Petition for Writ of Certiorari — Centaur, L.L.C., Petitioner v. River Ventures, L.L.C.
Supreme Court briefMar 9, 2020
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for
the Fifth Circuit (November 11, 2019) .............. 1a
Judgment of the United States District Court for
Eastern District of Louisiana
(February 5, 2019) ............................................ 22a
Findings of Fact and Conclusion of the United
States District Court for Eastern District of
Louisiana (February 1, 2019)........................... 24a
Order and Reasons of the United States District
Court for Eastern District of Louisiana
(October 22, 2018) ............................................ 41a
REHEARING ORDER
Order of the United States Court of Appeals for
the Fifth Circuit Denying Petition for Rehearing En Banc (December 16, 2019) .................... 54a
App.1a
OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
(NOVEMBER 11, 2019)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
DEVIN BARRIOS; ET AL.,
Plaintiffs,
versus
CENTAUR, L.L.C.,
Defendant
Cross Defendant
Appellee,
versus
RIVER VENTURES, L.L.C.,
Defendant
Cross Claimant
Appellant.
________________________
No. 18-31203
Appeals from the United States District Court
for the Eastern District of Louisiana
Before: JONES, SMITH,
and HAYNES, Circuit Judges.
App.2a
JERRY E. SMITH, Circuit Judge:
Devin Barrios—an employee of Centaur, L.L.C.
(“Centaur”)—was injured while offloading a generator
from a crew boat to a barge. The crew boat was
owned and operated by River Ventures, L.L.C. (“River
Ventures”); the barge was leased by Centaur. Barrios
sued River Ventures and Centaur for vessel negligence
under general maritime law and the Jones Act. River
Ventures crossclaimed against Centaur for contractual indemnity. The district court granted summary
judgment to Centaur, and River Ventures appeals.
We reverse and remand.
I.
Before Barrios’s accident, non-party United Bulk
Terminals Davant, LLC (“UBT”), executed a Master
Service Contract (the “MSC”) with Centaur, a small
marine construction company. The MSC added Centaur
to UBT’s approved vendor list for work at its dock
facility adjoining the Mississippi River (the “Davant
Facility”).
The MSC contained two provisions relevant to
this appeal. The first imposed on Centaur an obligation
to indemnify UBT and its contractors:
CONTRACTOR
SHALL
RELEASE,
DEFEND, INDEMNIFY AND HOLD UBT
GROUP (DEFINED AS UBT AND UBT’S
OTHER CONTRACTORS AND SUBCONTRACTORS OF ANY TIER . . . ) HARMLESS
FROM AND AGAINST ANY AND ALL
CLAIMS . . . BROUGHT BY ANY PERSON,
PARTY OR ENTITY IN RESPECT OF
PERSONAL OR BODILY INJURY TO, SICK-
App.3a
NESS, DISEASE OR DEATH OF ANY MEMBER OF CONTRACTOR GROUP (DEFINED
AS CONTRACTOR GROUP . . . REGARDLESS OF CAUSE OR FAULT, AND EVEN
IF CAUSED IN WHOLE OR IN PART BY
THE SOLE, JOINT OR CONCURRENT
NEGLIGENCE OR FAULT OF ANY
MEMBERS OF THE UBT GROUP OR THE
UNSEAWORTHINESS OF ANY VESSELS
OWNED, OPERATED OR OTHERWISE
UNDER THE CONTROL OF ANY MEMBER OF UBT GROUP.
The second required Centaur to obtain insurance
covering those same parties:
Prior to Contractor commencing Work hereunder for UBT, Contractor shall, but only to
the extent of the liabilities assumed by Contractor in this Agreement, obtain from each of
its insurers a waiver of subrogation in favor
of each of the “UBT Group” . . . and, with the
exception of Workers’ Compensation Coverage . . . and the Hull Insurance . . . name each
of the UBT Group as additional insured to
each insurance policy . . . , but only to the
extent of the liabilities assumed by Contractor in this Agreement. . . . Contractor shall
ensure that any endorsement naming the
UBT Group as additional insureds shall not
exclude from coverage the sole negligence of
the insureds. Contractor shall be responsible
for payment of all deductibles, premiums,
retentions and payment for all expenditures
incurred under any sue and labor provision.
App.4a
The MSC governed future project-specific work orders
between the parties.
Centaur and UBT executed several work orders
for projects at the Davant Facility. One—for which
Centaur submitted a proposal in October 2015—
required installation of a concrete containment rail
at one of the facility’s docks. The dock was principally
used to load and offload ships carrying “dry bulk
materials,” including coal and petroleum coke. The
containment rail was necessary to prevent those
materials from spilling both onto the dock and into
the river.
Centaur’s proposal indicated that, at an increased
cost, both a barge and a tug boat would be required
to complete the project. UBT accepted the proposal
and issued a purchase order in November 2015. That
purchase order and the MSC, in tandem, formed the
contract at issue (the “Dock Contract”).
To perform the work, Centaur chartered barge
DB-582, which was equipped with a crane. Because
DB-582 was a “dumb” barge that couldn’t self-navigate,
it was moved up and down the river using a tugboat
and winch. The Centaur crew used the barge to perform
some construction work on the dock, including “drilling
holes, cutting rebar, and pouring forms.” It also used
the barge to store items, pack and unpack tools, hold
safety meetings, take breaks, and eat lunch.
Because the dock was most easily accessed by
boat, UBT contracted with River Ventures for a
crewed vessel—the M/V TROOPER—to transport
Centaur’s employees from the parking area to their
worksite. Centaur also used the crew boat to ferry
tools and equipment in addition to its employees.
App.5a
On the day of the incident, Barrios and other
Centaur employees were transporting a portable generator on the crew boat. While attempting to offload the
generator, the M/V TROOPER began to separate
from DB-582. That movement caused Barrios to fall
into the river, where the generator hit him in the
head, severely injuring him.
Barrios sued River Ventures and Centaur, alleging,
inter alia, vessel negligence under general maritime
law and the Jones Act.1 River Ventures—averring
that it was a third-party beneficiary of the Dock Contract—cross-claimed against Centaur for contractual
indemnity and additional assured status under its
insurance policies.
Centaur moved for summary judgment on River
Ventures’s crossclaim, averring that the Dock Contract
was nonmaritime and that its indemnity provision was
therefore void under Louisiana law. To determine
whether the contract was maritime, the court considered whether “(1) the work Centaur was performing
for UBT involve[d] maritime commerce, (2) it involved
work from a vessel, and (3) the contract provided or the
parties expected that a vessel would play a substantial
role in completing the contract.”
Applying that test, the court held that the Dock
Contract was a “land-based construction contract”
governed by Louisiana law. It granted summary judgment because the Louisiana Construction AntiIndemnity Statute (“LCAIS”) “applie[d] to prohibit
the indemnity and insurance provisions.”
1 The Jones Act, 46 U.S.C. § 30104, provides a cause of action for
seamen against their employer if they are “injured in the course
of employment.”
App.6a
River Ventures filed a notice of interlocutory
appeal challenging the summary judgment, averring
that this court had jurisdiction under 28 U.S.C.
§ 1292(a)(3) because its claims against Centaur arose
in an “admiralty case” and determined the “rights
and liabilities” between the parties. Centaur moved to
dismiss that appeal for lack of jurisdiction, maintaining
that the appeal “should not go forward until a Final
Judgment is entered by the District Court.” A panel
of this court determined that Centaur’s motion should
be carried with the case.
While the interlocutory appeal was pending,
Barrios’s underlying tort claims proceeded to a bench
trial. The court ruled for Barrios, holding that River
Ventures was liable and that Centaur wasn’t liable
because Barrios wasn’t a Jones Act seaman. The
court then entered final judgment.
River Ventures appealed, reasserting its intent
to seek review of the summary judgment. It also filed
a notice of appeal of the bench-trial findings, but it
voluntarily dismissed that appeal after settling with
Barrios. River Ventures’s crossclaim against Centaur
is the only claim remaining on appeal.
II.
“[W]e have a constitutional obligation to satisfy
ourselves that subject matter jurisdiction is proper
before we engage the merits of an appeal.” Ziegler v.
Champion Mortg. Co., 913 F.2d 228, 229 (5th Cir.
1990). Therefore, we first consider Centaur’s motion
to dismiss the appeal.
We need not decide, however, whether we have
jurisdiction under § 1292(a)(3). That is because after
App.7a
final judgment was entered, River Ventures filed a
renewed notice of appeal related to its indemnity and
insurance claims. Because we have jurisdiction over
River Ventures’s appeal under 28 U.S.C. § 1291,
Centaur’s motion to dismiss for lack of jurisdiction is
denied as moot.
III.
The indemnity dispute presents issues with
which this court is familiar. It boils down to what
law governs. If federal maritime law controls, then
the Dock Contract’s indemnity provision is enforceable.
See Hoda v. Rowan Cos., Inc., 419 F.3d 379, 380 (5th
Cir. 2005). If Louisiana law applies, then the LCAIS
voids the indemnity provision as against public policy.
