St. Romain v. Industrial Fabrication & Repair Service, Inc.

Revised February 23, 2000

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31081

MARK ST. ROMAIN and ANGELA

ST. ROMAIN,

Plaintiffs-Appellants,

versus

INDUSTRIAL FABRICATION AND

REPAIR SERVICE, INC., ET AL.,

Defendants.

SUPERIOR WELL SERVICE, INC.

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

February 22, 2000

Before POLITZ, DAVIS, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

Mark St. Romain and his wife Angela appeal an adverse summary judgment

in their Jones Act action against Superior Well Service Inc. The district court

concluded that St. Romain was not a seaman for purposes of the Jones Act. For the

reasons assigned, we affirm.

BACKGROUND

This action arises out of an accident which occurred on an offshore platform,

owned by Marathon Oil Company and permanently affixed to the Outer

Continental Shelf off the coast of Louisiana. St. Romain was employed by

Superior as a “plug and abandon” (p&a) helper from 1993 until the date of his

accident in 1995. Plug and abandon work involves the decommissioning of oil

wells under offshore platforms. Cement plugs are inserted into the wells beneath

the ocean floor and the casing pipe is removed. Most of Superior’s p&a work is

done from fixed platforms. Other projects, including some of St. Romain’s

assignments, are performed partly from liftboats. A liftboat is a support vessel that

uses a crane to pull the casing. The vessel transports Superior’s equipment to the

platforms, and provides the Superior crew with a place to eat and sleep. The p&a

team usually remains at the platform until the job is complete. The work may

extend from a few days to several weeks. Occasionally the liftboat also is used to

transport Superior’s p&a team to the platform.

On March 4, 1995, St. Romain was assisting in the removal of casing when

a spreader bar used to lift the pipe failed and a shackle and sling struck his hard hat.

St. Romain sought and received benefits under the Longshore and Harbor Workers’

Compensation Act.1 He initially sued the manufacturer of the spreader bar, later

1

33 U.S.C. § 901 et seq.

2

amending his complaint to assert a negligence claim against Superior, claiming

status as a seaman under the Jones Act.2 The district court granted Superior’s

motion for summary judgment, concluding that St. Romain did not qualify as a

Jones Act seaman because he did not establish that he worked aboard an

identifiable fleet of vessels. The district court also granted Superior’s motion to

strike St. Romain’s second affidavit and the affidavit of his expert witness because

they contained inadmissible legal conclusions and hearsay. The court also denied

St. Romain’s motion to strike the affidavit of Superior’s president, Terence Hall,

for lack of personal knowledge, concluding that the affidavit was based on Hall’s

personal knowledge as president of the company. St. Romain timely appealed.

ANALYSIS

Jones Act:

We review de novo a district court’s grant of summary judgment.3 The

determination whether an injured worker is a seaman under the Jones Act is a

mixed question of law and fact.4 As such, it is generally inappropriate to dispose

of a seaman status claim on summary judgment.5 Summary judgment is mandated,

however, “where the facts and the law will reasonably support only one

2

46 U.S.C. § 688(a).

3

Brown v. Forest Oil Corp., 29 F.3d 966 (5th Cir. 1994).

4

Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997); Bertrand v. Int’l Mooring &

Marine, Inc., 700 F.2d 240 (5th Cir. 1983).

5

Harbor Tug, 520 U.S. at 554; Buras v. Commercial Testing & Eng’g Co., 736 F.2d 307 (5th

Cir. 1984); Bertrand, 700 F.2d at 244.

3

conclusion.”6 “Seaman” is not defined in the Jones Act; that task has been left to

the courts. The Supreme Court announced a two-part test to determine seaman

status:

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

its duration and its nature.7

We previously have defined “fleet” to mean “an identifiable group of vessels acting

together or under one control.”8 Our review of the record herein leads to the

inexorable conclusion that St. Romain is not a seaman as a matter of law.

It is undisputed that St. Romain was not permanently assigned to any one

vessel in navigation. Rather, he contends that he was a member of the crews of the

several liftboats used in the p&a jobs performed by Superior, and that these boats

constitute an identifiable fleet of vessels.9 Thus, the issue before the district court,

and before this court, is whether St. Romain has produced sufficient evidence to

6

McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356 (1991) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

7

Harbor Tug, 520 U.S. at 554 (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995))

(citations and internal quotation marks omitted).

8

Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986) (footnote omitted).

9

We note that no liftboat was being used by Superior on the job when St. Romain’s injury

occurred. Marathon’s platform was affixed to the Outer Continental Shelf at a point where the ocean

depth was over 400 feet, which is too deep for a liftboat operation. This fact is not material to our

analysis, however, as seaman status must be determined by examining the claimant’s overall

employment-related connection to a vessel in navigation rather than focusing only on the facts at the

time of injury. Chandris, 515 U.S. at 363; Barrett, 781 F.2d at 1075 (citing Longmire v. Sea

Drilling Corp., 610 F.2d 1342 (5th Cir. 1980)).

4

create a genuine fact issue as to whether he had a substantial connection to a group

of vessels acting together under common ownership or control. We must conclude

that he has not done so.

The case at bar involves facts strikingly similar to those in Hufnagel v.

Omega Service Industries, Inc..10 In Hufnagel, we denied seaman status to a

rigger, employed by an oilfield service company, injured on a fixed offshore

platform while repairing the platform’s pilings. Hufnagel claimed he was a member

of the crew of the liftboat used to assist Omega in its platform repairs and therefore

was entitled to seaman status.11

We held that Hufnagel did not qualify as a seaman because he could not

establish a substantial connection to either a single vessel or to an identifiable fleet

of vessels.12 Throughout his employment Hufnagel had worked on twenty-six

different offshore platforms owned by thirteen different Omega customers. We

concluded that the support vessels which were used on some of Hufnagel’s

assignments did not qualify as a fleet because “[the vessels] were always different,

provided by different customers, and owned and operated by different companies.

