than one occasion, the factual determinations of whether and how often [defendant] assigned such tasks to [plaintiff] is

germane to the analysis of the nature of [plaintiff’s] connection to the [defendant’s] vessels.” Philip v. Hornbeck

Offshore Services, L.L.C., 137 F. Supp. 3d 936, 947 (E.D. La. 2015).

Starks' work aboard the grain barges in question did not expose him to the “perils

of the sea.” Defendants' argument hinges primarily on the Supreme Court’s 1997

decision in Harbor Tug and Barge Co. v. Papai and a variety of non-binding

authority. In Harbor Tug, the Court noted that the “nature” inquiry “must

concentrate on whether the employee’s duties take him to sea.” Defendants contend

Fifth Circuit precedent created in the wake of Harbor Tug may not require that a

plaintiff actually go to sea; however, [it] has reaffirmed that a plaintiff must be

regularly exposed “to the special hazards and disadvantages to which they who go

down to sea in ships are subjected.”

Defendants (and Starks) fail to address the Fifth Circuit’s 2014 decision in Naquin

v. Elevating Boats, L.L.C. The Fifth Circuit in Naquin expressly held that a plaintiff

need not literally work on the open sea in order to qualify as a seaman. The vessel

repairman plaintiff in Naquin, “ordinarily” serviced vessels while they were

anchored or docked and only occasionally serviced vessels while they were moved

within a canal or on open water. Addressing the defendant's argument that the

plaintiff performed “classic land-based harbor worker duties” and was not

sufficiently exposed to the perils of the sea, the Naquin court stated that “courts

have consistently rejected the categorical assertion that workers who spend their

time aboard vessels near the shore do not face maritime perils.”

The Naquin court concluded that it did not matter that the plaintiff in question “was

rarely required to spend the night aboard a vessel, that the vessels he worked upon

were ordinarily docked, and that he almost never ventured beyond the immediate

canal area or onto the open sea.” The Court noted that certain “traditional

longshoreman work...may qualify for seaman status” where the plaintiff can

establish “the requisite employment-related connection to the vessel.” The Naquin

court clearly indicated that the key inquiry is whether the worker is “exposed to the

perils of a maritime work environment.”

Here, the Court concludes, in light of Naquin, that Starks has adequately established

that his work involved a substantial connection in nature to the barges in question.

It does appear that Starks worked aboard the barges only while they were connected

to the loading rig’s conveyor system; however, the Court finds the activity of

clearing grain from inside a barge’s hopper to be sufficiently analogous to the sort

of work performed by the plaintiff in Naquin. Starks' work inside the grain barges

exposed him to the perils of a maritime work environment. The Court therefore

concludes that Starks’ connection to the barges in question could be sufficiently

substantial in nature to satisfy the test laid out in Chandris.

Starks, 202 F. Supp. 3d at 613–14 (citations omitted).

In Haas v. Beatty Street Properties, Inc., No. 3-13-CV-302, 2014 WL 2932258 (S.D.

Tex. June 27, 2014), the defendant employer moved for summary judgment on the issue of

seaman status. The plaintiff was an assistant port engineer responsible for maintaining the

mechanical systems on defendant’s boats. Id. at *1. The vessels on which he worked were

docked approximately 60% of the time and in motion approximately 40% of the time. Id. The

Court phrased the issue as follows: “The question presented in this maritime dispute is whether a

plaintiff who spends a majority of his employment maintaining and repairing boats that are

docked on the water is a seaman under the Jones Act.” Id.

In answering that question, Judge Costa wrote:

Naquin is indistinguishable, in any meaningful sense, from this case. Indeed,

[defendant] makes the same point in its summary judgment motion—[plaintiff] did

not engage in the type of work that would subject him to actual maritime dangers—

that Judge Jones made in her dissent in Naquin. Judge Jones argued that the

majority “cit[ed] no facts showing that Naquin, who spent nearly all of his time on

boats moored to a dock, faced any maritime perils in the ordinary course of his

duties.” [Naquin, 744 F.3d at 943] (Jones, J., dissenting) (emphasis omitted).

