Petition — International Mooring & Marine, Inc. v. Bertrand
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26 1983 |
OCTOBER TERM, 1983
INTERNATIONAL MOORING & MARINE, INC., ET AL
versus
Petitioners
DEBORAH M. BERTRAND, ETC., ET AL
Respondents
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Raymond Morgan Alien,
Randall K. Theunissen
ALLEN, GOOCH, BOURGEOIS,
BREAUX & ROBISON
P.O. Drawer 3768
Lafayette, La. 70502
(318) 233 - 5066
Attorneys for Defendant-Petitioner,
International Mooring & Marine, inc.
Robert M. Contois, Jr., Counsel of Record
Edward R. Getz
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE
225 Baronne Street
New Orleans, Louisiens 70112
(504) 581 - 6641
Attorneys for DefendantPetitioner,
Arkwright-Boston Manufacturers
Mutual Insurance Company
W. Gerald Gaudet,
VOORHIES & LABBE’
718 South Buchanen Street
Lafayette, Louisisna 70502
(318) 232 - 9700
Attorneys for Defendant-Petitioner,
Amer’ an General insurance Compeny
i
QUESTIONS PRESENTED FOR REVIEW
Petitioners submit that their application for a Writ of
Certiorari to the Court of Appeals for the Fifth Circuit
presents the following question for review:
Whether the rule applied by the Fifth Circuit for deter-
mining seaman status under the Jones Act fails to consider
the essential element of whether the individual worker’s
duties aided in the navigation of the vessel on which he
was working, contrary to this Court’s decision in South
Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940),
and in conflict with the Third Circuit decision in Simko vy.
C&C Marine Maintenance Co., 594 F.2d 960 (3d Cir.
1978), cert. denied, 444 U.S. 833 (1979).
ii
TABLE OF CONTENTS
Page
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APPENDIX:
Opinion of the United States Court of Appeals for
the Fifth Circuit, dated March 17, 1983.......... A-l
Order of the Fifth Circuit dated June 27, 1983,
denying applications for rehearing;............. A-22
Judgment of the United States District Court for
the Western District of Louisiana, dated June
I A ea ee a A-24
Additional judgment of the United States District
Court for the Western District of Louisiana,
a a | A-26
Corrected ruling on motion for summary judgment
in the United States District Court for the
Western District of Louisiana, with Attachments . .A-28
ili
TABLE OF AUTHORITIES
Page
Cases:
Ber‘rand vy. International Mooring Marine. Inc..
517 F. Supp. 342 (W.D. La. 1981), 700 F.2d
PG GI BEET och heh ek cbc ts toeeaestee 1,10
Guidry v. Continental Oil Co., 640 F.2d 523 (Sth
Ce See 2 eo hk a wb can ech wee eee 8
McKie v. Diamond Marine Co., 204 F.2d 132
CE, CRE i hs cd bay whe ka ee Rae ee: hats 9
Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir.
SE a Fk UW eae Oks wed ed sles kee 9,10
Simko v. C & C. Marine Maintenance Co., 594 F.2d
960 (3d Cir. 1978), cert. denied, 444 USS.
ee NE os ais Sia wy oo hee eck de ae ee i, 8,10,13,15
South Chicago Coal & Dock Co. v. Bassett, 60
S.Ct. 544 (1940) ...... i, 8. 10, 11, 12,.13, 35, 16, 7
Statutes and Other Authorities:
aT es EERE 6 a Ok oe U0 o's Obs ope eRe ]
DONS ik ae ER 6 cdot Dede eet 2 308
United States Longshoremen’s and Harbor Work-
ers’ Compensation Act, 33 U.S.C. § §901-50 ... .2,3,4
11, 12,13, 16
Outer Continental Shelf Lands Act, 43 U.S.C.
DAR oF i625. 0oS0 es URN oop che dend een 2,3
iv
LIST OF PARTIES
The following are the parties to this proceeding in the
United States Court of Appeals for the Fifth Circuit:
Deborah M. Bertrand, personal representative
of Emile Bertrand, III, Plaintiff-appellant
Lisa A. Bertrand, personal representative of
Paul Anthony Bertrand, Plaintiff-appellant
Marilyn Emery Smith and Lawrence Emery,
surviving parents of William D. Emery,
Plaintiffs-appellants
Shmuel Mezan, Piaintiff-appellant
Fidelity & Casualty Company, Defendant-
appellant
International Mooring & Marine, Inc., Defen-
dant-appellee
American General Insurance Company, De-
fendant-appellee
Arkwright-Boston Manufacturers Mutual In-
surance Company, Defendant-appellee
Pursuant to Rule 28.1, petitioners state that the parent
company of International Mooring & Marine, Inc. is IMM
Energies and Technology, Inc., and that the following is a
list of subsidiary and affiliated companies of International
Mooring & Marine, Inc.:
IMM Raybum, Inc.
First Inmar of Louisiana
First Inmar of Texas
Second Inmar of Louisiana
a
No.
UNITED STATES SUPREME COURT
OCTOBER TERM, 1983
INTERNATIONAL MOORING & MARINE, INC., ET AL
Petitioners
VERSUS
DEBORAH M. BERTRAND, ETC., EY AL
Respondents
ON PETITION FOR WRIT CF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
DECISIONS BELOW
The opinion of the United States District Court for the
Western District of Louisiana is reported at 517 F.Supp.
342 (1981). The opinion of the United States Court of
Appeals for the Fifth Circuit is reported under the title
Bertrand v. International Mooring & Marine, Inc., 700
F.2d 240 (Sth Cir. 1983).
JURISDICTION
Petitioners seek a writ to the United States Court of
Appeals for the Fifth Circuit to review its decision and
order filed on March 17, 1983. An application for rehear-
ing was denied by the Court of Appeals in an order entered
on June 27, 1983. This court has jurisdiction pursuant to
U.S.C. §1254(1).
2
STATUTES INVOLVED
This petition raises issues under the Jones Act, 46
U.S.C. §688, the Longshoremen’s & Harbor Workers’
Compensation Act, 33 U.S.C. §§901-50, and the Outer
Continental Shelf Lands Act, 43 U.S.C. §1333.
This petition specifically raises issues under the follow-
ing provisions of the Jones Act:
Recovery for Injury to or Death
of Seaman
Any seaman who shall suffer personal injury
in the course of his employment may, at his
election, maintain an action for damages at
law, with the right of trial by jury, and in
such action all statutes of the United States
modifying or extending the common law right
or remedy in cases of personal injury to rail-
way employees shall apply; and in case of the
death of any seaman as a result of any such
personal injury the personal representative of
such seaman may maintain an action for
damages at law with the right of trial by jury,
and in such action all statutes of the United
States conferring or regulating the right of
action for death in the case of railway em-
ployees shall be applicable.
46 U.S.C. §688
This petition raises issues under the following provisions
of the United States Longshoremen’s & Harbor Workers’
Compensation Act:
3
Coverage
(a) Compensation shall be payable under this
Chapter in respect of disability or death of an
employee, but only if the disability or death
results from an injury occurring upon the
navigable waters of the United States (includ-
ing any adjoining pier, wharf, dry-dock, ter-
minal, buildingway, marine railway, or other
adjoining area customarily used by an em-
ployer in loading, unloading, repairing, or
building a vessel. No compensation shall be
payable in respect of the disability or death
of — (1) a master or member of a crew of any
vessel, or any person engaged by the master to
load or unload or repair any small vessel
under 18 tons net. . .
33 U.S.C. §903
This petition also raises issues under the following
provisions of the Outer Continental Shelf Lands Act:
Longshoremen’s & Harbor Workers’
Compensation Act Applicable;
Definitions
(b) With respect to disability or death of an
employee resulting from any injury occurring
as the result of operations conducted on the
outer Continental Shelf for the purpose of
exploring for, developing, removing, or trans-
porting by pipeline the natural resourses, or
involving rights to the natural resources, of
the sub soil and seabed of the Outer Con-
tinental Shelf, compensation shall be payable
under the provisions of the Longshoremen’s &
4
Harbor Workers’ Compensation Act. For the
purpose of the extension of the provisions of
the Longshoremen’s & Harbor Workers’ Com-
pensation Act under this section = (1) the
term “employee” docs not include a master
or member of a crew of any vessel, or an
officer or employee of the United States or
any agency thereof or of any state or foreign
government, or of any political subdivision
thereof...
43 U.S.C, §1333
STATEMENT OF CASE
These consolidated cases arose out of a one vehicle
collision on April 14, 1979, which injured Shmuel
Mezan and killed Emile Bertrand, II], Paul Bertrand,
and William Emery. At the time of the accident, all
four plaintiffs were employees of International Mooring &
Marine, Inc. (hereafter referred to as “IMM"), and were
passengers in a company van which was transporting
them from Galveston, Texas, to the IMM office in New
Iberia, Louisiana. Three of the employees, Shmuel Mezan,
Emile Bertrand, II] and William Emery, were members of
an anchor handling crew which had just completed a one
week job helping move a drilling barge from a location off
the coast of Louisiana to a point near Galveston. The
fourth employee, Paul Bertrand, had been dispatched to
Galveston in a company vehicle to bring the IMM créw
back to New Iberia.
Four separate suits were filed by Mezan and the per-
sonal representatives of the deceased employees against
IMM and its insurers in the United States District Court
5
for the Western District of Louisiana, seeking damages
under the Jones Act, 46 U.S.C. §688. After the various
suits had been consolidated, two of the defendant insurers,
American General Insurance Company and Arkwright-
Boston Manufacturers Mutual Insurance Company, moved
for summary judgment claiming that the plaintiffs were
not seamen as a matter of law, and IMM later filed a
separate motion on the same ground.
On June 19, 1981, the District Court granted the defen-
dant insurers’ motion for summary judgment, holding that
plaintiffs were not Jones Act seamen because they were
not permanently assigned to a specific vessel or group of
vessels. On the basis of this ruling, the court later granted
a similar motion by IMM. All plaintiffs appealed, and the
Fifth Circuit reversed and remanded the case for further
proceedings holding that reasonable persons could con-
clude that plaintiffs were Jones Act seamen. Rehearing
and rehearing en banc were denied on June 27, 1983.
IMM and two of its co-defendant insurers, American
General Insurance Company and Arkwright-Boston Manu-
facturers Mutual Insurance Company, are now petitioning
for a writ of certiorari to the Fifth Circuit to review its
ruling.
Facts
IMM is an oilfield service corporation which engages in
platform maintenance, fabrication, painting, sandblasting,
and anchoring and mooring of offshore drilling barges and
tender vessels. On April 14, 1979, the plaintiff, Shmuel
Mezan, and decedents, Emile Bertrand, III, and Wi!iam
Emery, were employed as anchor handlers by IMM. The
typical anchor handling crew consisted of a superinten-
dent, an operator, a welder and four riggers. The crew's
6
work was done from vessels which were provided by
IMM's customers; the anchor handling crew would work
aboard whatever vessel the customer has designated, These
vessels were generally offshore oil service vessels which had
been made available to lessees of offshore mineral interests
pursuant to long term contracts between the owners of the
respective vessels and the various lessees. The vessels
carried their own regular crew which consisted of a master,
cook, deckhands and mechanic - ~- an ordinary ship’s
complement. Anchor handling was but one of many tasks
which comprised the overal! mission of such a service
vessel,
The anchor handling crewmembers remained aboard the
work vessel for the duration of their work assignment,
which ranged from several hours to seven days, with the
average job lasting four to five days. The anchor handlers
were assigned to work on the vessels on a completely
random basis, were on each vessel for a limited time, and
were aboard each vessel for the limited purpose of per-
forming a single task - - that of lowering or raising an
anchor belonging, not to the vessel upon which they work-
ved, but to a movable drilling barge. At the time of this
accident, three of the plaintiffs were part of an anchoring
handling crew that had just completed a seven-day rig
relocation job for Tenneco on the Outer Continental Shelf
and were returning to the IMM office; the fourth plaintiff
was a standby rigger who had been sent with a company
van to bring the crew back. The Tenneco job had been
conducted from the AQUAMARINE 503, a service vessel
chartered by Tenneco.