They were not subject to common ownership or control.” 13

Similarly, St. Romain did not work aboard vessels under common ownership

10

182 F.3d 340 (5th Cir. 1999).

11

Id. at 345.

12

182 F.3d at 347.

13

Id.

5

or control. During his employment with Superior, St. Romain had eleven different

offshore work assignments. He worked aboard liftboats owned by nine different

companies and chartered by five different entities. Superior did not own any of the

liftboats. Typically, they were chartered by the oil company that hired Superior

to do the p&a work. On four occasions Superior chartered the liftboats for its

customer. The deposition testimony and the written charter agreements reflect that

the captain of the liftboat, and its owner, had at all times ultimate authority with

respect to the navigation, management, and operation of the vessels. Consequently,

viewing the facts in the light most favorable to St. Romain, as we are required to

do in this summary judgment setting, we must conclude that they do not establish

that the liftboats at issue commonly were controlled by any one single entity and,

thus, there is no genuine issue herein necessitating a trial.14 St. Romain is not a

seaman.

St. Romain urges us to take an expansive view of “control” of a vessel,

relying heavily on our decision in Bertrand v. Int’l Mooring & Marine Inc.,15

wherein we stated, “[i]n light of the purposes of the Jones Act, we will not allow

14

See e.g., Coats v. Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993) (denying seaman status

to claimant as a matter of law because the vessels claimant worked aboard were not under common

ownership or control); Bach v. Trident Steamship Co., Inc., 920 F.2d 322 (5th Cir. 1991) (ships

navigated by compulsory pilot not a fleet merely because each vessel was under pilot’s control at the

time he navigated them); Langston v. Schlumberger Offshore Serv., Inc., 809 F.2d 1192 (5th Cir.

1987) (wireline operator not a seaman where employee was assigned to fifteen different vessels

owned by ten owners).

15

700 F.2d 240 (5th Cir. 1983) (reversing grant of summary judgment denying seaman status to

anchorhandlers where vessels employees worked aboard were all used, but not owned or chartered

by their employer).

6

employers to deny Jones Act coverage to seamen by arrangements with third

parties regarding the vessel’s operation or by the manner in which work is

assigned.”16 St. Romain contends that control over a group of vessels should not

be determined by who owns or charters the vessels but, instead, should be

determined by who supervises the practical operations aboard the vessels. St.

Romain maintains that because Superior selected the particular liftboat needed to

complete the work, directed the vessel’s captain where to position the boat to

facilitate the use of its crane, and Superior employees told the captain when to jack-

up or down, Superior exercised “operational control” over the boats which should

satisfy the common control requirement.

This reliance on Bertrand is misplaced. Our later decisions clearly reflect

that the court in Bertrand was concerned with denying seaman status to

anchorhandlers, traditional maritime workers, merely because of the contractual

arrangements made by their employer.17 Our decisions after Bertrand have

reaffirmed the essential principle that to qualify as a seaman an employee must

establish an attachment to a vessel or to an identifiable fleet of vessels.18 We are

16

700 F.2d at 245.

17

Buras, 736 F.2d at 311 (“Our concern [in Bertrand] was to prevent the denial of Jones Act

seaman status as a matter of law to those claimants who are engaged in traditional maritime activity

on a vessel or vessels comprising an identifiable fleet in every respect except common control or

ownership.”).

18

736 F.2d at 311 (“[W]e [do not] believe that Bertrand rejected the identifiable or recognizable

fleet requirement established by our prior cases. Rather, Bertrand must be read in light of the factual

situation it involved.”) (footnote omitted); Bach, 920 F.2d at 326 (“Dozens (perhaps hundreds) of

seaman status cases have come before us, but we have never made an exception to the core

requirement that the injured worker show attachment to a vessel or identifiable fleet of vessels.”).

7

not persuaded by the proposed operational control test. To accept that position

would involve the court in analyzing the day-to-day minutiae of a liftboat’s

operations. This we decline to do and, rather, resort to developed workable

standards for determining who qualifies as a seaman under the Jones Act. In doing

so we must decline to depart from these established principles.

St. Romain places great emphasis on his claim that in all his offshore

assignments, whether he worked on the platforms or on the liftboats, he was

regularly exposed to the “perils of the sea” faced by traditional seamen. We cannot

agree. Whether St. Romain faced perils of the sea is not outcome determinative of

seaman status.19 We must hold, therefore, that consistent with Hufnagel, St.

Romain’s seaman status claim fails as a matter of law and the district court

properly granted summary judgment to Superior.

Evidentiary Rulings:

The district court granted Superior’s Motion to Strike the affidavit of St.

Romain’s expert, Kenneth A. Kaigler, and the second affidavit by St. Romain to the

extent that they contained inadmissible legal conclusions or hearsay. Additionally,

the court denied St. Romain’s Motion to Strike or Disregard the affidavit of

Terence Hall, Superior’s president, for lack of personal knowledge. We review

these evidentiary rulings for an abuse of discretion. Where an affidavit is

erroneously excluded, a reversal of summary judgment is not warranted if the error

was harmless.

19

Chandris, Inc. v. Latsis, 515 U.S. 347, 361 (1995) (“Seaman status is not coextensive with

seaman’s risks.”); Bach, 920 F.2d at 325 (same).

8

St. Romain’s evidentiary challenges involve the inclusion or exclusion of

certain facts related to the proposed operational control test. In light of our

rejection of that test, we must conclude that any evidentiary errors, if any errors

indeed were committed by the district court, necessarily were harmless.

The decision appealed is AFFIRMED.

9