See La. Stat. Ann. § 9:2780.1. So the question is
whether the Dock Contract is maritime. But before
we can resolve that, we must identify the proper test
for making that determination, a task that has vexed
this court for decades.
A.
From 1990 to 2018, we applied the six-factor test
announced in Davis & Sons, Inc. v. Gulf Oil Corp., 919
F.2d 313, 316 (5th Cir. 1990), to determine whether a
contract was maritime:
1) what does the specific work order in
effect at the time of injury provide? 2) what
work did the crew assigned under the work
order actually do? 3) was the crew assigned
to work aboard a vessel in navigable waters;
4) to what extent did the work being done
relate to the mission of that vessel? 5) what
was the principal work of the injured worker?
App.8a
and 6) what work was the injured worker
actually doing at the time of injury?
Though Davis & Sons was intended to provide clear
criteria for courts to apply, the test proved unwieldy
in practice, with “final result[s] [often] turn[ing] on a
minute parsing of the facts.” Hoda, 419 F.3d at 380.
Fourteen years after Davis & Sons, the Supreme
Court erected a guidepost in Norfolk Southern Railway
Co. v. Kirby, 543 U.S. 14 (2004). The Court considered
whether a money-damages claim arising from a train
derailment fell within its admiralty jurisdiction. The
cargo destroyed in the derailment was completing
the second, land-based leg of its journey from Australia
to Alabama. The first leg had transported the cargo
by boat from Australia to Georgia. The two legs of
the trip had separate but co-extensive bills of lading.
To determine whether the bills of lading were
maritime, the Court noted that it could not merely
“look to whether a ship or other vessel was involved in
the dispute” or “to the place of the contract’s formation
or performance.” Id. at 23-24. Geography couldn’t be
controlling because “the shore [was] now an artificial
place to draw a line.” Id. at 25. Instead, “the answer
depends upon the nature and character of the contract,
and the true criterion is whether it has reference to
maritime service or maritime transactions.” Id. at 24
(cleaned up).2 That approach vindicated the fundamental interest undergirding maritime jurisdiction: “the
protection of maritime commerce.” Id. at 25.
2 The Court rejected the “spatial approach,” on which several of
the factors in Davis & Sons were based. Kirby, 543 U.S. at 23-24.
App.9a
Applying those principles, the Court held that the
bills of lading were maritime “because their primary
objective [was] to accomplish the transportation of
goods by sea from Australia to the eastern coast of
the United States.” Id. at 24 (emphasis added). “[S]o
long as a bill of lading requires substantial carriage
of goods by sea, its purpose is to effectuate maritime
commerce—and thus it is a maritime contract.” Id. at
27 (emphasis added). That some of the performance
was land-based did “not alter the essentially maritime nature of the contracts.” Id. at 24.
In In re Larry Doiron, Inc., 879 F.3d 568 (5th Cir.)
(en banc), cert. denied, 138 S. Ct. 2033 (2018), we
sought to remedy the infirmities of Davis & Sons and
harmonize our law with Kirby. We considered whether
a “work order . . . to perform ‘flow-back’ services on a
gas well in navigable waters” was a maritime contract. Id. at 570. The work didn’t require vessels, and
neither party expected to use them. A crane barge
was engaged only after the workers “determined that
some heavy equipment was needed to complete the
job.” Id. A worker was injured when he was struck by
the crane.
In a unanimous opinion, we adopted a two-question test—centering the inquiry “on the contract and
the expectations of the parties,” id. at 576—to determine
whether a contract was maritime:
First, is the contract one to provide services
to facilitate the drilling or production of oil
and gas on navigable waters? . . . Second, if
the answer to the above question is “yes,”
does the contract provide or do the parties
expect that a vessel will play a substantial
role in the completion of the contract?
App.10a
Id. That standard jettisoned the irrelevant prongs of
Davis & Sons and made clear that “contract rather
than tort principles” control when determining whether
a contract is maritime.3
Applying the new test, we held that the contract
was nonmaritime because “[t]he use of the vessel to
lift the equipment was an insubstantial part of the job
and not work the parties expected to be performed.”
Id. at 577. The crew had involved a vessel only after
it had “encountered an unexpected problem that
required a vessel and a crane to lift equipment needed
to resolve [it].” Id. Even though the vessel’s involvement
was important, it wasn’t substantial because its use
didn’t comport with the parties’ expectations.
Since Doiron, we’ve had only one occasion to apply
its standard: Crescent Energy Services, L.L.C. v.
Carrizo Oil & Gas, Inc., 896 F.3d 350 (5th Cir.), cert.
denied, 139 S. Ct. 642 (2018). There, the contract
involved the plugging and abandonment of three
offshore oil wells on small fixed platforms. Id. at 352.
About half the job involved “wireline work.”4 To
3 Doiron, 879 F.3d at 576-77. When announcing the test, we
recognized that we dealt “only with determining the maritime or
nonmaritime nature of contracts involving the exploration,
drilling, and production of oil and gas.” Id. at 577 n.52. We noted,
however, that we expected the standard to be “helpful in
determining whether a [non-oil-and-gas] contract is maritime”
if that “activity . . . involves maritime commerce and work from a
vessel.” Id.
4 Crescent, 896 F.3d at 361. “A ‘wireline’ is a continuous cable
used to perform various subsurface functions in a well, including
the lowering and raising of various tools, instruments, and other
devices.” Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 371 (5th
Cir. 2001).
App.11a
complete the task, Crescent charted three vessels: a
crane barge, a tug boat, and a cargo barge. A Crescent
employee’s leg was severely injured when a piece of
pipe struck him while he was sitting on one of the
fixed platforms.
Crescent’s insurers, attempting to limit Doiron’s
reach, made two contentions. First, the insurers posited
—relying primarily on circuit caselaw stating that
work performed on fixed offshore platforms is nonmaritime—that Doiron’s first prong wasn’t satisfied
because “the plugging and abandoning work did not
occur on ‘navigable waters.’” Id. at 356. Second, and
relatedly, they averred “that Doiron must be read in
conjunction with other law,” specifically precedents
classifying activities as either maritime or not. Id. at
357.
We rejected both theories, affirming that, for
analyzing whether a contract was maritime, “Doiron
now control[led] that endeavor.” Id. at 358. Because
the wells at issue “were located within the territorial
inland waters of Louisiana and . . . the vessels involved
. . . were able to navigate to them,” the contract “was to
facilitate the drilling or production of oil and gas on
navigable waters.” Id. at 357. And because the “contract
anticipated the constant and substantial use of
multiple vessels,” it was maritime. Id. at 361.
Outside of the instant case, only one district court
that we know of has applied Doiron to a non-oil-andgas contract. In Lightering LLC v. Teichman Group,
LLC, 328 F. Supp. 3d 625, 627-29 (S.D. Tex. 2018),
the court considered whether a contract for wharfage,
storage, and other dockside services was maritime.
In determining how to apply Doiron outside the oiland-gas sector, the court first observed that “Kirby
App.12a
state[d] that for a contract to be maritime, its principal objective must be maritime commerce.” Id. at 636.
Doiron, the court inferred, “applie[d] Kirby to interpret a ‘principal objective.’” Id.
Based on that, the court determined that Doiron’s
first factor—i.e., “is the activity at issue oil and gas?”—
was a substitute for Kirby’s broader question whether
a contract involved maritime commerce and work
from a vessel. Id. “Under Doiron and Kirby, determining whether a contract is maritime requires
three steps: (1) [T]he activity must be maritime
commerce; (2) the activity must involve work from a
vessel; and (3) the contract must provide or the
parties must expect that a vessel will play a substantial role in completing the contract.” Id. at 637.
Though the analysis is seemingly clear-cut, applying that test—and especially the first prong—was far
from straightforward. As the court recognized, the
caselaw doesn’t clearly define the boundaries of “maritime commerce.” Id. As a result, “most courts resort to
a case-by-case approach, relying heavily on precedent.”
Id. Utilizing that precedent-focused method, the court
determined that the contract’s wharfage and dockside
services were subsumed within a wide range of landbased activities that facilitate maritime commerce
but that aren’t, themselves, maritime commerce. See
id. at 637-38. As a result, the contract was “[nonmaritime] in nature and character.”5
5 Lightering, 328 F. Supp. 3d at 643. Therefore, the court dismissed
the case for want of 28 U.S.C. § 1333 admiralty jurisdiction. Id.
App.13a
B.
The parties agree that Kirby, Doiron, and their
progeny govern, but they read those authorities differently.6 Their primary disagreement centers on how
to apply Doiron’s first prong outside the oil-and-gas
context. River Ventures avers that “this Court should
apply a test that the contract be performed or facilitate
operations on navigable waters and that the contract
provide or the parties expect that a vessel will play a
substantial role in the completion of the contract.”7
6 That isn’t unreasonable: “Our cases do not draw clean lines
between maritime and nonmaritime contracts,” Kirby, 543 U.S.
at 23, and, indeed, they “have long been confusing and difficult
to apply,” Doiron, 879 F.3d at 571.