[Plaintiff] too spent “nearly all of his time on boats moored to a dock,” and under

Naquin, that fact, combined with his line of work, gets him past summary judgment.

Haas, 2014 WL 2932258, at *2 (citations omitted).

The Court finds the cases cited by the Defendants are distinguishable or were decided

before and are inconsistent with Naquin. Richard v. Mike Hooks, Inc., 01-0145 (La. 10/16/01);

799 So.2d 462 was not decided at the summary judgment stage but, rather, after a trial on the

merits of the seaman status issue. And, as stated by the Court in distinguishing the plaintiff’s

cases, “[w]hile some of the facts in [these cases] may be similar to some facts in this case, the

totality of the circumstances are distinguishable. The determination of seaman status is

inherently fact intensive, and each case must be decided under the facts presented therein.” Id. at

467.

Saienni v. Capital Marine Supply, No. 02-2509, 2005 WL 940558 (E.D. La. 2005)

granted summary judgment to an employer on the issue of seaman status. While there are

similarities with the present case, there are also differences. According to Plaintiff in this case, in

addition to doing repairs on the CBC vessels, he sometimes performed duties that were akin to

those of a traditional deckhand. He inspected the barge damage, checked oil and water levels and

inspected pumping engines. (Doc. 10-1 at 4, ¶ 21, citing Doc. 10-4 at 27-32; Doc. 10-5 at 8-9.)

He did minor repair work needed on the barges including pumping water out of cargo holds,

repairing damaged hatches and dogs, cleaning stains on the decks, fixing broken winch cables

and replacing missing scupper plugs. (Id. at 4 ¶ 23, citing Doc. 10-4 at 15, 23 and 30.) In

addition, he helped build tow (Doc. 14-2 at 12); helped put out running lights (id. at 13); assisted

with the shifting of barges (id. at 23-24); inspected barges for damage (id. at 20); pumped water

from the hatches (id. at 18); and cleaned barge decks (id. at 21). He occasionally had a meal on

the tug. (Doc. 10-4 at 45; Doc 10-7 at 11-12.) He would sometimes be on the barges as they were

being shifted within the fleet. (Doc. 10-4 at 26.) At times, he would handle lines or tie up barges.

(Id. at 12, 46)

By contrast, the plaintiff in Saienni did only traditional repair work and performed no

deckhand duties. 2005 WL 940558 at *11. This difference was also used by the district court in

Naquin to distinguish the Saienni case.

While Plaintiff's employment as a repair supervisor is in some ways similar to those

of the plaintiff in Saienni, they are not identical. While the plaintiff in Saienni

performed only traditional repair work, here, a substantial part of Plaintiff's work

involved deckhand duties, such as painting, repairing leaks, engine maintenance,

fixing cracks in the hulls of the vessels, chipping, and cleaning the vessels, as well

as other routine maintenance activities.

Naquin v. Elevating Boats, LLC, 842 F. Supp. 2d 1008, 1018 (E.D. La. 2012), aff'd sub nom.

Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014).

Defendants also point this Court to Schultz v. Louisiana Dock Co., 94 F. Supp. 2d 746

(E.D. La. 2000), which granted summary judgment to the employer of a worker claiming to be a

seaman. Schultz is distinguishable on two separate grounds. First, the Court found Schultz was

not a seaman because the barges on which he worked were not an identifiable fleet. “The barges

on which [Schultz] worked at the facility were owned by various entities, and at any given time

his assignment to those vessels was random and impermanent. He did not owe his allegiance to a

vessel or group of vessels under common ownership or control.” Id. at 750 (citation omitted).

That is clearly not the case here.

Second, the Court denied Schultz seaman status because “[n]one of plaintiff's work was

of a seagoing nature. Plaintiff's duties were limited to inspecting and repairing barges moored at

the facility. He did not go to sea or face the perils of the sea in the manner associated with

seaman status.” Id. at 750 (emphasis added). The literal use of those phrases was specifically

rejected in the later Fifth Circuit cases of In re Endeavor Marine, supra, and Naquin, supra.