Prior to this particular job aboard the 503, these crew-
members had worked aboard a number of similar vessels
also provided by IMM’s customers, Time sheet summaries
>
for one of the workers, Mezan, indicate that during the
eight months he was employed by IMM he worked aboard
22 different vessels, and was assigned to four vessels three
times each, eight vessels twice, and the remaining ten
vessels once. His work summaries also indicate that the
highest percentage of time ever spent on one vessel was
11.4%, while the average time spent with each vessel was
2.6%. Similarly, the work summary of another employee,
Emile Bertrand, spanning a one-year time period, shows
that he was assigned to 25 different vessels, working
aboard four vessels twice and all others once. The most
time he spent on any single vessel, expressed as a percent-
age of his total vessel time, was 13.5%; however, the
average time spent upon each vessel was only 3.4%. The
District Court treated the work histories of these two
workers as representative of all employees. From this
evidence, the court found it to be an “undisputed fact”
that, although the plaintiffs were regularly and continuous-
ly assigned to vessel related activity, “the work records do
not substantiate patterns of regular and continuous jobs
on any one vessel or specific fleet of vessels.” Instead,
whether or not a worker ever returned to work on a vessel
previously worked upon was completely fortuitous. Apart
from the anchor handling tasks performed by the workers,
the only duties performed on the vessels were those of
loading the vessel with their own special tools and house-
keeping in their work area. The anchor handling crew
performed no duties in the actual navigation of the work
vessels, and they did not even go aboard the drilling rigs
whose anchors they handled. Based upon the work sum-
maries referred to above, the likelihood that any of the
members of the anchor handling crew would have worked
aboard the 503 again is statistically very remote and, in
any event, would be totally fortuitous and geyond the
control of IMM.
8
ARGUMENT
The Jones Act provides a cause of action for “any
seaman who shall suffer personal injury in the course of
his employment.” 46 U.S.C. §688. The Longshoremen’s
and Harbor Workers’ Compensation Act, on the other
hand, restricts the benefits of the Jones Act to a master
or a member of a crew of any vessel. The issue raised by
this petition centers on whether the rule applied by the
Fifth Circuit for determining the status of the plaintiff
anchor handlers under the Jones Act improperly omitted
consideration of whether or not the anchor handlers’
duties aided in the navigation of the vessel upon which
they worked, contrary to the holding in South Chicago
Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940), and in
conflict with the Third Circuit decision of Simko v. C&C.
Marine Maintenance Co., 594 F.2d 960 (3d Cir. 1979),
cert, den, 444 U.S. 833 (1979).
The District Court granted summary judgment cn the
issue of Jones Act status in favor of defendants based upon
the finding that none of the plaintiffs had a more or less
*.ermanent connection with a particular vessel or with a
spc cific group of vessels. The District Court concluded
that to be a member of the crew of numerous vessels
would require that the group or fleet act together under
one control or gather closely together and form »« recog-
nizable unit. In support of this conclusion of law, the
Court referred to the following language in Guidry vy.
Continental Oil Co., 640 F.2d 523 (Sth Cir. 1981), in
which the Fifth Circuit made it clear that the relationship
between the individual and an identifiable vessel or group
of vessels must be substantial in point and time, not
spasmodic:
9
The key is that there must be a relationship
between the claimant and a specific vessel or
identifiable group of vessels.
Guidry’s deposition was quite explicit. His
assignment to any particular structure was
random. At no time was he assigned to work
on a particular rig on a continuing or regular
basis. See, e.g., Stokes v. B.T. Oilfield Ser-
vices, Inc., 617 F.2d 1205, 1207 (Sth Cir.
1980); Keener v. Transworld Drilling Co.,
468 F.2d 729, 732 (Sth Cir. 1972). Indeed,
of the forty different rigs Guidry was assigned
to during his career, 13 were non-vessel fixed
platforms, 7 were on land, and of the remain-
ing 20 movable rigs, he was on 13 only once
and never did he return to a specific rig more
than three times.
The Fifth Circuit overruled the District Court’s decision,
using what it referred to as the McKie test,) as modified
by the so~alled Robison test.2 The McKie test provides
as follows:
The essential and decisive elements of the
definition of a ‘“‘*member of a crew” are that
the ship be in navigation; that there be a more
or less permanent connection with the ship;
and that the worker be aboard primarily to
aid in navigation.4
1 MeKie v. Diamond Marine Co., 204 ¥ 2d 192 (5th Cir. 1953).
2 Offihore Co. v. Robison. 266 F.2d 769 (5th Cir, 1959).
3 McKie v. Diamond Marine Co. , supra, p. 136.
10
The Robison test as applied by the Fifth Circuit in
this case permits a factual finding of seaman status under
the Jones Act:
(1) if there is evidence that the injured work-
man was assigned permanently to a vessel...
or performed a substantial part of his work on
the vessel; and (2) if the capacity in which he
was employed or the duties which he per-
formed contributed to the function of the
vessel or to the accomplishment of its mis-
sion, or the operation or welfare of the vessel
in terms of its maintenance during its move-
ment or during anchorage for its future trips.4
With respect to this petition, the pertinent part of the
Fifth Circuit's holding appears in the following passage:
The two criteria of Robison are conjunctive.
E.g., Davis v. Hill Engineering, Inc. , 549 F.2d
314, 328 (Sth Cir. 1977). Plaintiffs satisfy
the second part because the performance of
the anchorhandlers’ duties clearly contributed
to the accomplishment of the vessel's mission,
the relocation of the drilling barge.®
In this respect, the test applied by the Fifth Circuit and
consequently the conclusion reached with respect to deter-
mining status under the Jones Act is contrary to the test
applied by the Supreme Court in Bassett, supra, and the
Third Circuit decision in Simkv, supra.
oe ee ee el ee
4 Bertrand v. International Mooring & Magine, Ine., 700 F.2d
240, 244 (5th Cir. 1983).
5 Id. p. 246.
In Bassett, an employee of South Chicago Coal & Dock
Company was drowned while serving his employer on a
vessel in navigable waters of the United States. The issue
was whether or not the de eased’s widow was entitled to
benefits under the Longsho.»men’s and Harbor Workers’
Compensation Act or whether she was excluded from the
benefit program because her decedent had been a member
of the crew of the vessel upon which he had worked. The
Court of Appeals described the worker’s chief task as that
of:
The
11
. .. facilitating the flow of coal from his boat
to the vessel being fueled - - removing obstruc-
tions to the flow with a stick. He performed
such additional tasks as throwing the ship's
rope and releasing or making the boat fast.
He performed no navigational duties. He
occasionally did some cleaning of the boat.
He did not work while the boat was enroute
from the dock to the vessel to be fueled.6
Court of Appeals also thought it significant that:
His only duty relating to navigation was the
incidental task of throwing the ship’s line;
that his primary duty was to free the coal if
it stuck in the hopper while being discharged
into the fuel of the vessel while both boats
were at rest; that he had no duties while the
boat was in motion. . .7
8 South Chicago Coal and Dock Co. v. Bassett, 309 U.S. 251, 255
(1940).
7 Id.
12
In affirming the judgment of the Court of Appeals, this
Court made the following comments concerning the
Longshoremen’s and Harbor Workers’ Compensation Act:
This Act, as we have seen, was to provide
compensation for a class of employees at
work on a vesse! in navigable waters who,
although they might be classed as seamen
(International Stevedoring Co. v. Haverty,
supra), were still regarded as distinct from
members of a ‘crew’. They were persons
serving on vessels, to be sure, but their service
was that of laborers, of the sort performed by
longshoremen and harbor workers and thus
distinguished from those employees on the
vessel who are naturally and primarily on-
board to aid in her navigation. . . These
duties, as tne Court of Appeals said, did
not pertain to navigation, aside from the
incidental task of throwing the ship’s rope
or making the boat fast, a service of the sort
which could readily be performed or aided by
a harbor worker. . .8
The factual parallels between Bassett, supra, and this
case are striking. In both cases plaintiffs were aboard
their respective vessels to perform a special mission un-
related to the navigational duties of the vessel from which
each worked. In both cases the vessel’s special mission was
that of helping another vessel to which the plaintiffs were
nut assigned. In both cases plaintiffs performed incidental
tasks of throwing the ship's line or cleaning the boat. In
8 Id., p. 260.
13
both cases plaintiffs had no duties while the vessel was
underway. In both cases plaintiffs would fall under the
provisions of the LHWCA if not found to be crewmem-
bers. In neither case were the plaintiffs “naturally and
primarily onboard to aid in navigation of the vessel upon
which they worked.”
The result in this case is different from the result in
Bassett, because the Fifth Circuit applied a different test
which conflicts with the Bassett test. In Bassett, the test
applied was whether or not the employee was on the vessel
naturally and primarily to aid in her navigation. In con-
trast, the test applied by the Fifth Circuit was whether or
not “the capacity in which the employees were employed,
or the duties which they performed contributed to the
function of the vessel or to the accomplishment of its
mission, or to the operation or welfare of the vessel in
terms of its maintenance during its movement or during
anchorage for its future trips.”
The Fifth Circuit test is substantially broader than the
test applied by this Court in Bassett and, therefore, neces-
sarily produces incompatible results in similar factual
situations - - thereby jeopardizing the desired goal of
uniformity of federal law.
Not surprisingly, the same disparity of tests and results
exist between the Fifth Circuit and the Third Circuit, as
evidenced by the opinion in Simko v. C&C Marine Co.,
594 F.2d 960 (3rd Cir. 1978), cert. den., 444 U.S. 833,
(1979). In Simko the plaintiff was hired by C&C Marine
Maintenance Company as a laborer. He was assigned the
job of assisting in the cleaning and minor repair of barges
brought to C&C’s facilities along the Ohio River by a
variety of barge companies. During the course of cleaning
one of the barges, Simko fell overboard and drowned.
Again, one of the issues was whether or not Simko’s
widow was entitled to benefits under the Longshoremen’s
and Harbor Worker’s Compensation Act or whether she
was entitled to bring a claim under the Jones Act. In find-
ing that the evidence presented at trial was insufficient to
permit the submission of the Jones Act claim to the jury
14
the Third Circuit said the following:
a>
This Court has previously held that among the
“decisive elements necessary of prooi in
determining who is ‘a member of a crew’
within the meaning of the Jones Act” isa
requirement “that the worker be aboard the
ship primarily to aid in navigation.” Griffith
v. Wheeling Pittsburg Steel Corp., 521 F.2d
31, 36 (3rd Cir. 1975), cert. den., 423 US.
1054, 96 S.Ct. 985, 46 L.Ed.2d 643 (1976).
The estate’s Jones Act claim was submitted to
the jury on the theory that Simko, at the time
of his death, was a member of the crew of
either ACBL number 2699 or C&C's crane
barge, to which number 2699 was moored.
However, the evidence introduced at trial
could not support a jury finding that Simko
was aboard either barge primarily to aid in its
navigation.
Testimony introduced at trial shows that
Simko was hired by C&C as a laborer and that
his function was to assist in the cleaning of
barges moored to C&C’s crane barge. He
shoveled debris from their interiors, squirted
the decks with waterhoses, and helped in
carrying pumps and other equipment used in
the cleaning operations .. . in Griffith this
x,
15
Court held that a worker injured while en-
gaged in loading a barge «at a steel mill along
the Ohio River had not been aboard that
barge primarily to aid in its navigation, and
thus we affirmed the District Court’s entry
of summary judgment against the plaintiff on
a Jones Act claim .. . the focus applied by
this Court in Griffith to the nature of the
duties performed by the putative Jones Act
claimant is consistent with the leading Su-
preme Court opinion in this area, Senko y.
LaCrosse Dredging Corp., 352 U.S. 370, 77
S.Ct. 415, 1 L.Ed.2d 404 (1957).9
The Third Circuit held that the proper test of seaman
status, which Simko had not met, was whether he per-
formed significant navigational functions with respect
to that vessel on which he worked.19
Again the similarities between the plaintiff in Simko and
the plaintiffs in this case are that they were both onboard
vessels to perform non-navigational tasks with respect to
the vessels on which they worked. The disparate results
reached by the respective circuits in Simko, supra, and in
this case, underscore the importance of petitioner’s appli-
cation for a writ. The Third Circuit applies a test, consis-
tent with Bassett, which emphasizes the traditional notion
that seamen have sometiiing to do with navigating vessels.
The Fifth Circuit has applied a test here which would
give such status to longshoremen or other persons who
are obviously harbor workers. The Fifth Circuit test
9 Simko, supra, pp. 964-965.
10 td. p. 965. .
16
distills to the simple proposition that a worker who spends
a large percentage of his time aboard vessels, even though
he has no particular affiliation with any single vessel or
identifiable group of vessels, whose work contributes to
the accomplishment of the function of those vessels, is a
seaman under the Jones Act. No doubt many longshore-
men spend as great a percentage of their time working
aboard vessels as did these anchor handlers, and there can
be no doubt that the operation of loading and unloading
cargo is essential to the function of the great majority of
commercial vessels operating in United States waters.
There is no way to distinguish between such workers and
Jones Act seamen if the test applied is the one used by the
Fifth Circuit in this instance.
As this court noted in Bassett, Congress obviously
intended to draw a line of demarcation between seamen
and workers subject to the jurisdiction of the Longshore-
men’s and Harbor Workers’ Compensation Act. The fact
that these plaintiffs were performing their activities on
the Outer Continental Shelf rather than in port or in a
harbor does not modify that Congressional intent. In
adopting the Outer Continental Shelf Lands Act, Congress
specifically provided that the LHWCA should apply to
injury or death of any employee resulting from opera-
tions conducted on the Outer Continental Shelf. The
Fifth Circuit’s decision disregards that intent and dis-
regards the admonition in Bassett that the proper distinc-
tion between seamen and harbor workers (or OCS work-
ers) be observed. By adopting the compensation regime
of the LHWCA in the Lands Act, Congress has made
generous provision for these plaintiffs, and it is neither
necessary nor desirable to extend and expand the defini-
tion of a seaman under the Jones Act to achieve any
worthwhile judicial objective.
17
CONCLUSION
This Court’s decision in Bassett, supra, establishes a
reasonable test for determining which maritime workers
are crew members of a vessel, entitled to bring an action
under the Jones Act, and which workers are covered under
the Longshoremen’s and Harbor Workers’ Compensation
Act. The decision has drawn a line of demarcation be-
tween the two statutes, making them complement rather
than conflict with each other, in accordance with Congres-
sional intent. This test is based upon whether the worker
is on board a vessel “naturally and primarily in aid of
navigation of that vessel.” The Fifth Circuit, on the
other hand, has adopted a much broader test for the Jones
Act which looks at whether the capacity in which the
worker was employed or the duties which he performed
contributed to the function of the vessel or to the accom-
plishment of its mission, or to the operation or welfare of
the vessel in terms of its maintenance during its movement
or during anchorage for its future trips. Consequently,
this case as recently decided by the Fifth Circuit is incom-
patible and irreconcilable with this Court’s decision in
Bassett as well as the Third Circuit’s decision in Simko,
supra. The logical result of the Fifth Circuit’s decision is
to make a Jones Act seaman of virtually any maritime
worker who is aboard a vessel for a significant amount of
his total work time, so long as his work is not unrelated to
the vessel’s function. This defies the intent of Congress
with respect to these two statutes and will only lead to
disharmony. For these reasons, petitioners urge this
Court to grant a writ of certiorari for the purpose of
18
conforming the disparate tests which have evolved in this
area of law.
Respectfully submitted,
Robert M. Contois, Jr.,
Counsel of Record
Edward R. Getz
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE
225 Baronne Street
New Orleans, Louisiana 70112
(504) 581-6641
Attorneys for Defendant-Petitioner,
Arkwright-Boston Manufacturers
Mutual Insurance Company
W. Gerald Gaudet
VOORHIES & LABBE’
718 South Buchanan Street
Lafayette, Louisiana 70502
(318) 232-9700
Attorneys for Defendant-Petitioner,
American General Insurance Company
Raymond Morgan Allen
Randall K. Theunissen
ALLEN, GOOCH, BOURGEOIS,
BREAUX & ROBISON
P.O. Drawer 3768
Lafayette, Louisiana 70502
(318) 233-5056
Attorneys for Defendant-Petitioner,
International Mooring & Marine, Inc.
19
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that I am a member of the bar
of this Court and that three copies of the foregoing Peti-
tion for Writ of Certiorari have been served by depositing
those copies in the United States mail, postage prepaid,
addressed to the following parties at the addresses indi-
cated:
Deborah M. Bertrand, through her counsel
of record, David Painter, Hunt, Godwin,
Painter & Roddy, Post Office Box 1743, Lake
Charles, Louisiana 70602;
Lisa A. Bertrand, through her counsel of
record, John S,. Hood, Hunt, Godwin, Painter
& Roddy, Post Office Box 1743, Lake
Charles, Louisiana 70602;
Marilyn Emery Smith and Lawrence Emery,
through their counsel of record, Richard S.
Vale, Blue, Williams & Buckley, 3501 North
Causeway Boulevard, Metairie, Louisiana
70002;
Shmuel Mezan, through his counsel of record,
Terry G. Breaux, Connery & Breaux, Post
Office Box 1026, Franklin, Louisiana 70538;
Fidelity & Casualty Company, through its
counsel of record, Alfred Smith Landry,
Landry, Watkins & Bonin, 211 East Main
Street, Post Office Box 850, New Iberia,
Louisiana 70560.
20
The foregoing services were made on behalf of Pctition-
ers, International Mooring & Marine, Inc., American
General Insurance Company, and Arkwright-Boston
Manufacturers Mutual Insurance Company, on Sep-
tember 26, 1983.
Se th
“i \ KE
ROBERT M. CONTOIS, JR.
A-l
APPENDIX A
Deborah M. BERTRAND, Etce., et al.,
Plaintiffs-Appellants,
Vv.
INTERNATIONAL MOORING & MARINE, INC., et al.,
Defendants-Appellees,
Vv.
FIDELITY & CASUALTY COMPANY,
Defendant-Appellant.
No. 81-3450,
United States Court of Appeals,
Fifth Circuit.
March 17, 1983.
Anchorhandlers, who were injured in one-vehicle accident
while returning from one-week oil rig relocation job, appeal-
ed from summary judgment granted by the United States
District Court for the Western District of Louisiana, John
M. Shaw, J., 517 F.Supp. 342, on defendants’ Motion in
plaintiffs’ Jones Act action. The Court of Appeals, Ingra-
ham, Circuit Judge, held that substantial issues of material
fact existed as to whether plaintiffs were seamen because
they performed substantial portion of their work on vessels
or by virtue of permanent attachment to vessels, precluding
summary judgment.
Reversed and remanded,
1, Federal Courts '*v §95
A-2
Denial of plaintiffs’ motion for summary judgment on
issue of seaman status in Jones Act suit was interlocutory
order and unappealable, and therefore only issue for review
was whether district court erred in granting summary judg-
ment for defendants. Jones Act, 46 U.S.C.A. §688.
2. Seamen key 29(1)
Workers Compensation key 262
Coverage under Jones Act and coverage under Longshore's
and Harbor Workers’ Compensation Act are mutually exclu-
sive. Jones Act, 46 U.S.C.A. 8688; Longshoremen’s and
Harbor Workers’ Compensation Act, §1 et seq., 33 U.S.C.A.
§901 et seq.
3. Federal Civil Procedure key 2470.2
Seamen key 29(5.16)
Although issue of seaman status is to be left to jury in
Jones Act action even when claim to such status is to be
relatively marginal one, summary judgment or directed
verdict by court is proper in cases in which underlying
facts are undisputed and record reveals no evidence from
which reasonable persons might draw conflicting inferences
about such facts. Jones Act, 46 U.S.C.A. § 688.
4. Seamen key 29(1)
For Jones Act purposes, one can be a member of crew of
numerous vessels which have common ownership or control.
Jones Act, 46 U.S.C.A. § 688.
5. Seamen key 29(1)
For Jones Act purposes, one can be member of crew of
numerous vessels even though employer neither owns nor
A-3
controls several vessels upon which seaman works. Jones
Act, 46 U.S.C.A. § 688.
6. Seamen key 29(1)
If anchorhandlers, who were injured in one-vehicle ac-
cident while returning from one-week oil rig relocation job,
satisfied Robinson test of seaman status, Jones Act coverage
would not be precluded by mere fact that employer had
chartered vessels used by anchorhandlers. Jones Act, 46
U.S.C.A. §688.
7. Seamen Key 29(1)
Had employer chosen to own rather than charter vessels
used by anchorhandlers, who were injured in one-vehicle
accident while returning from one-week oil rig relocation
job, Jones Act would cover anchorhandlers meeting Robison
criteria of seaman status. Jones Act, 46 U.S.C.A. §688.
8. Seamen key 29(1)
In light of Jones Act purposes, employers may not deny
Jones Act coverage to seamen by arrangements with third
parties regarding vessel's operation or by manner in which
work is assigned. Jones Act, 46 U.S.C.A. §688.
9. Seamen key 2
Although fact that claimant’s work places him on several
different vessels does not preclude seaman status for Jones
Act purposes, it is relevant in making such determination.
Jones Act, 46 U.S.C.A. 8688.
10. Seamen key 2
A4
Character and extent of worker's service aboard vessels,
whether it be one or several, affects resolution of seaman
status. Jones Act, 46 U.S.C.A. § 688.
11. Seamen key 2
Although increase in number of vessels or decrease in
period of service are not individually determinative of sea-
man status for Jones Act purposes, such factors should be
considered, to the extent that they reveal nature and location
of claimant’s work, when applying Robison criteria for
determining such status. Jones Act, 46 U.S.C.A. §688.
12. Seamen key 2 ,
Criteria of Robison for determining seaman status, i. e.,
whether injured workman was assigned permanently to
vessel or performed substantial part of work on vessel and
whether capacity in which he was employed or duties which
he performed contributed to function of vessel or to accom-
plishment of its mission or to operation or welfare of vessel
in terms of maintenance during movement or during anchor-
age for future trips, are conjunctive. Jones Act, 46 U.S.C.A.
§ 688.
13. Seamen key 2
Under Robison test of seaman status for Jones Act pur-
poses, worker may satisfy requisite vessel relationship by
demonstrating performance of substantial part of work
aboard vessel or permanent assignment to vessel. Jones
Act, 46 U.S.C.A. §688.
14. Seamen key 2
Although, under substantial work prong of Robison test
A-5
of seaman status for Jones Act purposes, percentage evidenc-
ing vessel-related work is important in determining seaman
status, it is not conclusive. Jones Act, 46 U.S.C.A. $688.
15. Seamen key 2
In determining whether substantial work prong of Robi-
son test of seaman status for Jones Act purposes had been
satisfied, Court of Appeals had to consider all circumstances
of claimants’ employment to determine relation of vessel-
related activities to claimants’ total responsibilities. Jones
Act, 46 U.S.C.A. $688.
16. Federal Civil Procedure key 2512
In anchorhandlers’ Jones Act action seeking recovery for
injuries suffered in one-vehicle accident while returning
from one-week oil rig relocation job, genuine issues of
material fact existed as to whether anchorhandlers were
seamen because they performed substantial portion of
their work on vessels or by virtue of permanent attach-
ment to vessels, precluding summary judgment. Jones Act
46 U.S.C.A. § 688.
17. Seamen key 2
In determining whether anchorhandlers, who were in-
jured in one-vehicle accident while returning from one-
week oil rig relocation job, satisfied permanent assignment
prong of Robison test of seaman status for Jones Act pur-
poses, Court of Appeals would review facts in light of factors
evincing a vessel relationship that was substantial in point and
time and not merely spasmodic. Jones Act, 46 U.S.C.A.
§ 688.
18. Seamen key 2
A-O
No particular factor is determinative of seaman status
for Jones Act purposes, but, rather, each is indicative. Jones
Act, 46 U.S.C.A. 8688.
Appeals from the United States District Court for the
Western District of Louisiana.
Before INGRAHAM, REAVLEY and POLITZ, Circuit
Judges.
INGRAHAM, Circuit Judge.
The issue of which marine workers qualify as Jones Act
seamen again surfaces before this court. Plaintiffs, who were
members of an anchorhandling crew for International Moor-
ing and Marine, Inc. (IMM), sued under the Jones Act to
recover for injuries suffered in a one-vehicle accident while
returning from a one-week relocation job. Both sides moved
for summary judgment on the issue of seaman status. The
district court denied plaintiffs’ motion and ¢ granted de-
fendants’ motion. Bertrand vy, International Mooring and
Marine, Inc., 517 F.Supp. 342, 348 (W.D.La.1981). Plain-
tiffs have appealed the judgment and contend that summary
judgment was erroneous because the evidence supported
summary judgment for plaintiffs or created a fact issue for
jury determination. Concluding that the district court relied
on a mistaken formulation of the legal principles governing
the status determination, we reverse the judgment and re-
mand the case for further proceedings consistent with this
opinion.
On April 7, 1979, IMM dispatched an anchoring and
mooring crew, which included Robert Clark as supervisor,
Emile Bertrand, III, as winch operator, and Shmuel Mezan
A-7
and William Emery as riggers.) For this particular mission.
the anchorhandling crew worked on the Aquamarine 503
and relocated Tenneco’s drilling mg, the Marlin 7, from
a point near Intercoastal City, Louisiana, to a point off the
coast of Galveston, Texas. The Aquamarine 5032 was
chartered by Tenneco for IMM’s use and was specially
outfitted for lifting the heavy anchors from the ocean floor.
It had sufficient deck space to stow the anchors until the
rig reached its new location and the anchors reset. The
IMM crew ate and slept aboard the vessel for the duration
of the mission, which lasted seven days.2 In addition to
performing their anchorhandling duties, the IMM crew
assisted in readying the vessel for its mission. Upon com-
pleting the Marlin 7 relocation, the IMM crew was met
in Galveston by Paul Bertrand, who had been dispatched
in the company van to pick up the crew. Paul Bertrand had
been a standby rigger for this mission and thus had remained
on call at the IMM headquarters in New Iberia, Louisiana.
On the return trip the van was involved in a one-vehicle
accident that killed Emile Bertrand, III, Paul Bertrand, and
William Emery and injured Shmuel Mezan.
[1] The Jones Act suits# of Mezan and decedents’ repre-
1 Three other members of the IMM anchorhandling crew were
not before the district court.
2 The vessel was accompanied by a complement crew of a master,
cook, mechanic, and deckhands.
3 The work summaries indicate that the missions performed by
the IMM crews, which included securing anchors loosened by bad
weather and relocating drilling rigs, lasted from several hours to nine-
teen days, with the average job lasting four to five days.
4 The Jones Act, 46 U.S.C. 8688, states:
Any seaman who shall suffer personal injury in the course of
A-8
sentatives were consolidated in the district court. Plaintiffs
and defendants moved for summary judgment on the issue
of seaman status. For purposes of the summary judgment
motions, neither defendants nor the district court distin-
guished the status of Paul Bertrand from the other crew
members." The district court denied plaintiffs’ motion,
granted defendants’ motion, and stated that while “this
anchorhandling crew was continuously subjected to the
perils of the sea like blue water seamen and was engaged in
classical seaman’s work, the Court finds as a matter of
law that there is no reasonable evidentiary basis to support
a jury finding that the injured party and the decedents in-
volved herein were permanently assigned to any specific
vessel or group of vessels and therefore, they were not
seamen under the Jones Act.’ /d. at 348. Plaintiffs now
appeal the judgment and assert that the decision was erron-
4 Continued
his employment may, at his election, maintain an action for
damages at law, with the right of trial by jury, and in such action
all statutes of the United States modifying or extending the
common-law right or remedy in cases of personal injury to
railway employees shall apply; and in case of the death of any
seaman as a result of any such personal injury the personal
representative of such seaman may maintain an action for dam-
ages at law with the right of trial by jury, and in such action all
statutes of the United States conferring or regulating the right
of action for death in the case of railway employees shall be
applicable. Jurisdiction in such actions shall be under the court
of the district in which the defendant employer resides or in
which his principal office is located.
5 “[C]nceit is established that the claimant is a seaman, the Jones
Act permits recovery even if he sues for injuries received while off
ship and engaged in temporary work for his employer unrelated to
service of the ship.” Higginbotiiam v. Mobil Oil Corp., 545 F.2d 422,
432 (5th Cir. 1977), reversed on other grounds, 43 U.S. 618, 98
S.Ct. 2010, 56 L.Ed.2d 581 (1978).
A-9
eous because summary judgment was appropriate for plain-
tiffs or that the issue should have gone to the jury.6
{2] Our analysis of the issue of seaman’s status necessari-
ly begins by articulating the standards that resolve which
marine workers are “seamen” or “‘members of a crew,’”?
since coverage under the Jones Act and the Longshoremen’s
and Harbor Workers’ Compensation Act are mutually exclu-
sive. E.g., McDermott, Inc. vy. Boudreaux, 679 F.2d 452,
459 n. 7 (Sth Cir. 1982); Ardoin vy. J. Ray McDermott &
Co., 641 F.2d 277, 280 (Sth Cir. 1981). In Ardoin, we
noted that the McKie test8 “‘still articulates the basic com-
6 Since the denial of plaintiffs’ motion for summary judgment
is an interlocutory order and is unappealable, #luor Ocean Services,
Inc. v. Hampton, 502 F.2d 1169 (5th Cir. 1974), the only issue for
our review is whether the district court erred in granting summary
judgment for defendants. See Ardoin v. J. Ray McDermott & Co.,
641 F.2d 277, 278-79 (5th Cir. 1981).
7 The term “seaman” is contained in the original Jones Act en-
acted in 1920. In 1927 Congress enacted the Lonshoremen’s and
Harborworkers’ Compensation Act, 33 U.S.C. §901 et seq., which
extended to all maritime workers except masters or “members of
a crew of [a] vessel.” The Supreme Court held that the effect of the
Act was to restrict the benefits of the Jones Act to “members of
a crew of [a] vessel.’”’ Swanson v. Marra Bros., Inc., 328 U.S. 1, 66
S.Ct. 869, 90 L.éd. 1045 (1946). The terms “‘seaman” and “member
of a crew” are now used interchangeably.
See Abshire v. Seacoast Products, Inc., 668 F.2d 832, 834 n. 1 (5th
Cir. 1982); Longmire v. Sea Drilling Corp. 610 F.2d 1342, 1345 (5th
Cir. 1980).
8 “The essential and decisive elements of the definition of a ‘mem-
ber of a crew’ are that the ship be in navigation; that there be a more
or less permanent connection with the ship; and that the worker be
aboard primarily to aid in navigation.” McKie v. Diamond Marine
Co., 204 F.2d 132, 136 (5th Cir. 1953).
A-10
pass of the term ‘seaman’ as used in the Jones Act.” /d.
We further noted that “the entry of summary judgment for
the defendant in a Jones Act case on the ground that the
plaintiff lacked seaman’s status was improper and that
there was an evidentiary basis to submit that question to
the jury ‘(1) if there is evidence that the injured workman
was assigned permanently to a vessel .. . or performed a
substantial part of his work on the vessel; and (2) if the
capacity in which he was employed or the duties which he
performed contributed to the function of the vessel or to
the accomplishment of its mission, or to the operation or
welfare of the vessel in terms of its maintenance during its
movement or during anchorage for its future trips.’ ~ /d.
at 280-81 (citing Offshore Co. v. Robison, 266 F.2d 769,
779 (Sth Cir. 1959) (the Robison test)). As we recently
stated, however, “‘our subsequent decisions make it clear
that the Robison test, with its broad concept of seaman’s
status, is to be used not only in deciding whether a case
goes to the jury in a Jones Act dispute, but also in delimiting
the power of the factfinder to deny or confer such status.”
McDermott, 679 F.2d at 457. Consequently, we analyze
this case under the test laid down in Robison.9
9 We never abandoned the McKie test, but continue to quote it or
a modified version, which encompasses the second part of the Robison
test. primarily to address cases in which the issue is whether the vessel
is in navigation. See, e.g., Barrios v. Engine & Gas Compressor Services,
Inc., 669 F.2d 350, 352 (5th Cir. 1982) (modified version); Watkins v.
Pentzien, Inc., 660 F.2d 604, 606 (5th Cir. 1981), cert. denied,
US. ___, 102 S.Ct. 2010, 72 L.Ed.2d 467 (1982) (modified version);
Garcia v. Queen, Ltd., 487 F.2d 625, 628 n. 6 (5th Cir. 1973); Williams
v. Avondale Shipyards,Inc., 452 F.2d 955, 958 (5th Cir. 1971); Bodden
v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 274 (5th
Cir. 1966).
A-11
{3] Turning to the appropriateness of summary judg-
ment on the issue of seaman status, we note that it has been
described as a mixed question of law and fact, Holland vy.
Allied Structural Steel Co., 539 F.2d 476, 483 (Sth Cir.
1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1136, 51 L.Ed.
2d 557 (1977); Keener v. Transworld Drilling Co.. 468 F.2d
729, 730 (Sth Cir. 1972), and as “tone whose resolution
requires ‘the application of legal principles to specific under-
lying facts, ” Ardoin, 641 F.2d at 280 (quoting Longmire
v. Sea Drilling Corp., 610 F.2d 1342, 1345 (Sth Cir. 1980)),
and thus normally a question for the jury. Barrios v. Engine
& Gas Compressor Services, Inc., 669 F.2d 350, 352 (Sth
Cir. 1982); Watkins v. Pentzien, 660 F.2d 604, 606 (Sth
Cir. 1981), cert. denied, US. , 102 S.Ct. 2010,
72 L.Ed.2d 467 (1982): Robison, 266 F.2d at 779-80.
While “the issue is to be left to the jury even when a claim
to seaman status is to be a relatively marginal one,” Barrios
vy. Louisiana Construction Materials Co., 465 F.2d 1157,
1162 (Sth Cir. 1972), summary judgment or a directed
verdict by the court is proper in cases where the underlying
facts are undisputed and the record reveals no evidence
from which reasonable persons might draw conflicting
inferences about these facts. Abshire v. Seacoast Products,
Inc., 668 F.2d 832, 835 (Sth Cir. 1982); Ardoin, 641 F.2d
at 280; Guidry v. South Louisiana Contractors, Inc., 614
F.2d 447, 454 (Sth Cir. 1980); Landry v. Amoco Production
Co., 595 F.2d 1070, 1072 (Sth Cir. 1979); Robison, 266
F.2d at 779-80. Since the underlying facts are undisputed
in the present case, we review them to determine whether
reasonable persons might draw conflicting inferences.
[4.5] In resolving the claim to seaman status. the district
court concluded that ‘‘one cannot be a member of a crew of
numerous vessels which have no common ownership or
control.” Bertrand, 517 F.Supp. at 347. Although one can
if
,
fil
vy
A-12
be a member of a crew of numerous vessels which have
common ownership or control, «eg. Braniff v. Jackson
Avenue-Gretna Ferry, Inc., 280 F.2d §23 (Sth Cri. 1960),
the obverse statement, i.c., the district court's conclusion
of law, is neither dictated nor supported by case law. We
have never held that a seaman is barred from coverage un-
der the Jones Act if the employer neither owns nor controls
the several vessels upon which the seaman works. Instead,
we have specifically held that in the context of the single
vessel, the employer need not be the owner or operator of
the vessel for Jones Act liability to attach. F.g., Roberts y
Williams-Mc Williams Co., 648 F.2d 255, 262 (Sth Cir. 1981);
Guidry v. South Louisiana Contractors, Inc., 614 F.2d at
454: Barrios vy. Louisiana Construction Materials Co., 465
F.2d at 1164-65. To require common ownership or control
when seamen work on several vessels but not when they
work on a single vessel is inconsistent with the liberal con-
struction of the Jones Act that has characterized it from
the beginning ard is inconsistent with its purposes. Accord
Robison, 266 F.2d at 780.
[6-8] In Braniff, we first examined whether to distin-
guish between seamen that work on a single vessel and
those that work on several vessels. We stated that while
“(t]he usual thing [was] for a person to have a Jones Act
seaman status in relation to a particular vessel, . . . there
is nothing about this expanding concept to limit it me-
chanically to a single ship.”’ Braniff, 280 F.2d at 528. Since
Braniff, the group of vessels concept has been used to ex-
pand coverage under the Jones Act, not restrict it.19 “A)-
though this anchor-handling crew was continuously sub-
10 In Braniff, the claimant was responsible for maintaining not
just one, but every ferry owned by his employer. We have allowed
recovery under the Jones Act when the claimants were not responsible
A-13
jected to the perils of the sea like blue water seamen and
was engaged in classical seaman’s work, “Bertrand, 517 F.
Supp. at 348, appellees contend that Jones Act coverage
should be withheld because the vessels were not under the
employer's commen ownership or control. We note, how-
ever, that whether the different vessels were under common
ownership or control was determined by the employer,
not the nature of the claimants’ work. In the present case,
IMM chose to borrow the Aquamarine 503 from Tenneco.
the customer whose drilling rig was being relocated. The
ve.sel was then specifically outfitted for the mission and the
customer was billed only for the services of the anchor-
handling crew. On occasion, however, IMM chartered vessels
directly for their own use and billed the customer for the
chartered vessel as well as for the services of the anchor-
handling crew. /d, at 344 (undisputed fact IX). Thus, if
the anchorhandlers satisfied the Robison test, Jones Act
10 Continued
for each and every vessel, but worked on several vessels owned by
their employers. See Abshire v. Seacoast Products, Inc., 668 F.2d 832
(5th Cir, 1982); Higginbotham v. Mobil Oil Corp., 545 F.2d 422
(5th Cir, 1977), reversed on other grounds, 436 U.S. 618, 98 S.Ct.
2010, 56 L.Ed.2d 581 (1978); Magnolia Towing Co. v. Pace, 378
F.2d 12 (5th Cir. 1967). Further, the fact that the employers charter-
ed, rather than owned the vessels upon which the employees worked
has not affected claimants’ seamen status. See Ardoin v. J. Ray Mc
Dermott & Co., 641 F.2d 277 (5th Cir. 1981); Bazile v. Bisso Marine
Co., 606 F.2d 101 (5th Cir. 1979). Finally, recovery has been allowed
when employees work aboard vessels that are neither owned nor
operated by their employers. See Taylor v. Packer Diving & Salvage
Co., 342 F.Supp. 365 (E.D.La. 1971), aff'd, 457 F.2d 512 (5th Cir.
1972); Williams v. Milwhite Sales Co., 197 F.Supp. 730 (E.D.La. 1961),
approved in Barrios v, Louisiana Construction & Materials Co., 465 F.
2d 1157, 1165-66 (5th Cir. 1972).
A-14
coverage would not be precluded by the mere fact that
IMM had chartered the vessels used by the anchorhandlers.
See Taylor vy. Packer Diving & Salvage Co., 342 F.Supp. 365
(E.D.La. 1971), aff'd, 457 F.2d $12 (1972). Moreover,
had IMM chosen to own rather than charter the vessels, the
Jones Act clearly would cover workers meeting the Robison
criteria. Braniff, 280 F.2d at 528. In light of the purpose of
the Jones Act, we will not allow 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. See Williams vy. Milwhite Sales Co., 197
F.Suop. 730 (E.D.La. 1961), cited with approval in Barrios
v. Louisiana Construction & Materials Co., 465 F.2d 1157
(Sth Cir. 1972).
[9-11] While the fact that a claimant's work places him on
several different vessels does not preclude seaman status, it
is relevant in making that determination. As we stated in
Longmire, “[t]he issue of an injured worker's status as a
seaman should be addressed with reference to the nature and
location of his occupation taken as a whole.” Longmire,
610 F.2d at 1347. Consequently, the character and extent
of a worker's service aboard vessels, whether it be one or
several, affects the resolution of seaman status. We have
repeatedly emphasized that “the relationship creating seaman
status must be substantial in point of time and work, not
merely sporadic.” Dove vy. Belcher Oil Co., 686 F.2d 329,
333 (Sth Cir. 1982). See, eg. Barrios vy. Engine & Gas
Compressor Services, Inc., 669 F.2d at 353; Roberts 648
F.2d at 261; Guidry v. Continental Oil Co., 640 F.2d 523,
529 (Sth Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 96,
70 L.Ed.2d 87 (1981); Rotolo v. Halliburton Co., 317
F.2d 9, 13 (Sth Cir.), cert, denied, 375 U.S. 852, 84 S.Ct.
111, 11 L.bd.2d 79 (1963); Braniff, 280 F.2d at 528. As the
number of vessels increases or the period of service decreases,
the claimant's relationship with the vessels tends to become
A-15
more tenuous and transitory. See Aparicio v. Swan Lake,
643 F.2d 1109 (Sth Cir. 1981); Fazio » Lykes Bros, Steam-
ship Co,, 567 F.2d 301 (Sth Cir, 1981). Individually, these
factors are not determinative, ¢g.. Brown v. ITT Rayonier,
Inc., 497 F.2d 234, 237-38 (Sth Cir. 1974) (temporary
relationship insufficient to deny status); Braniff, 280 F.2d
at 528 (status allowed although assigned to several ves-
sels); however, to the extent that they reveal the nature
and location of a claimant's work, they should be considered
when applying the Robison criteria. Accordingly, we turn
to the facts to decide whether reasonable persons could
find that plaintiffs qualified as seamen under the Robison
test.
{12,13] The two criteria of Robison are conjunctive.
E.g., Davis v. Hill Engineering, Inc., 549 F.2d 314, 328
(Sth Cir. 1977). Plaintiffs satisfy the second part because
the performance of the anchorhandlers’ duties clearly contri-
buted to the accomplishment of the vessel's mission, the
relocation of the drilling barge. Thus, we turn to the first
criterion, which concerns the issue of the injured workers’
connection with a vessel, and note that “it offers alternative
grounds for meeting the standard.” /d. at 326. Although
this aspect of the test addresses the threshold inquiry of
whether the claimant has had sufficient contact with water-
borne or vessel-related activities, Landry, 595 F.2d at 1072,
we have sometimes emphasized the permanency aspect to
the apparent exclusion of the substantial work prong of the
standard. See, eg, Guidry vy. Continental Oil Co., 640
F.2d at 529 & n. 19.1! Nevertheless, the worker may satis-
11 Although the analysis in some cases focuses upon the claimant's
failure to meet a particular prong, usually the permanency prong, the
the cases reveal that neither allernative was satisfied. For
example, the tiff in Guidry, a casing pusher on a drilling barge.
4
A-16
fy the requisite vessel relationship by demonstrating the
performance of a substantial part of his work aboard a
vessel, ¢«.g., Landry, 595 F.2d 1070, or a permanent assign-
ment to a vessel. E.g., Ardoin, 641 F.2d 277.
[14-16] For a claimant to satisfy the substanual work
prong of Rubison, “it must be shown that he performed a
significant part of his work aboard the vessel with at least
some degree of regularity and continuity.” Barrios v. Engine
& Gas Compressor Services, Inc., 669 F.2d at 353; Holland,
$39 F.2d at 484; Keener, 486 F.2d at 732. The undisputed
facts reveal that the anchorhandling crew worked on twenty-
five vessels and that approximately ninety per cent of the
work was performed aboard the vessels. Bertrand, 517
F.Supp. at 344 (undisputed fact XI). Compare Abshire,
668 F.2d at 835 (90-95% work on 21 vessels - seaman)
and Landry, 595 F.2d at 1073 (70% work vessel-related-
seaman) with Guidry v. Continental Oil Co., 640 F.2d at
529 (half of assignments on 20 vessels with work consti-
tuting 20-25% of time on vessels—not seaman) and Keener,
468 F.2d at 731 (20—25% of work on one vessel—not sea-
man). Although percentages evidencing vessel-related work
is important in determining seaman status, it is not conclu-
sive. As we noted in Keener, “{j]ust as there can be no
precise delineation of that quantum of duties which, when
performed on board a vessel, will make the employee a
seaman, similarly there is no brightline test to be applied
11 Continued
admitted in deposition that he had no permanent assignment to any
particular drilling vessel or group of vessels. While we focused on the
lack of a permanent attachment, the nature of his work placed him on
vessels for only half of his assignments and required him to work
only about twenty per cent of his time on those vessels. Consequent-
ly, this minimal vessel-related work evidences the failure of the sub-
stantial work alternative.
A-17
in determining the degree of frequency and regulanty of
performance which must be shown in order to claim the
status.” Keener. 468 F.2d at 731-32. Consequently. we
must consider all the circumstances of claimants’ employ-
ment to determine the relation of the vessel-related ac-
tivities to the claimants’ total responsibilities. 12 Longmire,
610 F.2d at 1347 n. 6. In the present case, the anchor-
handling crew was regularly and continuously assigned to
vessel-related activity.13 Bertrand, 517 F.Supp. at 345
(undisputed fact XII). The remaining time not spent on the
vessels, ten per cent, was spent “preparing equipment for
[the] offshore vessel assignments.” /d. at 344 (undisputed
fact XI). Thus, plaintiffs’ entire employment involved pre-
paring to work or working from a vessel. Compare with
Guidry v. Continental Oil Co., 640 F.2d at 539 (half of cas-
ing pusher’s assignments were upon nonvessels) and Fazio,
567 F.2d at 303 (some days shoregang performed no vessel-
related work) and Dugas vy. Pelican Construction Co., 481
F.2d 773, 777 (Sth Cir.), cert. denied, 414 U.S. 1093, 94
S.Ct. 724, 38 L.Ed.2d 550 (1973) (roustabout’s duties
included cutting grass, repairing a bridge, and land-based
office work). We conclude that in light of the group of vessels
concept discussed above, reasonable persons could find that
plaintiffs were seamen because they performed a substantial
portion of their work on vessels.
[17,18] Moreover, reasonable persons could have con-
12 We have often discussed this aspect in terms of whether the
vessel-related work was performed with any degree of regularity or
continuity. E.g., Barrios v. Engine & Gas Compressor Services, Inc.,
669 F.2d 350, 353 (5th Cir. 1982).
13. As in Abshire, the claimant’s employer kept careful records
showing to which vessel he was attached while he was performing his
duties. See Abshire v. Seacoast Products, Inc., 668 F.2d 832, 836 (5th
Cir. 1982).
A-18
cluded that plaintiffs satisfied the permanent assignment
prong of Robison's first criterion. As we stated in Ardoin,
“(t)he ‘permanency’ requirement id, we think best under-
stood as indicating that in order to be deeined a ‘seaman’
within the meaning of the Jones Act ‘a claimant [must]
have more than a transitory connection’ with a vessel or a
specific group of vessels.’ Ardoin, 641 F.2d at 281 (quoting
Davis, 549 F.2d at 326). See Mungia vy. Chevron Co., 675
F.2d 630, 632 (Sth Cir. 1982). This prong is “meant to deny
seaman’s status to those who come aboard a vessel for an
isolated piece of work, not to deprive a person whose duties
are truly navigational of Jones Act rights merely because
he serves aboard a vessel for a relatively short period of
time.”14 Porche v. Gulf Mississippi Marine Corp.. 390 F.
Supp. 624, 631 (E.D.La. 1975). Accordingly, we review
the facts in light of factors evincing a vessel relationship
that is substantial in point and time and not merely spas-
modic. See Dove, 686 F.2d at 333; Guidry vy. Continental
Oil Co., 640 F.2d at 529; Braniff, 280 F.2d at 528. With
respect to their service upon the vessel, we initially note
that the crew actually went to sea and ate and slept aboard
the vessels.15 Compare Davis, 549 F.2d 314 with Stokes y.
14 “In short, we think that something other than the mere fact
of a temporary relationship is involved in most cases which profess
to deny seaman’s status because of an absence of a permanent con-
nection with the vessel.” Brown v. ITT Rayonier, Inc., 497 F.2d
234, 238 (5th Cir. 1974).
15 We reiterate that no particular factor is determinative of sea-
man status, e.g, Keener v. Transworld Drilling Co., 468 F.2d 729,
731 (5th Cir. 1972) (“Stevedores and offshore roughnecks who do no
more than sleep and eat aboard a tender fall into the [ transitory, rather
than permanently attached] category.”); Stokes v. B. T. Oilfield
Services, Inc., 617 F.2d 1205, 1206 (5th Cir. 1980) (claimant went to
sea, but was denied seaman status), each is indicative. See Davis v. Hill
Engineering, Inc., 549 F.2d 314, 327-28 (5th Cir. 1977) (citing cases in
which status was denied and the worker neither lived, ate nor slept on
a vessel).
A-19
B. T. Oilfield Services, Inc., 617 F.2d 1205, 1207 (Sth Cir.
1980) and Fazio, 567 F.2d at 303. We further note that
plaintiffs’ tour of duty with a vessel was for the duration of
the vessel’s mission. Like the situation in Roberts, the mis-
sion of the vessel and the plaintiff's job were coextensive,
when plaintiffs finished their responsibilities, the vessel's
mission was completed. See Roberts, 648 F.2d at 262;
Ardoin, 641 F.2d at 281-82. This should be contrasted with
the situation in which the marine worker performs a partic-
ular specialized job that contributes toward the vessel's
larger mission.1® #£.g.. Guidry ». Continental Oil Co., 640
F.2d 523 (oil worker pushing casing for well); Dugas, 48]
F.2d 773 (roustabout unloaded a specific number of pipe
joints from a barge); Rotolo, 317 F.2d 9 (welder performed
a single repair on a single boat). Consequently, plaintiffs’
claim to seaman status is strengthened by the presence of
these factors, the lack of which has proven to be “fatal
stumbling blocks [to] land-based workers providing shore
services to docked vessels."’ Davis, 549 F.2d at 327.
Further support for plaintiffs’ claim to seaman status
appears in the nature of their work. First, like the welder’s
work in Ardoin, ‘‘the nature of [claimant's] work was such
that he never worked except in conjunction with one of
these [vessels]. Ardoin, 641 F.2d at 282. Compare Abshire,
668 F.2d at 836 (claimant “spent his entire working time
aboard ships except for those rare occasions where he was
rigging or making preparation for work to be performed
aboard vessels’’) with Fazio, 567 F.2d at 303 (on some
days, shore crew’s duties were confined solely to shore).
16 = This is not to imply that a marine worker cannot demonstrate
seaman status in the latter situation, but only that his case is more
persuasive when his duties continue throughout the vessel’s voyage.
A-20
Second, the anchorhandlers’ work from the vessels was
their primary duty and not merely incidental to work on
shore or a nonvessel. Compare with Barrios vy. Engine &
Gas Compressor Services, Inc., 669 F.2d at 353 (work
aboard vessel was no more than transitory or incidental
to employment aboard the platform) and Longmire, 610
F.2d at 1346 (‘‘because of the symbiotic relationship be-
tween the tender and the drilling platform, [claimant's]
performance of [his primary duty concerning drilling op-
erations on the platform] necessarily carried him on to the
tender from time to time’). Third, the IMM crew aided in
readying the vessel for its mission. Compare Davis, 549
F.2d at 328 (claimant assisted in welding cracks on vessel,
worked with the crew in washing the deck, and helped load
and unload the barge alongside the crew) with Guidrv y.
Continental Oil Co., 640 F.2d at 526 n. 8 (other than his
specific job duties, claimant engaged in no activities which
contributed to the rig’s mission). Each of these factors
provide further evidence that a reasonable person could
conclude that plaintiffs were seamen by virtue of a per-
manent attachment to the vessels.
In conclusion, the district court’s view of the group of
vessels concept was too restrictive. If plaintiffs demonstrate
the presence of the Robison criteria, employers cannot
prevent seamen from recovering under the Jones Act by
assigning them to different vessels or by making arrangements
with third parties concerning the operation or navigation
of the vessels upon which they serve. Since our review of
the undisputed facts in light of Robison and the group of
vessels concept discussed above reveals that reasonable
persons could conclude that plaintiffs were Jones Act sea-
men, the granting of summary judgment for defendants
was inappropriate. Plaintiffs are entitled to a trial on the
merits to establish their seaman status.
-_
A-21
Accordingly, the judgment of the district court is RE-
VERSED and the case is REMANDED for further pro-
ceedings.
REVERSED and REMANDED.
A-22
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-3450
DEBORAH M. BERTRAND, ETC., ET AL.,
Plaintiffs-Appellants,
versus
INTERNATIONAL MOORING & MARINE, INC.,
ET AL..,
Defendants-Appellees,
versus
FIDELITY & CASUALTY COMPANY,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Louisiana
ON SUGGESTION FOR REHEARING EN BANC
(Opinion 3/17/83, 5 Cir., 198 __, ype
Filed June 27, 1983
Before INGRAHAM, REAVLEY and POLITZ, Circuit
Judges.
PER CURIAM:
(x) Treating the suggestion for rehearing en banc as a
petition for panel rehearing, it is ordered that the petition
A-23
for panel rehearing is DENIED. No member of the panel
nor Judge in regular active service of this Court having
requested that the Court be polled on rehearing en banc
(Rule 35, Federal Rules of Appellate Procedure; Local
Fifth Circuit Rule 16), the suggestion for Rehearing En
Banc is DENIED.
( ) Treating the suggestion for rehearing en banc as a
petition for panel rehearing, the petition for panel rehearing
is DPF NIED. The judges in regular active service of this Court
having been polled at the request of one of said judges and
a majority of said judges not having voted in favor of it
(Rule 35, Federal Rules of Appellate Procedure; Local Fifth
Circuit Rule 16), the suggestion for Rehearing En Banc is
DENIED.
ENTERED FOR THE COURT:
/s/ Thomas M. Reavley
United States Circuit Judge
CLERK’S NOTE:
SEE RULE 41 FRAP AND LOCAL RULE 17 FOR STAY
OF THE MANDATE
A-24
APPENDIX C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
CIVIL ACTION NUMBER 800569
SECTION S
DEBORAH M. BERTRAND, ET AL
VS.
INTERNATIONAL MOORING & MARINE, INC.
CIVIL ACTION NUMBER 800570
SECTION S
LISA A. BERTRAND, ET AL
VS.
INTERNATIONAL MOORING & MARINE, INC.
CIVIL ACTION NUMBER 810051
SECTION S
MARILYN EMERY SMITH, ET AL
VS.
INTERNATIONAL MOORING & MARINE, INC.
CIVIL ACTION NUMBER 810079
SECTION S
SHMUEL MEZAN
VS.
INTERNATIONAL MOORING & MARINE, INC.
A-25
JUDGMENT
Filed June 19, 1981]
Pursuant to the ruling on the Motions for Summary
Judgment this date entered and the Court finding as a matter
of law that there is no reasonable evidentiary basis to support
a jury finding that the injured party and the decedents herein
were permanently assigned to any specific vessel or group of
vessels,
It is ORDERED, ADJUDGED AND DECREED that the
Motions for Summary Judgment filed herein by all plaintiffs
on the issue of seaman status are hereby DENIED.
It is further ORDERED, ADJUDGED AND DECREED
that the Motions for Summary Judgment filed herein by
defendants, American General Insurance Company and
Arkwright Boston Manufacturers Mutual Insurance Com-
pany, are hereby GRANTED.
This Court has further determined that there is no just
reason for delay and that this Judgment in favor of de-
fendants, American General Insurance Company and Ark-
wright Boston Manufacturers Mutual Insurance Company,
should be designated as a final judgment of this Court, pur-
suant to Rule 54(b) of the Federal Rules of Civil Procedure.
Opelousas, Louisiana, June 19, 1981.
/s) JOHN M. SHAW
UNITED STATES DISTRICT
COURT
A-26
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
CIVIL ACTION NO, 800569
DEBORAH M. BERTRAND, ET AL
VERSUS
INTERNATIONAL MOORING & MARINE, INC., ET AL
CIVIL ACTION NO. 800570
LISA A. BERTRAND, ET AL
VERSUS
INTERNATIONAL MOORING & MARINE, INC., ET AL
CIVIL ACTION NO, 810079
SHMUEL MEZAN
VERSUS
INTERNATIONAL MOORING & MARINE, INC., ET AL
CIVIL ACTION NO. 81005!
MARILYN EMERY SMITH AND LAWRENCE SMITH
VERSUS
INTERNATIONAL MOORING & MARINE, INC., ET AL
STATE OF LOUISIANA
JUDGMENT
Filed September 25, 1981
The Motia. for Summary Judgment filed by INTER-
A-27
NATIONAL MOORING AND MARINE, INC., having been
duly submitted for adjudication, and the Court considering
the law and the evidence to be in favor of movers, INTER-
NATIONAL MOORING & MARINE, INC., for the reasons
considered by the Judge.
IT IS ORDERED, ADJUDGED AND DECREED that
there be Judgment herein in favor of the defendant, INTER-
NATIONAL MOORING & MARINE, INC. pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure.
THIS 25 DAY OF SEPTEMBER 1981 at OPELOUSAS
LOUISIANA.
/s) JOHN M. SHAW
DISTRICT JUDGE
Copy Sent
DATE 9-25-81
BY RW
TO:
Landry
Conery
Taoblll
Gaudet
Contois
A-28
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
CIVIL ACTION NUMBER 800569
SECTION S$
DEBORAH M. BERTRAND, ET AL
VS.
INTERNATIONAL MOORING & MARINE, INC,
CIVIL ACTION NUMBER 800570
SECTION §
LISA A. BERTRAND, ET AL
VS.
INTERNATIONAL MOORING & MARINE, INC.
CIVIL ACTION NUMBER 810051]
SECTION S$
MARILYN EMERY SMITH, ET AL
VS.
INTERNATIONAL MOORING & MARINE, INC.
CIVIL ACTION NUMBER 810079
SECTION §
SHMUEL MEZAN
VS,
INTERNATIONAL MOORING & MARINE, INC.
A-29
CORRECTED RULING ON MOTIONS FOR
SUMMARY JUDGMENT
Statement of the Case
These consolidated cases arose out of a one-vehicle colli-
sion involving a Ford van operated by Robert Clark on
April 14, 1979, on Louisiana Highway 82, in Cameron Parish,
Louisiana, resulting in injuries to passenger, Shmuel Mezan.
and the deaths of three other passengers, Emile Bertrand, III,
Paul Bertrand and William Emery. Three additional crew
members were passengers in the vehicle. However, no claims
have been presented to this Court by them or on their behalf.
All of the occupants of the vehicle were employees of Inter-
national Mooring and Marine, Inc. (IMM) and except for Paul
Bertrand, were members of an anchoring and mooring crew
which had just completed a one-week job (April 7, 1979, to
April 14, 1979) on the Aquamarine 503 (503), a special-
purpose vessel that Tenneco Oil Company (Tenneco) had
provided in order for IMM to relocate the drilling barge.
Marlin 7, from off the coast of Louisiana, to a point near
Galveston, Texas. Paul Bertrand, a rigger, on call at the IMM
office in New Iberia, was dispatched to Galveston, to bring
the crew back to New Iberia, Louisiana, in the company van
at the completion of the job. On the return trip from Galves-
ton, Robert Clark, the company officer in charge, replaced
Paul Bertrand as driver.
All plaintiffs moved for summary judgment on the grounds
that Shmuel Mezan, Emile Bertrand, II], Paul Bertrand and
William Emery were seamen and members of the crew of the
503, and other vessels in a fleet owned, chartered, and/or
managed or controlled by defendant, IMM. Defendants,
American General Insurance Company and Arkwright Boston
Manufacturers Mutual Insurance Company, have moved for
A-30
summary judgment on the grounds that Mezan, the two
Bertrands and Emery, as a matter of law, were neither sea-
men nor members of the crew of the 503, nor any identifi-
able fleet or group of vessels. For the purpose of this motion,
defendants are not raising any substantial difference between
the status of those who worked on the 503 and Pauli Ber-
trand, who was not a member of the anchor-handling crew on
this job, but was sent by IMM to Galveston, to transport the
crew to New Iberia.
Undisputed Facts
a
On April 14, 1979, the plaintiff, Shmuel Mezan, and
decedents, Emile Bertrand, II] and William Emery, as well
as the supervisor/driver, Robert J. Clark, were employed as
anchor handlers for defendant, IMM.
Il.
IMM did not own any of the vessels on which these an-
chor-handling crew members performed their work.*
Ill.
The injuries and deaths arise from a one-car collision on
Louisiana Highway 82 in Cameron Parish, Louisiana, which
*Plaintiffs claim that IMM did own vessels in that IMM created a
division, INMAR, to provide supply boats for offshore drilling and
production. INMAR is a separate entity from IMM but even if it
weren't, the fact remains that Mezan only worked on one of the five
INMAR boats on two occasions and Bertrand on only one occasion.
A-31
occurred while these employees, in the course of their em-
ployment, were being transported by their employer, IMM,
from Galveston, Texas, to IMM’s office in New Iberia,
Louisiana, after completing a job offshore.
IV.
IMM is an oilfield service corporation with its home in
New Iberia, Louisiana, specializing in the anchoring and
mooring of offshore drilling barges and tender vessels.
e
Specially outfitted vessels are required to perform IMM’s
functions. This work cannot be completed without vessels
equipped for lifting heavy anchors from the ocean bed onto
their decks.
Vi.
These crew members lived and worked aboard this vessel
and similar vessels for the duration of their work assignments,
which generally ranged from several hours to seven days and
the average job lasted four to five days.
VII.
Crew members assisted in getting the vessels into ready
condition for the particular assignment and performed all
of their functions on or from the vessels provided to them.
VIII.
Prior to this particular job aboard the 503, these crew
members had worked on a number of similar vessels provided
A-32
to IMM by their customers for IMM to use in conducting its
anchoring and mooring operations.
IX.
On these type jobs, the vessels were generally chartered by
the customers but at times, IMM acted as a broker for the
customer and did, on occasion, charter vessels directly for
their own use and then bill the customer for the cost.
X.
IMM’s crew included an operator for the mooring winch
on the vessels. The vessels generally provided their own
master, cook, deckhands and mechanic - an ordinary ship’s
complement.
XI.
The anchor-handling crew members performed approxi-
mately ninety per cent of their work aboard vessels. The
other ten per cent of their work was performed ashore in
preparing equipment for their offshore vessel assignments.
XII.
The work records do not substantiate patterns of regular
and continuous jobs on any one vessel or specific fleet of
vessels, although these crews were regularly and continuously
assigned to vessel-related activity and further, their expertise
in anchor handling and mooring rendered them integral and
indispensable to their employer's offshore operations.
A-33
XII.
The 503 was not owned by IMM and had been provided by
Tenneco for use by the anchoring and mooring crew. The
job which had been conducted on and from the 503 had been
an ordinary mooring job, wherein the crew members had
loaded themselves, their equipment and their personal be-
longings onto the vessel to remain for the duration of this
particular job assignment.
XIV.
Immediately prior to the accident, this crew had com-
pleted a seven-day relocation job for Tenneco. Tenneco had
chartered the 50° for IMM’s crew to use in relocating the
Marlin 7 from Intiacoastal City, Louisiana, to off the coast
of Galveston, Texas. The 503 came with an ordinary crew
and was supplemented by the seven-member IMM anchoring
and mooring crew: Robert J. Clark, supervisor; Emile
Bertrand, Ul, operator; Shmuel Mezan, rigger; and William
Emery, rigger and three other members.
ul]
XV.
Paul A. Bertrand was ordinarily a rigger on this crew; how-
ever, on this particular occasion, he has remained at the New
Iberia office of IMM on standby. One of the duties of stand-
by riggers is to drive personnel to and from job sites. There-
fore, when the crew arrived at Galveston, Texas, via heli-
copter from the 503, Paul Bertrand was dispatched from New
Iberia, to transport the crew back to the New Iberia office.
XVI.
The work summaries compiled from individual time sheets
and work records and submitted by counsel as attachments
A-34
to their Motions for Summary Judgment are apparently
incomplete as to William Emery and Paul Bertrand. How-
ever, extensive chronological reviews have been offered on
behalf of Emile Bertrand, II] and Shmuel Mezan. Therefore,
since the excerpts submittgd on behalf of Paul Bertrand and
William Emery indicate that their work patterns would be
very similar to that of the other crew members and since
it is clear that their work is also maritime in nature, this
Court will assume that more complete documentation on
these two individuals would reveal that they, too, performed
above ninety per cent of their work on vessels as did Mezan
and Emile Bertrand, and furthermore, that the average
duration of each vessel-related job which they performed
would be substantially equivalent to those of the other crew
mermbers.*
XVII.
Time sheet summaries indicate that during an eight-month
period, Shmuel Mezan was employed by IMM from Septem-
ber 15, 1978, through April 14, 1979, and he accrued some
2,287 hours. Of those hours, 2,109 were performed on ves-
sels and 178 hours were performed on land preparing equip-
ment in IMM’s yard to be used at sea. Mezan’s record further
indicates that his vessel-related work assignments lasted from
as little as a few hours to as much as one twelve-day hitch,
with an average duration of three to four days. During that
time, Mezan was assigned to four different vessels as many as
three times; on eight vessels twice, and once on the ten other
vessels to which he was assigned during this eight-month
period.
*See Work Summaries - Appendix I
A-35
XVIII.
The work summary of Emile Bertrand, III, spanning a
one-year time period, from April 7, 1978, through the date
of this accident, April 4, 1979, reveals a very similar work
history. Although an hourly breakdown is not provided for
Mr. Bertrand, it appears that all of his work was vessel-
related. Perhaps this is because he was the “operator” of the
mooring winch aboard the vessels, and apparently, he did not
volunteer for the extra hours available ashore, as did Mr.
Mezan and the others.
Emile Bertrand’s work summary reveals that his vessel
assignments ranged from as little as one day to as much as
one nineteen-day hitch, with an average duration of some five
and one-half days. During this one-year period, Bertrand
was assigned to twenty-five different vessels and had been
assigned to four vessels twice; all others once. His summary
indicates that he had had twelve vessel assignments which
lasted five days or longer.
Conclusions of Law
I
An employer, although not a shipowner, can still become
liable to his employees under the admiralty law including the
Jones Act, Mahramus v. American Export Isbrandtsen Lines,
Inc., 475 F.2d 165 (2nd Cir. 1973), and the site of the injury
does not affect recovery if one is, in fact, a seaman, Higgin-
botham v. Mobil Oil Corporation, 545 F.2d 422 (Sth Cir.
1977). However, the fact that one is doing seaman’s work
aboard a vessel when injured, is, by itself, not enough to vest
one with seaman’s status. Longmire v. Sea Drilling Corpora-
tion, 610 F.2d 1342 (Sth Cir. 1980).
A-36
II.
A Court may in the proper case, hold that there is no
reasonable evidentiary basis to support a jury finding that an
injured person is a seaman under the Jones Act. Whether or
not there is a reasonable evidentiary basis for submitting the
issue of seaman status to the jury, the factors to be con-
sidered are set forth in Offshore Company v. Robison, 266
F.2d 769 (Sth Cir. 1959) and reiterated in Longmire, at page
1346:
“(1) [whether] there is evidence that the in-
jured workman was assigned permanently to a
vessel (including special purpose structures not
usually employed as a means of transport by
water but designed to float on water) or per-
formed a substantial part of his work on the
vessel; and (2) [whether] the capacity in which
he was employed or the duties which he per-
formed contributed to the function of the
vessel or to the accomplishment of its mission,
or to the operation or welfare of the vessel in
terms of its maintenance during its movement
or during anchorage for its future trips.
“Robison, 226 F.2d at 779 (emphasis added).* * *”
Il,
Nor does the fact that the injury occurs prior to the
actual arrival aboard a vessel mean that one has not yet
become a seaman. Porche v. Gulf Mississippi Marine Corpora-
tion, 390 F.Supp. 624 (E.D.La. 1975).
A-37
IV.
When transportation to and from work aboard a vessel is
supplied by the employer in the employer’s interests, the
employee is engaged in the course of his employment during
the period of transportation. Vincent v. Harvey Well Service.
441 F.2d 146 (Sth Cir. 1971).
f
The word “‘permanent” has never been given a literal
interpretation under the Jones Act, Davis v. Hill Engineer-
ing, Inc., 549 F.2d 314, 327 (Sth Cir. 1977), and a worker
need not be connected with one vessel in order to meet the
requirements necessary for Jones Act status since a seaman
may be a member of a crew of numerous vessels, Brannif v.
Jackson Ave.-Gretna Ferry, Inc., 280 F.2d 523 (Sth Cir.
1960), and a person wil! not be deprived of his Jones Act
rights merely because he serves aboard a vessel for only a
relatively short period of time. Porche, supra, at page 631.
Vi.
“Nevertheless, the broad parameters of definition must be
established if the terms are to have content.’ Powers v.
Bethlehem Steel Corporation, 477 F.2d 643 (1st Cir. 1973).
If what emerges from facts and inferences taken most favor-
ably to the plaintiff cannot establish a “‘more or less per-
manent connection with the vessel or with a specific group of
vessels”, a jury may not make it one. At times, the Court
uses the words “fleet of vessels’. At other times. it uses
the words “group of vessels’’, and still other times. ‘specific
vessels”. Regardless of which phrase the Court uses. to be a
member of a crew of numerous vessels would require that the
A-38
group or fleet act together under one control or gather
closely together and form a recognizable unit. Therefore,
it would appear that one cannot be a member of a crew of
numerous vessels which have no common ownership or
control.
VIL.
The leading cases that are generally cited to support sea-
men’s status in situations such as this, are Ardoin vy. J. Ray
McDermott & Company, 641 F.2d 277 (Sth Cir. 1981);
Davis vy. Hill, supra; Landry v. Amoco Production Company,
595 F.2d 1070 (5th Cir. 1979); Porche v. Gulf Mississippi,
supra; Brannif v. Jackson Ave.-Gretna Ferry, Inc., supra;
Taylor v. Packer Diving and Salvage Company, 342 F.Supp.
365 (E.D.La. 1971), aff'd., 457 F.2d 512. In all of these
cases, there was evidence from which a reasonable person
could conclude that there was a relationship between the
claimant and a specific vessel or identifiable group of vessels.
In Ardoin, there was evidence that the plaintiff, a struc-
tural welder, could have been permanently assigned to a fleet
of a half dozen derrick barges owned by his employer,
McDermott. The nature of Ardoin’s employment was such
that he never worked except in conjunction with one of these
barges. In Davis, there was evidence that a welder’s helper
could have had a permanent connection with the derrick
barge, W-701, chartered by his employer. In Landry, the
plaintiff worked on her employer's barges and was injured
when she jumped from one to another. In Porche, the
decedent was replacing a man who was a member of the crew
of the RB-2, and lost his life on a crew boat prior to its
arrival at the vessel. In Brannif v. Jackson Ave.-Gretna, it
was a regular part of decedent’s duties to board each of his
employer’s several ferries every morning to determine if any
A-39
repairs or maintenance work was needed. The Court reversed
a summary judgment entered by the trial judge for defendant
and stated it would not offend the permanency requirement
of Robison if the decedent was assigned to several “specific”
vessels or performed a substantial part of his work on the
several “specijied” vessels.
In Taylor, the plaintiff was assigned by his employer to a
pipe-burying barge owned by Aquatic Marine for three
months and then for approximately two months to the barge.
Paker I, which his employer had leased for its own work, and
then to a jack-up barge leased by his employer from Arthur
Levy for underwater welding work on which the plaintiff
spent an entire working month. The Court found that the
plaintiff, injured while temporarily assigned to a land job.
was a seaman. However, in 7ay/or, there was a group of
specified vessels on which the plaintiff performed substan-
tially all of his work.
In Culver v. Slater Boat Company, 644 F.2d 460 (Sth Cir.
1981), the opinion indicates that the widow and children of
a seaman of an anchor-pulling crew sued and recovered under
the Jones Act. However, the issue of the decedent’s status
was evidently conceded and no determination was made by
the jury in the trial court.*
In Magnolia Towing Company y. Pace, 378 F.2d 12 (Sth
Cir. 1967), the plaintiff who worked as a pilot for the defen-
dant tugboat owner was at home off duty in Baton Rouge,
when he was called to Vicksburg, where he was to board a
tugboat as a pilot. Enroute to Vicksburg, he was injured in
an automobile accident. The Court found that he was a
seaman, noting that he was permanently assigned to one or
*See copy of interrogatories attached - Appendix II
A-40
another of the defendant’s tugboats and any uncertainty as
to which one was not material.
Vill,
In Rotolo vy. Halliburton Company, 317 F.2d 9, 13 (Sth
Cir. 1963), decedent was found not to be a seamen when, at
no time, was he permanently assigned to or connected witha
specified boat, or two or more specified boats and did not do
a substantial part of his work on a specified boat or two or
more specified boats.
Often cited (but not controlling),to defeat the permanency
requirement of Robison is the New York State case of
Lotzman v, Oxyness Shipping Co., Inc., 402 N.Y.S.2d 964,
1978 Am. Mar. Cas. 1248 (1978), where the Court found
that a compass adjuster who performed all of his work
aboard vessels was not a Jones Act seaman due to the lack of
any permanent connection with a vessel.
In the recent decision of Aparicio v. Swan Lake, 643 F.2d
1109, (Sth Cir. 1981), the Court held that line handlers,
injured while engaged in the classical seaman’s work of
handling the lines of a vessel on a regular basis do not qualify
as “true seamen” since they are not more or less permanently
assigned to a particular vessel or specific fleet of vessels, but
instead, perform duties aboard any vessel that happens to be
navigating the Panama Canal.
In Guidry v. Continental Oil Company, et al, 640 F.2d 523
(Sth Cir. 1981) the Court made it clear that the relationship
between the individual and an identifiable vessel or group of
vessels must be substantial in point and time, not spasmodic.
A4)
“* * * The kev is that there must be a relation:
ship between the claimant and a specific vessel
or identifiable group of vessels
“Guidry’s deposition was quite explicit his
assignment to any particular structure was ran-
dom. At no time was lic ussigned to work ona
particular rig on a continuous or regular basis.
See, ¢g., Stokes vy. B71. Oilfield Services, Inc.,
617 F.2d 1205, 1207 (Sth Cir. 1980); Keener
vy. Transworld Drilling Co., 468 F.2d 729, 732
(Sth Cir. 1972). Indeed, of the forty different
rigs Guidry was assigned to during his career,
thirteen were non-vessel fixed platforms, seven
were on land, and of the remaining twenty
movable rigs he was on thirteen only once and
never did he return to a specific rig more than
three times.” (Emphasis added)
Although this anchor-handling crew was continuously
subjected to the perils of the sea !ike blue water seamen and
was engaged in classical seaman’s work, the Court finds as a
matter of law that there is no reasonable evidentiary basis
to support a jury finding that the injured party and the
decedents involved herein were permanently assigned to any
specific vessel or group of vessels and therefore, they were
not seamen under the Jones Act. The Motions for Summary
Judgment by the defendants are GRANTED.
Opelousas, Louisiana, July 15, 1981.
/s/John M. Shaw
JOHN M. SHAW
UNITED STATES DISTRICT JUDGE
A42
COI AN hws
Vessel
Inmar Prince
Inmar Count
Cozumel Island
Breton Island
Padre Island
Banda Seahorse
Atlantic Seahorse
Star Light
Morning Light
APPENDIX |
WORK SUMMARIES
SHMUEL MEZAN
Period Covered:
9/15/78-4/14/79
Number of Total Dura-
Assignments tion In
to Vessel Days
2 4
2 2-1/2
| |
2 2
| 12
] 1-1/2
2 3-1/2
EMILE BERTRAND, III
Period Covered:
4/7/78-4/4/79
Number of Total Dura-
Assignments tion In
to Vessel Days
l 3
l 6
] 5
2 6
| 6
WORK SUMMARIES
SHMUEL MEZAN
Period Covered:
EMILE BERTRAND, II!
Period Covered:
A-43
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
9/15/78-4/14/79 4/7/78-4/4/79
Number of Total Dura- Number of Total Dura-
Assignments tion In Assignments tion In
Vessel to Vessel Days to Vessel Days
Northern Light 3 5 2 10
Cpt. Francois LeClerc 3 9
Calico Jack 3 6-1/2 l 5
M/V L’Olonnois 2 4-1/2 l |
Gulf Fleet 14 ] 4
Gulf Fleet 15 | 3
Gulf Fleet 23 2 6
Gulf Fleet 26 2 9
Aquamarine 301 l 3 l 3
Aquamarine 501 | 4
Aquamarine 503 | 8 l 8
A444
21.
22.
23.
24.
25.
26.
r 4B
28.
29.
30.
Vessel
Aquamarine 504
M/V Independence
Freedom Service
Liberty Service
Ocean King
Ocean Marlin
Ocean Tarpon
M/V Salem
State Brigade
State Command
WORK SUMMARIES
SHMUEL MEZAN
Period Covered:
9/15/78-4/14/79
Number of Total Dura-
Assignments tion In
to Vessel Days
] 4
] 4
] 2
2 6
?
EMILE BERTRAND, III
Period Covered:
4/7/78-4/4/79
Number of Total Dura-
Assignments tion In
to Vessel Days
2 6
| 3
| 9
] 4
| 4
] 5
] 11
l 2-1/2
| 4
A-45
WORK SUMMARIES
SHMUEL MEZAN
Period Covered:
9/15/78-4/14/79
Number of Total Dura-
Assignments tion In
Vessel to Vessel Days
31. M/V Bering Seal 3 7-1/2
32. Rhonda Martin | 4
33. Ann Bonney l 2
34. Resolute
EMILE BERTRAND, III
Period Covered:
4/7/78-4/4/79
Number of Total Dura-
Assignments tion In
to Vessel Days
l 2-1/2
2 8
l 19
A-46
APPENDIX II
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION No. 76-1377
SECTION “A”
RUTH CULVER, ETC., ET AL
VS.
SLATER BOAT COMPANY, ET AL
JURY INTERROGATORY FORM
1.Was defendant Gulf Overseas Marine Corporation or
Gulf Overseas Service Corporation negligent in a manner
that was a cause of the injury and death of Mr. Curtis
Culver?
Yes(x) No
Go to Question #2.
2.Was defendant EuroPirates International, Inc. negli-
gent in a manner that was a proximate cause of the in-
jury and death of Mr. Curtis Culver?
~ Yes(x) No
Go to Question #3.
3. Was defendant Ocean Drilling and Exploration Com-
pany or ODECO, Inc. negligent in a manner that was a
proximate cause of the injury and death of Mr. Curtis
Culver?
Yes(x) No
Go to Question #4.
A-47
4. Was the vessel BLACK BART unseaworthy in a manner
that was a proximate cause of the injury and death of
Mr. Curtis Culver?
Yes(x) No
If your answer to either #1 or #2 or #3 or #4 or any
combination of them was “Yes,” go to Question #5.
If your answers to #1 and #2 and #3 and #4 were all
“No,” stop, skip the remaining questions on this form
and return to the Courtroom with your verdict.
5.Was Mr. Curtis Culver negligent in a manner which
contributed to causing his own injury and death?
Yes No(x)
If your answer to #5 was “Yes,” go to Question #6.
If your answer to #5 was “No,” go to Question #7 and
skip #6.
6. If your answer to #5 was “Yes,” then to what extent
did Mr. Culver’s own negligence contribute to his injury?
(Any answer to this question should be expressed in the
form of a percentage.)
Go to Question #7.
7. Fill in the amounts beside the statements below which
will fairly and adequately compensate Mrs. Culver and
her children for their damages. In the event that, as to
any one or more of the following items, you should find
that plaintiff is not entitled to damages, you should not
fill in such blank, but skip it, and go on to the next one.
A. The amount, if any, due to Mrs. Culver
and her children for loss of support from
A-48
May 9, 1975, the date of the accident,
until the present date?
$71,062.00
The amount, if any, Mrs. Culver and/or
her children will lose in support from
Mr. Culver each calendar year after the
date of this trial as the result of his
death?
$13,363.20 per year.
The number of years, if any, Mrs. Culver
and/or her children will sustain the year-
ly loss of support that you have listed in
part (b) of this question. Indicate the
total number of years in the space.
31 years
The amount, if any, Mrs. Culver is due
for loss of her husband’s household
services?
$1,500
The amount, if any, the Culver children
will lose as the result of the loss of their
father’s guidance, training, and nurture
while they are minors; the children’s
names and ages at the time of Mr. Cul-
ver’s death follow. Any answer to this
question must indicate a figure as to
each child.
Benny (13) $5,000
Tonia (9) $5,000
Rodney Wayne (7) $6,000
Bridgett ( 2’ Mos.) $8,000
A-49
f. If you made any award to plaintiffs for
loss of support and/or services in the
future (parts b, c, and d of this ques-
tion), what discount percentage rate do
you find to be applicable in order to re-
duce the award for future loss of support
and/or services to their present value.
(Your answer to this question should be
in the form of a percentage.)
25%
New Orleans, Louisiana, this 28 day of September,
1979.
/s/ Julius Lee
FOREPERSON
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.