7 Centaur posits that River Ventures is estopped from asserting
the test for which it now advocates because it “initially agreed
with the test applied by the district court.” Centaur points to
River Ventures’s opposition to summary judgment, in which it
stated that “as applied to this case, critical determinations for this
Court to make are: (1) whether the work Centaur was performing
for UBT involved maritime commerce and (2) whether it involved
substantial work from a vessel.” Because River Ventures stated
that “maritime commerce” was an important consideration,
Centaur suggests that it cannot be allowed to propose a new test
eliminating that requirement on appeal.
Judicial estoppel is an equitable doctrine that prevents a party
from gaining an advantage by asserting contradictory positions
in different proceedings. See New Hampshire v. Maine, 532 U.S.
742, 749 (2001). Judicial estoppel has two elements: “First, the
estopped party’s position must be clearly inconsistent with its
previous one, and second, that party must have convinced the
court to accept that previous position.” Gabarick v. Laurin Mar.
(Am.) Inc., 753 F.3d 550, 553 (5th Cir. 2014) (quotation marks
omitted). “[T]he rule is intended to prevent improper use of judicial
machinery” and is therefore within the court’s discretion to apply.
Maine, 532 U.S. at 750 (quotation marks omitted).
App.14a
Centaur counters that Lightering sets forth the proper
test. The district court accepted Centaur’s position
and applied Lightering.
River Ventures has the better of the argument:
Doiron should apply essentially as written. For nonoil-and-gas contracts, Doiron would ask whether (1)
the contract is “one to provide services to facilitate
[activity] on navigable waters,” and (2) if so, whether
“the contract provide[s] or . . . the parties expect that
a vessel will play a substantial role in the completion
of the contract.” Doiron, 879 F.3d at 576. That test is
preferable for two reasons: (1) Doiron was meant to
streamline the inquiry regarding whether a contract
is maritime; and (2) Doiron’s rule, even applied to
non-oil-and-gas contracts, is consistent with Kirby.
In Doiron, the en banc court clarified that its test
was intended to simplify the is-this-contract-maritime
inquiry, not complicate it. To do that, we abrogated a
significant portion of Davis & Sons ’s six-factor
standard. Chief among those factors that Doiron
jettisoned was the second, which required courts “to
parse the precise facts related to the services performed under the contract and determine whether
those services were inherently maritime.” Id. at 573.
That was true even for mixed-services contracts
Contrary to Centaur’s assertion, neither prong of Gabarick ’s test
is satisfied. First, River Ventures advances essentially the same
position on appeal as it did in the district court: that Doiron’s
two-prong test applied. Furthermore, the quote on which Centaur
relies must be considered in its appropriate context. Only a few
pages earlier in its motion, River Ventures advanced that Doiron
established a two-part test, and it quoted that test. Second, the
district court refused to apply Doiron ’s two-part test and instead
applied Lightering.
App.15a
where none of the services were inherently maritime.
Id.
That inquiry, Doiron held, was irrelevant to
whether a contract was maritime because it didn’t
focus on whether the contract required “substantial
work to be performed from a vessel.” Id. at 573, 57677. To the extent that the Davis & Sons factors
remained relevant, they were so only as they helped
to explain the “scope of the contract” or “the extent to
which the parties expect[ed] vessels to be involved in
the work.” Id. at 577. Doiron’s method, in contrast to
Davis & Sons, ensures that courts aren’t determining
whether some “service work has a more or less salty
flavor than other service work when neither type is
inherently salty.” Id.
Centaur’s position would turn Doiron on its head
and effectively return courts to Davis & Sons ’s precedent-laden trudge. Lightering recognized as much.8
But Doiron and Crescent made clear, and for good
reason, that we should be out of that business.
“[R]egardless of what other Fifth Circuit caselaw there
may be, nothing in such caselaw detracts from the
clarity of our 2018 en banc decision in Doiron.”9
8 See Lightering, 328 F. Supp. 3d at 637 (“Though the rule from
Kirby seems simple in theory, its application proves to be
complicated. Thus, most courts resort to a case-by-case
approach, relying heavily on precedent.” (cleaned up)).
9 Crescent, 896 F.3d at 359. Crescent ’s rejection of precedent-based
arguments was critically important to its outcome because this
court’s precedent had long held that wireline work was nonmaritime even when performed from a vessel. See, e.g., Domingue
v. Ocean Drilling & Expl. Co., 923 F.2d 393, 398 (5th Cir. 1991);
Thurmond v. Delta Well Surveyors, 836 F.2d 952, 956 (5th Cir.
1988). Moreover, Lightering’s analysis didn’t consider Crescent.
App.16a
Centaur contends that applying Doiron outside the
oil-and-gas context would run afoul of Kirby’s command
that the “principal objective” of the contract must be
maritime commerce. That is so because Doiron established its two-part test only after it “emphasiz[ed] the
importance of first determining whether the activity
is ‘commercial maritime activity.’”10 Doiron ’s first
prong, Centaur posits, merely provides “a short-cut
for deciding whether a contract’s principal objective is
maritime commerce, but only for oil and gas contracts.” “Outside the oil and gas context, the test first
requires the court to ask whether the activity involves
maritime commerce and work from a vessel.” Lightering, 328 F. Supp. 3d at 637 (quotation marks omitted).
But Centaur’s position, though somewhat supported
by language in the caselaw, doesn’t adequately grapple
with Kirby, Doiron, or Crescent.
In Doiron, 879 F.3d at 576, we found “strong support in Kirby ” for our two-prong test. Several passages provide those buoys. First, Kirby states that
“[t]o ascertain whether a contract is a maritime one,
. . . the answer depends upon the nature and character
of the contract, and the true criterion is whether it
has reference to maritime service or maritime transactions.” Kirby, 543 U.S. at 23-24 (cleaned up). Next,
Kirby instructs that “[m]aritime commerce has
evolved . . . and is often inseparable from some landbased obligations.” Id. at 25. And finally, Kirby declares
That is understandable, given that Lightering was issued only
two days later.
10 Centaur seizes on one paragraph in Doiron, 879 F.3d at 575,
which begins “[o]ur cases have long held that the drilling and
production of oil and gas on navigable waters from a vessel is
commercial maritime activity.”
App.17a
that “[c]onceptually, so long as a bill of lading requires
substantial carriage of goods by sea, its purpose is to
effectuate maritime commerce—and thus it is a maritime contract.”11
Those statements are entirely consistent with
Doiron ’s standard as applied to any mixed-services
contract. Doiron’s first prong—though requiring some
nexus to the traditional maritime predicate of activity
on navigable waters12—doesn’t exclude non-sea-based
obligations. And Doiron’s second prong clarifies that
cursory or unexpected vessel involvement, even if
important, isn’t enough; the involvement must be substantial. In that sense, both prongs of Doiron stand in
for Kirby’s requirement that the “principal objective” of
the contract be maritime commerce. 13
11 Kirby, 543 U.S. at 27 (emphasis added). The Doiron en banc
court found particular support for its rule in that statement.
See Doiron, 879 F.3d at 576.
12 “In general, a contract relating to a ship in its use as such, or
to commerce or navigation on navigable waters, or to transportation
by sea or to maritime employment is subject to maritime law and
the case is one of admiralty jurisdiction, whether the contract is to
be performed on land or water.” 1 BENEDICT ON ADMIRALTY
§ 182 (Joshua S. Force & Steven F. Friedell eds., 2019); accord
Gulf Coast Shell & Aggregate LP v. Newlin, 623 F.3d 235, 240
(5th Cir. 2010); J.A.R., Inc. v. M/V Lady Lucille, 963 F.2d 96, 98
(5th Cir. 1992).
13 For that reason, applying Doiron to non-oil-and-gas contracts
won’t cause the sea change that Centaur fears. For example,
contracts for the sale of vessels would presumably remain nonmaritime. See, e.g., Newlin, 623 F.3d at 240; Jones v. One Fifty
Foot Gulfstar Motor Sailing Yacht, Hull No. 01 , 625 F.2d 44,
47 (5th Cir. 1980). As would contracts to build ships when the
construction doesn’t require vessels. See, e.g., E. River S.S.
Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 872 n.7 (1986);
App.18a
In short, Doiron’s two-part test applies as written
to all mixed-services contracts. To be maritime, a
contract (1) must be for services to facilitate activity
on navigable waters and (2) must provide, or the
parties must expect, that a vessel will play a substantial role in the completion of the contract.
IV.
Having fashioned the appropriate test—and
because “the interpretation of a maritime contract is a
question of law”—we now apply it. See Int’l Marine,
L.L.C. v. Integrity Fisheries Inc., 860 F.3d 754, 759
(5th Cir. 2017).
1.
The Dock Contract easily satisfies Doiron’s first
prong. It called for Centaur to install a concrete
containment rail at one of the Davant Facility’s
docks. That dock extended into the Mississippi River,
a waterway on which both DB-582 and the M/V
TROOPER were navigated. The dock was used to
load and offload ships carrying dry bulk materials.
And the containment rail was meant to prevent those
materials—principally coal and petroleum coke—from
spilling onto the dock or into the river, which would
result in adverse effects to both commerce and the
environment. Collectively, those facts establish that
the Dock Contract required services to be performed
to facilitate the loading, offloading, and transportation
of coal and petroleum coke via vessels on navigable
Thames Towboat Co. v. The Schooner “Francis McDonald”, 254 U.S.
242, 243 (1920); Jones, 625 F.2d at 47. So too would contracts for
wharfage that don’t relate to a specific vessel. See, e.g., Lightering,
328 F. Supp. 3d at 638 (collecting cases).
App.19a
waters. That some services were also performed on the
dock, which was affixed to the land, isn’t dispositive.14
2.
When considering whether there was substantial
involvement of a vessel, “[w]e must remember that
the contracting parties’ expectations are central.”
Crescent, 896 F.3d at 359. “When work is performed
in part on a vessel and in part on a platform or on
land, we should consider not only time spent on the
vessel but also the relative importance and value of the
vessel-based work to completing the contract.” Doiron,
879 F.3d at 576 n.47. Doiron suggests that a rule of
thumb similar to the thirty-percent guideline in Jones
Act cases might be useful. Id.15 But that “would not
include transportation to and from the job site.”16
Even significant vessel involvement isn’t enough if
that involvement was unexpected. Crescent, 896 F.3d
at 359-60.
Based on that standard, Doiron’s second prong is
likewise satisfied. The Dock Contract makes clear
that the parties expected DB-582 to play a significant
role in the completion of the work. Centaur’s project
14 See Kirby, 543 U.S. at 27 (“Its character as a maritime contract
is not defeated simply because it also provides for some land
carriage.”).
15 But that “figure . . . serves as no more than a guideline
established by years of experience, and departure from it will
certainly be justified in appropriate cases.” Chandris, Inc. v.
Latsis, 515 U.S. 347, 371 (1995).
16 Doiron, 879 F.3d at 576 n.47. River Ventures’s contentions
regarding the involvement of its crew boat to reach the worksite
are irrelevant.
App.20a
proposal indicated that the “[p]rice is significantly
higher due to having [a] crane barge on site to mix the
concrete and pour it for the concrete containment
rail.” It also stated that a “[t]ug boat will . . . need to
be present to shift the barge as needed.” Far from
being “an insubstantial part of the job and not work
the parties expected to be performed,” Doiron, 879
F.3d at 577, the proposal shows that the parties expected the barge to play a critically important role.
Moreover, Taylor Roy, Centaur’s lead project manager, admitted that “at the end of the day, Centaur
could not have done the job properly without [the]
crane barge.” That differs materially from Doiron,
where the vessel was used only after the “crew encountered an unexpected problem.” Id. Instead, like the
situation in Crescent, the parties here recognized
that DB-582 provided a necessary work platform, an
essential storage space for equipment and tools, and a
flexible area for other endeavors related to the construction work. See Crescent, 896 F.3d at 361.
The district court’s findings of fact show that the
parties’ expectations about the use of the barge were
borne out. Just as the proposal indicated, Centaur’s
crew used DB-582 to perform construction work for
the containment rail, including “drilling holes, cutting
rebar, and pouring forms.” The crew also used the
barge for several activities related to the construction,
including storing and packing tools, holding safety
meetings, taking breaks, and eating lunch. That
App.21a
Centaur’s workers may have worked on the dock a
majority of the time doesn’t alter that conclusion.17
****
In sum, the district court misapplied Doiron and
erroneously concluded that the Dock Contract was
nonmaritime. Because federal maritime law applies,
the LCAIS does not. The summary judgment is
REVERSED and REMANDED. We place no limitation
on the matters that the district court may consider,
as appropriate and in its discretion, on remand.
17 See Crescent, 896 F.3d at 359 (“Doiron did not hold that to
be a maritime contract, the parties must have contemplated
that a vessel will be used for a majority of the work.”).
App.22a
JUDGMENT OF THE UNITED STATES DISTRICT
COURT FOR EASTERN DISTRICT OF LOUISIANA
(FEBRUARY 5, 2019)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
________________________
DEVIN BARRIOS ET AL
v.
CENTAUR, LLC ET AL
________________________
Civil Action
No. 17-585
Section “H”(3)
Before: Jane Triche MILAZZO,
United States District Judge.
JUDGMENT
Considering the evidence admitted at trial, the
arguments of counsel and the Court’s findings of fact
and conclusions of law (Doc. 181);
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that Plaintiffs are entitled to judgment
against River Ventures, LLC on their 33:905(b) claim
in the amount of $3,308,094.55, plus prejudgment interest at a rate of 4% per annum on all past damages and
post judgment interest at a rate of 4% per annum on
all future damages until paid.
App.23a
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Defendant Centaur, LLC is entitled
to judgment in its favor, dismissing with prejudice
Plaintiff’s claims against it.
Signed in New Orleans, Louisiana this 5th day
of February, 2019.
/s/ Jane Triche Milazzo
United States District Judge
App.24a
FINDINGS OF FACT AND CONCLUSION OF THE
UNITED STATES DISTRICT COURT FOR
EASTERN DISTRICT OF LOUISIANA
(FEBRUARY 1, 2019)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
________________________
DEVIN BARRIOS ET AL.,
versus
CENTAUR, LLC ET AL.
________________________
Civil Action
No: 17-585
Section “H”
Before: Jane Triche MILAZZO,
United States District Judge.
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Plaintiff Devin Barrios and his wife, Megan
Barrios, bring claims for damages he sustained in
an accident that occurred while he was working a
construction job for Centaur, LLC. Plaintiffs bring
claims under the Jones Act and general maritime law
against Devin Barrios’s employer, Centaur, LLC. Plaintiffs also bring claims for negligence under the Longshore and Harbor Worker’s Compensation Act against
Centaur and River Ventures, LLC. This matter went
App.25a
to trial November 13 through 19, 2018. Having considered the evidence admitted at trial and the arguments of counsel, this Court makes the following
findings of fact and conclusions of law. To the extent
a finding of fact constitutes a conclusion of law, and
vice versa, the Court adopts it as such.
FINDINGS OF FACT
1. At all material times, Plaintiff Devin Barrios
was employed by Centaur, LLC (“Centaur”) and was
acting in the course and scope of his employment
when he was injured on January 25, 2016.
2. Centaur, a marine construction company, was
hired by United Bulk Terminals Davant, LLC (“UBT”)
to build a concrete containment wall around the edge
of its dock facility.
3. Barrios worked as a member of Centaur’s
construction crew performing manual labor.
4. Centaur leased a barge to assist in the containment wall project. The barge moved by winch along
the dock to assist in the project.
5. The barge was a vessel in navigation. The
mission of the barge was to assist Centaur in building
the containment wall.
6. The Court found the testimony of Brandon
Lavergne to be unreliable.
7. The Centaur crew stored tools for the containment wall project on the barge. They held safety
meetings, took breaks, and ate lunch aboard the barge.
They also unpacked and packed up tools aboard the
barge.
App.26a
8. The Centaur crew occasionally performed tasks
like drilling holes, cutting rebar, and pouring forms
aboard the barge, but the majority of the dock construction work was performed on the dock.
9. Barrios spent less than 30% of his time on the
barge in service of its mission.
10. Barrios is not a seaman.
11. UBT hired River Ventures, LLC (“River
Ventures”) to provide a crew boat, the M/V
TROOPER, to ferry Centaur workers and occasionally
their equipment from the parking lot to the area of
the dock upon which they were working.
12. River Ventures is the owner/operator of the
M/V TROOPER.
13. John Hanna is the owner/operator of River
Ventures.
14. John Ochello was the Captain of the M/V
TROOPER and an employee of River Ventures. Captain
Ochello remained in operational control of the M/V
TROOPER at all times.
15. Barrios was a passenger on the M/V
TROOPER, not a member of its crew.
16. On the morning of January 25, 2016, Plaintiff
and other members of the Centaur crew rode from
the parking lot to the barge on the M/V TROOPER.
They loaded a wheeled, portable generator from a
crew member’s truck in the parking lot on to the M/V
TROOPER for transport to the barge.
17. Plaintiff was injured while transferring the
portable generator from the M/V TROOPER to the
barge.
App.27a
18. The generator weighed more than 150 pounds.
19. At the time of the injury, the Centaur crew
transferred the generator in a manner that had been
done several times before.
20. While transferring the generator with the
assistance of another crewmember, Plaintiff placed
one foot on the crew boat and one foot on the rub rail
of the barge. After the generator was lifted from the
crew boat and placed onto the barge, the crew boat
and barge began to separate from each other, and
Plaintiff fell into the water below. As he was falling, he
grabbed onto the generator, which caused the generator
to fall into the water and strike Plaintiff on the head.
21. Plaintiff fell into freezing cold water and had
to swim out from underneath the barge before being
rescued by the M/V TROOPER further down the river.
22. The rope tied to the life ring aboard the M/V
TROOPER was tangled around the life ring. A member
of the Centaur crew threw the ring and its rope to
Plaintiff in the water but could not hold onto the end
of the rope because it was tangled.
23. Plaintiff’s fall into the water was a harrowing
experience. He testified that he “swam toward the
light” but did not know to which light he was swimming
or, apparently, whether he was dead or alive.
24. Captain Ochello did not moor the crew boat to
the barge before allowing the Centaur crew to perform
the transfer of the generator.
25. Instead of mooring the crew boat, Captain
Ochello used the “twin screwing” method wherein he
attempted to hold the vessel against the barge using
the thrust of the engines.
App.28a
26. This Court found the testimony of Robert
Borison, an expert in Marine Safety, and Patrick Cuty,
an expert in Vessel Operations, Root Cause Analysis,
& Transfer of People and Equipment to and from
Vessels, credible that tying off the crew boat to the
barge would have prevented the separation from occurring.
27. Captain Ochello was negligent for failing to
tie the M/V TROOPER to the barge during the transfer
and/or for failing to provide mooring lines on the M/V
TROOPER.
28. There were sufficient bits available on the
barge to tie up the M/V TROOPER.
29. Jerry Hanna testified that River Ventures had
no policy regarding tying off its vessels during the
transfer of equipment. He testified that he was aware
that Captain Ochello allowed pieces of equipment to
be offloaded from the M/V TROOPER without first
tying off the vessel.
30. The Court found credible the testimony of
Borison and Cuty that Plaintiff could not have pushed
the crew boat away from the barge as a result of his
side straddle. Plaintiff could not have provided enough
force to move the vessel if Captain Ochello was
holding the vessel steady with his engines.
31. Captain Ochello was negligent in failing to
hold the crew boat steady against the barge as the
generator was being transferred.
32. Captain Ochello’s negligence was the sole
cause of the accident in question.
33. The Centaur crew’s use of only two people to
move the portable generator from the M/V Trooper to
App.29a
the barge by hand was awkward and ill advised,
however, this was not the cause of the accident or
injury.
34. The failure to perform a job safety analysis
prior to moving the generator was not a cause of the
accident or Plaintiff’s injury and/or would not have
prevented the accident or Plaintiff’s injury.
35. Any alleged negligence by Centaur in failing to
properly train its employees in proper lifting techniques
was not a cause of the accident at issue here.
36. The alleged failure of Plaintiff to wear a chin
strap on his hard hat was not a cause of his injury
and/or would not have prevented his injury.
37. Plaintiff’s decision to side straddle the barge
and the crew boat was not a cause of his injury.
Plaintiff had no reason to believe that Captain Ochello
would not hold the vessel steady as he had done for
prior transfers.
38. Plaintiff was 22 years old at the time of the
accident.
39. Plaintiff received 28 staples in his head as a
result of the accident. He reported suffering neck
pain within a few days.
40. Dr. Peter Liechty, MD, Plaintiff’s treating
neurosurgeon, testified that an MRI of Plaintiff’s back
showed abnormal discs. Dr. Liechty performed a C4/5,
C5/6 anterior cervical discectomy and fusion surgery
in May 2017.
41. Dr. Liechty testified that because of Barrios’s
age, he will likely require an additional surgery to his
App.30a
cervical spine at some point. Defendants did not submit
any evidence to dispute this opinion.
42. The Court found Dr. Gerard Gianoli, MD,
Plaintiff’s treating neurotologist, to be very credible.
Dr. Gianoli testified that Plaintiff suffered a bilateral
perilymphatic fistula, labyrinth concussion, bilateral
benign positional vertigo, and some hearing loss from
the accident. Plaintiff suffers from spinning vertigo and
dizziness brought on by pressure-inducing activities.
Plaintiff will have to limit activities that cause head
pressure for the remainder of his life, including nose
blowing, lifting, air travel, and driving. Plaintiff’s
symptoms have become manageable with medication,
diet, and activity restriction. However, absent surgery,
Plaintiff’s condition will never completely resolve.
43. The Court found the opinion of Dr. Gerald
Calegan, an expert in neurology, to be most credible
on the issue of Plaintiff’s head injury. Dr. Calegan
opined that Barrios sustained a mild traumatic brain
injury, which contributes to his frequent headaches,
impaired balance, intermittent vertigo, insomnia, and
worsened mood. Dr. Calegan also opined that most of
Plaintiff’s disability is a result of his neck pain and
headaches, which contribute to his attention and
concentration difficulties.
44. Prior to this accident, Plaintiff suffered from
depression and anxiety. This accident has significantly
exacerbated those conditions.
45. Plaintiff’s condition presents a complicated
medical picture. Plaintiff continues to suffer from
headaches, neck pain, dizziness, inability to focus, and
confusion to the date of the trial. His condition is not
expected to significantly improve in the future.
App.31a
46. The Court finds that Plaintiff’s continued daily
use of narcotics may contribute to some of his ongoing
complaints of confusion and inability to focus. A
reduction in the use of narcotics may improve some
of the symptoms Plaintiff continues to experience.
47. All of the aforementioned injuries were caused
by the accident at issue here to a reasonable degree
of medical certainty.
48. The Court found the testimony of Dr. Todd
Cowen, an expert in physical medicine and rehabilitation, pain management, life care planning & physician
life care planning, to be credible. Dr. Cowen is both a
life care planner and a medical doctor and is qualified
to opine on Plaintiff’s future healthcare needs. Dr.
Cowen’s opinions were consistent with the testimony
of Plaintiff’s treating physicians.
49. Dr. Cowen estimates that in the future Plaintiff will require physical therapy, pain management,
treatment for his inner ear issues, and an additional
cervical spine surgery, totaling approximately $587,
509.87.
50. Plaintiff has incurred $289,301.68 in past
medical expenses.
51. Plaintiff has not worked since the accident.
52. Plaintiff’s work life expectancy from the date
of trial is 34.21 years.
53. In 2015, Plaintiff earned $25,724.76 annually.
54. Plaintiff’s past loss wages from the time of
the accident to the trial date are $65,647.00.
55. Given Plaintiff’s age and abilities, this Court
finds that it is more likely than not that he would
App.32a
have received incremental promotions throughout
the remainder of his working life.
56. If Plaintiff were unable to return to work for
the remainder of his working life, this Court agrees
with Randolph Rice’s calculation that the present value
of his future wage loss would be $1,665,636.00.
57. However, this Court finds that Plaintiff can
return to work at light and sedentary duty. Any future
employment should avoid the operation of heavy
machinery and heights. This Court also finds that
Plaintiff cannot secure employment as a draftsman
as suggested because of his difficulty in mathematics.
58. Plaintiff can obtain employment in the $7.25–
$10.00 per hour range, earning approximately $525,000
during his working life.
59. Plaintiff’s lost future earnings amount to
$1,140,636.00.
60. Plaintiff Devin Barrios is married to Plaintiff
Megan Barrios and they share a 3-year-old son.
61. The Court found the testimony of Meghan
Barrios compelling. Plaintiffs’ marriage has been
adversely impacted by Plaintiff Devin Barrios’s injuries.
Megan Barrios reports that Devin Barrios is less loving,
less social, more depressed, and more withdrawn than
prior to the accident. He is unable to help around the
house to the same level as before the accident. She
cannot trust him to watch their son alone because of
his inability to focus and tendency to get confused. In
addition, she testified that since the accident she feels
like more of a friend than a wife, and their intimate
relationship has dramatically changed.
App.33a
62. Plaintiff’s medical condition prevents him
from lifting his son or contributing to his care to his
desired level.
CONCLUSIONS OF LAW
JONES ACT AND MAINTENANCE AND CURE CLAIMS
AGAINST CENTAUR
1. “The Jones Act provides a cause of action in
negligence for ‘any seaman’ injured ‘in the course of
his employment.’” Chandris, Inc. v. Latsis, 515 U.S.
347, 354 (1995) (quoting 46 U.S.C. § 688(a)).
2. In addition, a seaman who becomes sick or
injured during his service to the ship is entitled to
maintenance and cure. Cooper v. Diamond M Co.,
799 F.2d 176, 178-79 (5th Cir. 1986) (citations omitted).
3. To maintain a cause of action under either
the Jones Act or for maintenance and cure benefits,
the plaintiff must be a seaman. Hufnagel v. Omega
Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999);
Hall v. Diamond M Co., 732 F.2d 1246, 1248 (5th Cir.
1984).
4. “The standard for determining seaman status
for purposes of maintenance and cure is the same as
that established for determining status under the
Jones Act.” Hall, 732 F.2d at 1248.
5. The Jones Act, however, does not provide a
definition of a ‘seaman.’” Chandris, Inc., 515 U.S. at
355. The Supreme Court has promulgated two requirements for an employee to achieve seaman status. Id. at
368. First, “an employee’s duties must contribute to
the function of the vessel or to the accomplishment of its
mission.” Id. Second, “a seaman must have a connection
App.34a
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.” Id. As a general rule of
thumb, “[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.” Id.
6. “[P]laintiff cannot claim time spent sleeping
or eating in this [seaman status] analysis, because
this time was not spent in the service of a vessel in
navigation.” Butcher v. Superior Offshore Int’l, LLC,
No. 07-8136, 2008 WL 5110629 (E.D. La. Dec. 2, 2008);
see Moore v. AEP Memco LLC, No. 07-1353, 2008
WL 3851574, at *5 (E.D. La. Aug. 13, 2008) (“[E]ating
lunch or seeking refuge from rough weather is not
the type of connection to a vessel or fleet of vessels
that creates seaman status.”); Butcher v. Superior
Offshore Int’l, Inc., 357 F. App’x 619, 620 (5th Cir.
2009) (“Butcher agreed with counsel’s question that
he worked thirty percent of his time on board the
vessel but this included time spent for meals and
breaks, which does not make Butcher a seaman.
Furthermore, Butcher’s testimony describing his daily
activity showed that he spent less than thirty percent
of his time actually working on board the MAGGIE.”).
7. Given the findings of fact herein, this Court
has found that Plaintiff was not a seaman. Plaintiff
spent insufficient time in service of the vessel to
attain seaman status.
8. Plaintiff cannot succeed on his claims under
the Jones Act or for maintenance and cure against
his employer, Centaur.
App.35a
33 U.S.C. § 905(B) VESSEL NEGLIGENCE
RIVER VENTURES
AGAINST
9. Under 33 U.S.C. § 905(b) of the Longshore and
Harbor Worker’s Compensation Act (“LHWCA”), an
injured worker may bring a claim against a vessel
owner for vessel negligence.
10. Section 905(b) “preserves an injured worker’s
pre-existing right, under general maritime law, to
recover for third-party negligence.” May v. Transworld
Drilling Co., 786 F.2d 1261, 1264 (5th Cir. 1986).
11. “To establish maritime negligence, a plaintiff
must demonstrate that there was a duty owed by the
defendant to the plaintiff, breach of that duty, injury
sustained by [the] plaintiff, and a causal connection
between the defendant’s conduct and the plaintiff’s
injury.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370,
376 (5th Cir. 2000).
12. “It is a settled principle of maritime law that
a shipowner owes the duty of exercising reasonable
care towards those lawfully aboard the vessel who
are not members of the crew.” Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 630 (1959).
“[V]essel owners owe their passengers a duty of
reasonable care under the circumstances.” Deperrodil
v. Bozovic Marine, Inc., 842 F.3d 352, 357 (5th Cir.
2016). The Fifth Circuit has held that “‘shipowners,
relatively speaking, are held to a high degree of care
for the safety of their passengers.’” Id. (quoting Smith
v. Southern Gulf Marine Co. No. 2, 791 F.2d 416, 420
(5th Cir. 1986)). A duty of reasonable care under the
circumstances includes “a duty to provide a safe egress
from its vessel and a duty to warn . . . of any dangers
of which [the shipowner] knew or should have known.”
App.36a
Gonzales v. River Ventures, LLC, No. 15-2145, 2017
WL 1364842, at *10 (E.D. La. Apr. 14, 2017) (Brown,
J.).
13. River Ventures and Captain Ochello owed
Plaintiff, a passenger on the M/V TROOPER, a duty
of reasonable care, including a duty to provide a safe
egress from the vessel.
14. Captain Ochello breached his duty to Plaintiff
in failing to provide for a safe transfer. Specificallly
[sic], Ochello failed to (1) moor the M/V TROOPER to
the barge during the transfer and (2) hold the M/V
TROOPER steady to the barge during the transfer.
15. Captain Ochello’s negligence caused the M/V
TROOPER to separate from the barge during the
transfer.
16. Captain Ochello’s negligence was the sole
proximate cause of the injuries sustained by Plaintiff.
17. River Ventures is liable to Plaintiffs for the
negligence of its Captain under 33 U.S.C. § 905(b) for
the damages that Plaintiffs sustained as a result of
the incident at issue here.
33 U.S.C. § 905(B) VESSEL NEGLIGENCE AGAINST
CENTAUR
18. Plaintiff next alleges that Centaur was
negligent in its capacity as operator of the barge for
failing to provide a crane operator to utilize the crane
to move the portable generator.
19. “When an employer acts in a dual capacity
as vessel owner, the entity retains its immunity for
acts taken in its capacity as an employer, but may
still be sued ‘qua vessel’ for acts of vessel negligence.”
App.37a
Levene v. Pintail Enterprises, Inc., 943 F.2d 528, 531
(5th Cir. 1991).
20. Plaintiffs have not carried their burden to
show that Centaur was negligent for failing to provide
a crane operator to move the portable generator.
21. Failure to use a crane to move the portable
generator was not a cause in fact of the accident in
question.
LIMITATION OF LIABILITY
22. The Limitation of Liability Act provides in
relevant part that “the liability of the owner of a vessel
for any claim, debt, or liability described in subsection
(b) shall not exceed the value of the vessel and pending
freight.” 46 U.S.C. § 30505. “The determination of
whether a shipowner is entitled to limitation employs a
two-step process. First, the court must determine what
acts of negligence or conditions of unseaworthiness
caused the accident. Second, the court must determine
whether the shipowner had knowledge or privity of
those same acts of negligence or conditions of
unseaworthiness.” Farrell Lines Inc. v. Jones, 530 F.2d
7, 10 (5th Cir. 1976). Once, as here, negligence of the
vessel has been established, the owner can limit its
liability only by proving “it lacked privity or
knowledge of the condition.” Petition of Kristie Leigh
Enterprises, Inc., 72 F.3d 479, 481 (5th Cir. 1996).
23. “There is a duty to inquire about conditions
and practices likely to produce or contribute to loss,
unless appropriate means are adopted and adhered
to in order to prevent loss.” Gabarick v. Laurin Mar.
(Am.), Inc., 900 F. Supp. 2d 669, 677 (E.D. La. 2012),
aff’d, 551 F. App’x 228 (5th Cir. 2014).
App.38a
24. Given the fact that the owner of River Ventures, Jerry Hanna, was aware of Captain Ochello’s
unsafe custom of allowing equipment to be offloaded
from the M/V TROOPER without first tying up the
vessel and Mr. Hanna did not institute a policy
regarding the safe transfer of equipment from the
M/V TROOPER, River Ventures is not entitled to
limitation of liability.
DAMAGES
25. “[I]n actions brought under § 905(b), an
injured LHWCA covered employee may recover those
items of damages which are recoverable under the
general maritime law, including monetary recovery
for past and future loss of earning capacity and
wages, past and future medical expenses, and pain
and suffering resulting from an injury caused by the
defendant’s negligence. Associated Terminals of St.
Bernard, LLC v. Potential Shipping HK Co., 324 F.
Supp. 3d 808, 823 (E.D. La. 2018).
26. To determine lost future earnings, the Court
must “estimat[e] the loss of work life resulting from
the injury or death, calculat[e] the lost income stream,
comput[e] the total damage, and discount[] that amount
to its present value. [C]alculation of the lost income
stream begins with the gross earnings of the injured
party at the time of injury.” Mayne v. Omega Protein
Inc., 370 F. App’x 510, 517 (5th Cir. 2010).
27. “The base figure used to calculate future wage
loss is the difference between what a person could
have earned ‘but for’ the accident and what he is able
to earn upon returning to work in his partially disabled state.” Masinter v. Tenneco Oil Co., 867 F.2d
App.39a
892, 899 (5th Cir. 1989) mandate recalled & modified
on other grounds, 934 F.2d 67 (5th Cir. 1991).
28. “Evidence about the likelihood that the earnings of an injured worker would increase due to personal merit, increased experience and other individual
and societal factors” is admissible to show lost future
earnings. Culver v. Slater Boat Co., 722 F.2d 114, 122
(5th Cir. 1983)
29. General damages are available “for pain and
suffering and impact on one’s normal life routines.”
Barto v. Shore Const., L.L.C., 801 F.3d 465, 473 (5th
Cir. 2015).
30. In calculating Plaintiff’s general damages,
this Court considered the similar injuries sustained
by the plaintiff in Terrebonne v. Goodman Mfg. Corp.,
687 So. 2d 124 (La. App. 5 Cir. 1996), and took into
account inflation since that award was given. The
court in Terrebonne awarded the plaintiff $875,000
in general damages after he sustained a brain concussion and a concussive injury to his left inner ear
after a fall from a truck. Id. The plaintiff suffered
from constant headaches and dizzy spells, and his
family reported that he was moody, irritable, and
withdrawn. Id.
31. “If an LHWCA employee can properly assert
a § 905(b) claim for vessel negligence, then his spouse
can properly assert a loss-of-consortium claim.” White
v. Cooper/T. Smith Corp., 690 F. Supp. 534, 540 (E.D.
La. 1988).
32. Plaintiffs are entitled to prejudgment interest
at a rate of 4% per annum from the date of judgment
until paid on all past damages. See Offshore Marine
Contractors, Inc. v. Palm Energy Offshore, L.L.C.,
App.40a
779 F.3d 345, 351 (5th Cir. 2015); Hernandez v. M/V
Rajaan, 841 F.2d 582, 591 (5th Cir.), opinion corrected
on denial of reh’g on other grounds, 848 F.2d 498
(5th Cir. 1988).
33. Plaintiffs are entitled to damages in the
following amounts:
Past medical expenses:
$ 289,301.68
Future medical expenses:
$ 587,509.87
Past lost wages:
$ 65,647.00
Future lost earnings:
$ 1,140,636.00
Past and future general damages: $ 975,000.00
Loss of consortium:
$ 250,000.00
Total:
$ 3,308,094.55
CONCLUSION
For the foregoing reasons, Plaintiffs are entitled
to judgment against River Ventures, LLC on their 33
U.S.C. § 905(b) claim in the amount of $3,308,094.55.
Defendant Centaur, LLC is entitled to judgment in
its favor, dismissing with prejudice Plaintiff’s claims
against it.
New Orleans, Louisiana this 1st day of February,
2019.
/s/ Jane Triche Milazzo
United States District Judge
App.41a
ORDER AND REASONS OF THE
UNITED STATES DISTRICT COURT FOR
EASTERN DISTRICT OF LOUISIANA
(OCTOBER 22, 2018)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
________________________
DEVIN BARRIOS ET AL.
v.
CENTAUR, LLC ET AL.
________________________
Civil Action
No. 17-585
Section: “H” (1)
Before: Jane Triche MILAZZO,
United States District Judge.
ORDER AND REASONS
Before the Court are Defendant Centaur LLC’s
Motion for Summary Judgment (Doc. 72); Defendant
River Ventures, LLC’s Partial Motion for Summary
Judgment (Doc. 75); and Centaur LLC’s Motion for
Summary Judgment on River Venture’s Cross-Claim
(Doc. 85). For the following reasons, Centaur’s Motion
for Summary Judgment is DENIED; River Venture’s
Motion for Partial Summary Judgment is GRANTED;
and Centaur’s Motion for Summary Judgment on
River Venture’s Cross-Claim is GRANTED.
App.42a
BACKGROUND
Plaintiff Devin Barrios alleges that he was injured
while working for Defendant Centaur, LLC (“Centaur”)
as a Jones Act seaman. Barrios was hired by Centaur, a
marine construction company, to work on a construction
project to build a concrete containment wall around
the edge of a dock facility owned by United Bulk
Terminals Davant, LLC (“UBT”). Centaur leased a
barge to house its equipment during the project.
UBT contracted with River Ventures, LLC (“River
Ventures”) to provide a crew boat to transport Centaur’s
employees to and from the project. Plaintiff alleges
that he was injured while transferring a portable
generator from the crew boat to the barge when the
crew boat separated from the barge and he fell into
the river, followed by the 100lb generator. Plaintiff
brought claims under the general maritime law and
Jones Act against both Centaur and River Ventures.
River Ventures then filed a cross-claim against Centaur
seeking indemnity and insurance pursuant to a Master
Service Agreement (“MSA”) entered into between
UBT and Centaur regarding all construction projects
performed by Centaur for UBT.
Defendants Centaur and River Ventures have
filed cross-motions for summary judgment regarding
Plaintiff’s seaman status. Centaur, Plaintiff’s employer,
argues that Plaintiff is not a seaman and therefore
his only remedy against it is for compensation under
the LHWCA. River Ventures argues the barge at issue
is a vessel in navigation, but that material issues of
fact exist as to Plaintiff’s seaman status. In addition,
Centaur moves for summary judgment on River
Venture’s cross-claim, arguing that the Louisiana
Construction Anti-Indemnity Statute applies to the
App.43a
MSA to prohibit the indemnity and additional insured
provisions therein. This Court will consider each
Motion in turn.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment
as a matter of law.”1 A genuine issue of fact exists
only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”2
In determining whether the movant is entitled to
summary judgment, the Court views facts in the light
most favorable to the non-movant and draws all
reasonable inferences in his favor.3 “If the moving
party meets the initial burden of showing that there
is no genuine issue of material fact, the burden shifts to
the non-moving party to produce evidence or designate
specific facts showing the existence of a genuine issue
for trial.”4 Summary judgment is appropriate if the
non-movant “fails to make a showing sufficient to
establish the existence of an element essential to that
party’s case.”5 “In response to a properly supported
1 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir.
1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462
(5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
App.44a
motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate
the manner in which that evidence supports that
party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all
issues as to which the non-movant would bear the
burden of proof at trial.”6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could
or would prove the necessary facts.”7 Additionally,
“[t]he mere argued existence of a factual dispute will
not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
The summary judgment motions before the Court
dispute two issues: (1) Plaintiff’s seaman status, and
(2) River Venture’s entitlement to indemnity and
insurance pursuant to the MSA between UBT and
Centaur. This Court will consider these issues in turn.
I.
Seaman Status
“The Jones Act provides a cause of action in negligence for ‘any seaman’ injured ‘in the course of his
employment.’”9 The Jones Act provides heightened
legal protections to seamen because of their exposure
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force,
379 F.3d 293, 301 (5th Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La.
2005).
9 Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (quoting 46
U.S.C. § 688(a)).
App.45a
to the inherent dangers of the high seas and was
intended to provide remedial protections to sea-based
maritime workers.10 The Act, however, does not provide a definition of a “seaman.”11 Instead, the Supreme
Court has promulgated two requirements for an
employee to achieve seaman status.12 First, “an
employee’s duties must contribute to the function of
the vessel or to the accomplishment of its mission.”13
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.”14 As a general rule of
thumb, “[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.”15
These motions present two main issues as to
Plaintiff’s seaman status: (1) whether the barge was a
“vessel in navigation” and (2) how much time Barrios
spent working aboard the vessel.
A. Vessel in Navigation
Both Centaur and River Ventures have moved
for summary judgment regarding whether the barge
was a vessel in navigation. “The term vessel has
10 Id.
11 Id. at 355.
12 Id. at 355.
13 Id. (internal quotations omitted).
14 Id.
15 Id. at 371.
App.46a
generally been defined broadly and, in its traditional
sense, refers to structures designed or utilized for
transportation of passengers, cargo or equipment
from place to place across navigable waters.”16 “The
Supreme Court has specified that the relevant inquiry
in determining vessel status is ‘whether the watercraft’s
use as a means of transportation on water is a practical
possibility or merely a theoretical one.’”17 “[A] watercraft is not practically capable of maritime transportation ‘unless a reasonable observer, looking to the
[watercraft’s] physical characteristics and activities,
would consider it designed to a practical degree for
carrying people or things over water.’”18
The evidence shows that the barge was used to
hold equipment and supplies needed for the construction job on the dock, such as pallets of concrete and a
cherry picker. Although it was not capable of selfpropulsion, it moved approximately every other day
by tug boat or winch. The barge moved up and down
the dock by winch to assist with the ongoing project.
It also moved by tug boat from the dock to land to
retrieve additional supplies for the project.
Centaur argues that the facts show that the barge
was a work platform and not a vessel in navigation.
“[T]he Fifth Circuit has repeatedly held that barges
are not vessels when they are permanently attached
16 Bernard v. Binnings Const. Co., 741 F.2d 824, 828-29 (5th Cir.
1984)
17 Gautreaux v. Trinity Trading Grp., Ltd., No. 12-2851, 2014
WL 1414576, at *1 (E.D. La. Apr. 11, 2014) (quoting Stewart v.
Dutra Construction Co., 543 U.S. 481, 497 (2005)).
18 Id. (quoting Lozman v. City of Riviera Beach, Fla., 133 S.Ct.
735, 745 (2013)).
App.47a
to land, and when any transportation function is
incidental to their primary purpose as a non-vessel
work platform.”19 Here, there is no evidence that the
barge was permanently attached to land, and although
it lacked a means of self-propulsion, it did in fact
move frequently. It cannot be said that this movement
was merely incidental because it was necessary to provide supplies and equipment to the dock construction
project. The movement of the barge at issue here was
not simply theoretical, but it was actually used for
the transportation of equipment and supplies over
water.20 Accordingly, this Court holds that the barge
was a vessel in navigation.21
B. Time Working on Vessel
In determining Plaintiff’s seaman status, the
Court must next consider the amount of time Plaintiff
spent working aboard the barge. Centaur argues that
Barrios is not a seaman because he spent most of his
time working on the dock, not the barge, and the only
evidence to the contrary is Barrios’s own testimony.
River Ventures and Barrios argue that there is a
material issue of fact regarding how much time
Barrios spent on the vessel and summary judgment
is therefore inappropriate.
19 Young v. T.T. Barge Servs. Mile 237, LLC, 290 F. Supp. 3d 562,
567 (E.D. La. 2017).
20 See Gautreaux, 2014 WL 1414576, at *1; Michel v. Total
Transp., Inc., 957 F.2d 186, 190 (5th Cir. 1992).
21 Centaur makes much ado about the Plaintiff’s lack of
involvement in the moving of the barge. This Court can find no
case law indicating that such a fact has any bearing on the
barge’s vessel status. The test requires the Court to consider
whether the barge moves, not who is involved in its movement.
App.48a
Centaur is correct that while Barrios testified
that he spent 80% of his time on the vessel, at least
five other Centaur and dock employees testified that the
number was closer to 20%.22 However, these estimations may conflict with some testimony regarding
what work Barrios actually performed aboard the
barge. Barrios testified that he welded, grinded,
diagramed and moved concrete on the barge. He also
testified that the barge was used to “stand on to
build—to mount the forms to the dock that you pour
the concrete in.”23 In addition, there is testimony from
at least one other dock employee that he witnessed
the Centaur crew mixing concrete, putting template
and rebar in, and pouring concrete from the barge.24
These facts indicate that substantially more work
occurred aboard the vessel than the 20% attested to
by some of the Centaur and dock employees, creating
a material issue of fact.
Indeed, “[t]he seaman inquiry is a mixed question
of law and fact, and it is often inappropriate to take
the question from the jury.”25 “[S]ummary judgment
22 William Vernor, a dock employee, estimated 20% to 30% of work
time was spent on the barge, including break time and lunch
time. Craig Rink, Centaur foreman, testified 15% to 20%. Brody
Ledet, Plaintiff’s direct supervisor, testified 20%. Dylan Ledet,
a Centaur laborer, testified 20%, and Andrew Breland, the dock
project manager, testified 10% to 15%. The parties dispute the
admissibility of Brandon Lavergne’s testimony, but this issue
need not be reached here.
23 Doc. 74-2, p. 9.
24 Robert Rodriguez Deposition, Doc. 74-10.
25 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997)
(internal citations omitted).
App.49a
on seaman status is proper where the only rational
inference to be drawn from the evidence is that the
worker is not a seaman.”26 Here, there is sufficient
conflicting evidence that a jury might draw more
than one inference regarding the amount of time that
Barrios spent working aboard the barge, and ultimately
his seaman status. Accordingly, summary judgment
on seaman status is denied.
II.
Contractual Indemnity
In its cross-claim against Centaur, River Ventures
seeks indemnity and insurance pursuant to the MSA
between UBT and Centaur. Centaur has moved for
summary judgment arguing that the Louisiana
Construction Anti-Indemnity Statute applies to the
MSA to prohibit the indemnity and additional insured
provisions therein. River Ventures argues that maritime law, not Louisiana law, applies to the MSA to
allow these provisions. The issue then becomes whether
the MSA between UBT and Centaur is a maritime
contract.
Relying on the Fifth Circuit’s decision in In re
Larry Doiron, the parties appear to agree that a
contract is a maritime contract if: (1) the work Centaur
was performing for UBT involves maritime commerce,
(2) it involved work from a vessel, and (3) the
contract provided or the parties expected that a
vessel would play a substantial role in completing
the contract.27 Although Doiron dealt specifically with
26 Bernard v. Binnings Const. Co., 741 F.2d 824, 828 (5th Cir.
1984).
27 879 F.3d 568 (5th Cir. 2018), This is the approach taken in
Lightering LLC v. Teichman Group, LLC, No. H-17-3374, 2018
App.50a
contracts in the oil and gas context, it stated that, “If
an activity in a non-oil and gas sector involves maritime
commerce and work from a vessel, we would expect
that this test would be helpful in determining whether
a contract is maritime.”28 Accordingly, this Court will
consider these factors in turn.
1. Maritime Commerce
River Ventures argues that the contract involved
maritime commerce because the containment wall was
being built on the dock to keep coal and other products being offloaded from barges from falling into
the river. Centaur argues that the contract was one
for the construction of a concrete lip on a dock and thus
does not involve maritime commerce. It argues that
the fact that the construction project might have
incidentally facilitated maritime commerce is insufficient.
The district court in Lightering LLC v. Teichman
Group was first to consider the Doiron test in a nonoil and gas context.29 In that case, the contract was one
for the wharfage of workboats, the storage of lightering
equipment, and the loading and unloading of lightering
WL 3428561, at *11 (S.D. Tex. July 16, 2018), the only case to
have interpreted Doiron in a non-oil and gas context so far.
28 In re Larry Doiron, 879 F.3d at 577 n.52. The Doiron test asks:
“First, is the contract one to provide services to facilitate the
drilling or production of oil and gas on navigable waters?” and
“Second, if the answer to the above question is ‘yes,’ does the
contract provide or do the parties expect that a vessel will play
a substantial role in the completion of the contract?” Id.
29 Lightering LLC, 2018 WL 3428561.
App.51a
equipment from workboats.30 The court held that
although lightering is a traditional maritime activity,
the contract at issue was merely one that facilitated
lightering.31 The court stated that, “The fact that the
Agreement supported [the] lightering operations is
informative, but not dispositive. A wide range of nonmaritime activities, entirely land based, can ‘facilitate’
maritime commerce. Instead, the court must consider
the substance of the Agreement.”32 The court concluded
that only the loading and unloading component of
the agreement was maritime and that this component
was incidental to the non-maritime objective of the
agreement.33
The Supreme Court instructs that the Court
should consider whether the “principal objective” of a
contract is maritime commerce.34 Here, the primary
objective of the UBT/Centaur MSA is the construction
of a concrete lip on UBT’s dock. Like in Lightering, this
objective merely facilitates the traditional maritime
commerce activity of loading and unloading vessels.
This Court holds that the land-based construction
contract at issue here is non-maritime. It therefore
need not consider the other Doiron factors.
30 Id. at *2.
31 Id. at *11
32 Id.
33 Id.
34 Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25 (2004).
App.52a
2. Louisiana Construction Anti-Indemnity Statute
(LCAIS)
Because the MSA is non-maritime, the parties
agree that it is governed by Louisiana law. Centaur
argues that the Louisiana Construction Anti-Indemnity
Statute (LCAIS) applies to prohibit the indemnity
and insurance provisions of the MSA. The LCAIS states
that provisions in a construction contract are “null,
void, and unenforceable” which (1) purport to indemnify, defend, or hold harmless the indemnitee from any
liability resulting from its own negligent or intentional
acts, or (2) purport to require an indemnitor to procure
liability insurance covering the acts or omissions of
the indemnitee.35
River Ventures responds that the indemnity and
insurance provisions in the MSA fall within a particular
exception to the LCAIS’s prohibition. The exception
states that the anti-indemnity rule does not apply when
“there is evidence that the indemnitor recovered the
cost of the required insurance in the contract price.”36
River Ventures points to testimony from three Centaur
employees indicating that it considered overhead costs
such as insurance in bidding on the construction job.
This Court finds instructive courts’ interpretations
of a similar exception to the Louisiana Oilfield Indemnity Act (LOIA). In Marcel v. Placid Oil Co., the Fifth
Circuit recognized an exception to LOIA “when the
principal pays the entire cost of its own insurance
coverage by securing an endorsement naming it as an
35 La. Rev. Stat. § 9:2780.1.
36 Id.
App.53a
insured in the contract or policy.”37 “[T]he exception
does not apply if any material part of the cost of
insuring the indemnitee is borne by the independent
contractor procuring the insurance coverage.”38 Here,
the fact that Centaur may have considered insurance
coverage in calculating its bid does not establish that
UBT paid the full amount of the premium or that
Centaur did not pay any material part. River Ventures
has not carried its burden to show that UBT paid the
full amount of its insurance premium and that the
LCAIS exception applies. Accordingly, LCAIS applies
to prohibit the indemnity and insurance provisions of
the MSA.
CONCLUSION
For the foregoing reasons, Centaur’s Motion for
Summary Judgment is DENIED; River Venture’s
Motion for Partial Summary Judgment is GRANTED;
and Centaur’s Motion for Summary Judgment on
River Venture’s Cross-Claim is GRANTED. River
Venture’s Cross-Claim against Centaur is DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana this 22nd day of October, 2018.
/s/ Jane Triche Milazzo
United States District Judge
37 Rogers v. Samedan Oil Corp., 308 F.3d 477, 481 (5th Cir. 2002)
(discussing Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994)).
38 Marcel, 11 F.3d at 570.
App.54a
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT DENYING
PETITION FOR REHEARING EN BANC
(DECEMBER 16, 2019)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
DEVIN BARRIOS; ET AL,
Plaintiffs,
v.
CENTAUR, L.L.C.,
Defendant
Cross Defendant
Appellee,
v.
RIVER VENTURES, L.L.C.,
Defendant
Cross Claimant
Appellant.
________________________
No. 18-31203
Appeals from the United States District Court
for the Eastern District of Louisiana
Before: JONES, SMITH,
and HAYNES, Circuit Judges.
App.55a
ON PETITION FOR REHEARING EN BANC
(Opinion 11/11/19, 5 Cir., 2019, 942 F.3d 670)
PER CURIAM:
Treating the Petition for Rehearing En Banc as
a Petition for Panel Rehearing, the Petition for Panel
Rehearing is DENIED. No member of the panel nor
judge in regular active service of the court having
requested that the court be polled on Rehearing En
Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition
for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
/s/ Jerry Edwin Smith
United States Circuit Judge
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