Finally, Defendants rely on the Second Circuit decision of In re Buchanan Marine, L.P.,

874 F.3d 356 (2d Cir. 2017), cert. denied sub nom. Volk v. Franz, 138 S. Ct. 1442, 200 L. Ed. 2d

718 (2018). The Second Circuit takes a fundamentally different view from that of the Fifth

Circuit on the issue before the Court. In Buchanan, the court found that the plaintiff was not a

seaman because “none of [plaintiff’s] work was of a seagoing nature. [Plaintiff’s] duties were

limited to inspecting and repairing barges that were secured to the dock at the Clinton Point

facility. [Plaintiff] did not go to sea and he was not exposed to the ‘perils of the sea’ in the

manner associated with seaman status.” Id. at 368. This view, again, was specifically rejected by

In re Endeavor Marine and Naquin. This Court is bound to follow Fifth Circuit precedent.

In summary, the Court finds that there are multiple issues of fact regarding Plaintiff’s

connection to Defendants’ fleet of vessels which precludes summary judgment and the motion

for summary judgment on this issue is denied.

V. PLAINTIFF’S 905(b) CLAIM

Defendants argue that Plaintiff’s 905(b) claim should be dismissed since the accident

occurred on land and there is no allegation or even suggestion that vessel negligence of any kind

was involved in causing the accident. (Doc. 10-2 at 19-20.) Plaintiff has remained silent on this

issue.

Plaintiff’s claim could be dismissed for this reason alone. “ ‘The Fifth Circuit makes it

clear that when a party does not address an issue in his brief to the district court, that failure

constitutes a waiver on appeal.’ ” JMCB, LLC v. Bd. of Commerce & Indus., 336 F. Supp. 3d

620, 634 (M.D. La. 2018) (deGravelles, J.) (quoting Magee v. Life Ins. Co. of N. Am., 261 F.

Supp. 2d 738, 748 n.10 (S.D. Tex. 2003) (citations omitted)); see also United States v. Reagan,

596 F.3d 251, 254–55 (5th Cir. 2010) (defendant’s failure to offer any “arguments or explanation

. . . is a failure to brief and constitutes waiver”). “ ‘By analogy, failure to brief an argument in the

district court waives that argument in that court.’ ” JMCB, 336 F. Supp. 3d at 634 (quoting

Magee, 261 F. Supp. 2d at 748 n.10); see also Kellam v. Servs., No. 12-352, 2013 WL 12093753,

at *3 (N.D. Tex. May 31, 2013), aff’d sub nom. Kellam v. Metrocare Servs., 560 F. App’x 360

(5th Cir. 2014) (“Generally, the failure to respond to arguments constitutes abandonment or

waiver of the issue.” (citations omitted)); Mayo v. Halliburton Co., No. 10-1951, 2010 WL

4366908, at *5 (S.D. Tex. Oct. 26, 2010) (granting motion to dismiss breach of contract claim

because plaintiff failed to respond to defendants’ motion to dismiss on this issue and thus waived

the argument). See also Apollo Energy, LLC v. Certain Underwriters at Lloyd’s, London, 387 F.

Supp. 3d 663, 672 (M.D. La. 2019) (deGravelles, J.) (finding that, because plaintiff failed to

respond to defendant’s argument on an issue, the Court could conclude that a policy exclusion

applied (citing, inter alia, JMCB, 336 F. Supp. 3d at 634)).

However, even if Plaintiff had opposed this portion of the motion, it is clear that this part

of the motion is meritorious since the accident occurred on land, without any vessel involvement.

See 33 U.S.C. § 905(b); May v. Transworld Drilling Co., 786 F.2d 1261, 1263-65 (5th Cir.

1986).

VI. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 10) is

GRANTED IN PART and DENIED IN PART. Defendants’ motion regarding Plaintiff’s

claims under 33 U.S.C. § 905(b) is GRANTED and that claim is dismissed. In all other respects,

the motion is DENIED.

Signed in Baton Rouge, Louisiana, on the 3rd day of January, 2020.

S

______________________________________

JUDGE, JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA