Opposition Brief — Easley v. Southern Shipbuilding Corp.

1992

| |} FILED

4 FEB ?1

No. 91-885 —

perics oF :

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

STEVEN L. EASLEY,

Petitioner

¥,

SOUTHERN SHIPBUILDING CORPORATION,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

ROBERT H. MURPHY *

KENNETH J. SERVAY

DouGLAS L. GRUNDMEYER

CHAFFE, MCCALL, PHILLIPS, TOLER

& SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, Louisiana 70163-2300

(504) 585-7000

Attorneys for Respondent,

Southern Shipbuilding

* Counsel of Record Corporation

February 21, 1992

WILSON - EPEsS PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

|

QUESTIONS PRESENTED FOR REVIEW

Respondent, Southern Shipbuilding Corporation, dis-

agrees with Petitioner’s statement of the questions pre-

sented for review. The questions presented for considera-

tion are:

e

Whether the United States Court of Appeals for

the Fifth Circuit and the district court correctly

applied the proper legal standards for determin-

ing seaman status under the Jones Act, 46 U.S.C.

$ 688, consistent with this Court’s recent opin-

ions in Southwest Marine, Inc. v. Gizoni, 502 U.S.

, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991), and

McDermott Int'l, Inc. v. Wilander, 498 U.S. .

111 S.Ct. 807, 112 L.Ed.2d 866 (1991)?

Whether summary judgment dismissing Petition-

er’s Jones Act and general maritime law claims

was appropriate, where no genuine issue of ma-

terial fact existed and where the courts below ap-

plied the proper legal standards concerning Peti-

tioner’s job status?

(i)

ii

LIST OF INTERESTED PERSONS

AND RULE 29.1 CERTIFICATION

The parties to the proceeding below were Petitioner-

Plaintiff, Steven L. Easley, Suzanne Easley (his wife),

and Respondent-Defendant, Southern Shipbuilding Cor-

poration.

Under this Court’s Rule 29.1, Respondent, Southern

Shipbuilding Corporation, certifies that it has no parent

companies and no subsidiaries.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................. i

LIST OF INTERESTED PERSONS AND RULE 29.1

SE i a il

ey) bl | ee iv

STATEMENT OF THE CASE ................... 5 ees 2

A. The Undisputed Facts _........ Goh LEA 2

B. The District Court Proceeding... 3

C. The Fifth Circuit’s Opinion .............0000-- 4

REASONS FOR DENYING THE WRIT ...................... 6

I. THE DECISIONS OF THE FIFTH CIRCUIT

AND THE DISTRICT COURT ARE CONSIST-

ENT WITH THIS COURT’S RECENT GIZONI

AND WILANDER DECISIONS ON SEAMAN

6 y))) a a 6

II. THIS COURT SHOULD REFUSE TO REVIEW

A PROPER SUMMARY JUDGMENT... 10

i 15

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Alabama Dry Dock & Shipbuilding Co. v. Kininess,

554 F.2d 176 (5th Cir.), cert. denied, 434 U.S.

I IEE ol ssc.chs asennad cds sae Seuramcasahada Sek deln 15

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986) ............00002........ 11,12

Arbeeny v. McRoberts Protective Agency, 642 F.2d

672 (2d Cir.), cert. denied, 454 U.S. 836 (1981)... 15

Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067

Ce FR, Ree tts Od cee 3, 6, 7, 10

Bullis v. Twentieth-Century Fox Film Corp., 474

pg i oh AS.) eee CCE ee 13

Campo v. Electro-Coal Transfer Corp., slip opinion

No. 89-3738 (April 23, 1990), 909 F.2d 1480

(Table), 1991 A.M.C. 2657 (5th Cir. 1990),

vacated and remanded, 60 U.S.L.W. 3477 (U.S.,

a Oe ee lind 9

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986) ................................. 12

Easley v. Southern Shipbuilding Corp., 936 F.2d

839 (5th Cir.), rehearing denied, en banc, 943

of et aa 5 Menten keener rere 5, 8,9, 12

Fazio v. Lykes Brothers S.S. Co., Inc., 567 F.2d 301

SO Se es a ceeamamenaneen 13

Gizoni v. Southwest Marine, Inc., 909 F.2d 385 (9th

Cir. 1990), aff’d, 502 U.S. , 112 S.Ct. 486,

po BR SE UR) Renee 3

Graziano v. General Dynamics Corp., 663 F.2d 340

ee a IE ac a or et OO ae eee 15

Griffith v. Wheeling-Pittsburgh Steel Corp., 521

F.2d 31 (3rd Cir. 1975), cert. denied, 423 U.S.

TE ira ae a es a Ril Dey BNE RS a 12

Labit v. Carey Salt Co., 421 F.2d 1333 (5th Cir.

REET INE ek OI TORE TY Bn Ne RUNS A 13

Lormand v. Superior Oil Co., 845 F.2d 536 (5th

Cir. 1987), cert. denied, 484 U.S. 1031 (1988)... 13

Maryland Casualty Co. v. Lawson, 94 F.2d 190

I SU got coer ae Sot ee ie ere 7

Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d

gS RR SPE EPs Seti ER MTS 12,14

v

TABLE OF AUTHORITIES—Continued

Page

McDermott Int'l, Inc. v. Wilander, 498 U.S. ——,

111 S.Ct. 807, 112 L.Ed.2d 866 (1991) ................. passim

Miller v. Patton-Tully Transportation Co., 851 F.2d

5 RR er eaeres eye eres 13

Natl. Union Fire Ins. Co. v. Campo, 60 U.S.L.W.

BEE Cars. GA, Bk ED nediteceticiie een 9

Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747,

ee Te CD henieeeee tices 7

Offshore Company v. Robison, 266 F.2d 769 (5th

SE aaseeecichcegece sooo eeaneinientaani a ccommnnerentne 6, 7

Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d

977 (5th Cir. 1987), cert. denied, 484 U.S. 1059

EI csacstcicanicea <cecscedlcn gantiaeteovsicceedorehiesuiee ee aaenikia al oeeeene 8,9

Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct.

E761, TB tees GS CIGGe) ...-..-..--.......-..-.,.... 11

Sanders v. Alabama Dry Dock & Shipbuilding Co.,

841 F.2d 1085 (11th Cir. 1988) ............................. 15

Southwest Marine, Inc. v. Gizoni, 502 U.S. ——,

112 S.Ct. 486, 116 L.Ed.2d 405 (1991) -........0.... passim

Stokes v. B.T. Oilfield Services, Inc., 617 F.2d 1205

CEE a ee act ccer cect ereenanemnecs 13

White v. Newport News Shipbuilding & Dry Dock

Co., 683 F.2d 1070 (4th Cir. 1980)......................... 15

Whittington v. Sewer Construction Co., Inc., 541

ee - @ik Le AR... | enceeuenoneannnn 13

STATUTES /RULES/PROVISIONS

Oe Ey tie Oe es Oe I ast ko saeccescec ihe passim

a errs sci ontshicva snccsdehiateaglenaaicaim aaa tee 4,8

OP Te Bs 0 Ne esc ccc eee passim

IN THE

Siywrenw Cort of the United States

OCTOBER TERM, 1991

No. 91-885

STEVEN L. EASLEY,

Petitioner

Ws

SOUTHERN SHIPBUILDING CORPORATION,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Southern Shipbuilding Corporation (‘‘South-

ern”), submits that there is no basis for granting a

writ of certiorari in this case. Recently, in Southwest

Marine, Inc. v. Gizoni, 502 U.S. , 112 S.Ct. 486, 116

L.Ed.2d 405 (1991), and in McDermott Int'l, Inc. v.

Wilander, 498 U.S. , 111 S.Ct. 807, 112 L.Ed.2d

866 (1991), this Court clarified the tests for defining

who is a “seaman” entitled to state a cause of action un-

der the Jones Act, 46 U.S.C. App. § 688, and for grant-

ing summary judgment on seaman status. Consistently

with Gizoni and Wilander, the courts below in this case

applied the proper legal standards and correctly deter-

2

mined that no reasonable factfinder could conclude that

Petitioner was a Jones Act seaman rather than a ship-

builder or ship repairer limited to compensation reme-

dies under the Longshore and Harbor Workers’ Com-

pensation Act (“LHWCA”), 33 U.S.C. $$ 901, et seq.

The decisions of the court of appeals and the district

court neither raise any unsettled issues warranting this

Court’s attention, nor conflict with any decision of this

Court or any United States Court of Appeals. Petitioner

has presented no compelling reason for granting certiorari

to review a carefully reasoned summary judgment

squarely within the controlling law.

STATEMENT OF THE CASE

Petitioner’s statement of the course of proceedings and

disposition below at pages 2-3 of his writ petition cor-

rectly recounts the procedural history of this case. How-

ever, Respondent. restates the pertinent facts as follows:

A. The Undisputed Facts

The relevant facts, all of which are uncontested, are

fully set forth in the decisions of the district court and

the Fifth Circuit reproduced as appendices to Easley’s

writ petition. Southern Shipbuilding Corporation operates

a shipyard in Slidell, Louisiana, where it repairs and con-

structs vessels, in addition to performing salvage opera-

tions. Petitioner Easley, a 20-year employee with South-

ern, worked as a “mechanic” in the shipyard. His duties

included repairing cranes and shipyard equipment, as

well as cutting grass, working in the compressor room,

and maintaining Southern’s drydock.

In earlier years, Easley had worked as a deckhand

aboard Southern’s vessels, but since 1987, at his own re-

quest, he was reassigned to the aforementioned duties

as a land-based mechanic. However, at the time of his ac-

cident in this case, Easley was working on a one-day

assignment as a temporary deckhand aboard one of his

employer’s vessels, the D/B SOUTHERN NO. 6. As

3

Easley concedes at pages 3-4 of his writ petition, of the

total 159 hours he. worked in the month before his acci-

dent, he spent only eight hours on a vessel, while spend-

ing the remaining 151 hours, or approximately 95% of

his time, on land as a shipyard mechanic.

Although Easley styles himself as a “regular substitute

deckhand,” the undisputed facts established that he had

been assigned to the vessel for only a single day at the

time of his injury, that his deckhand duties were only

sporadic and intermittent, and that he filled in only be-

cause permanent crewmembers were unavailable. Easley

presented no evidence that his permanent job assignment

as a land-based worker had changed in the two and one-

half years since 1987, that he received anything other

than a standard wage regardless of the type of work he

performed, or that he accounted for his time any dif-

ferently for his minimal and random vessel-related work.

B. The District Court Proceeding

As Easley notes at pages 2-3 of his petition for a writ

of certiorari, he iffitially filed a negligence claim against

Southern under the Jones Act. The district court granted

Southern’s motion for summary judgment, dismissing this

claim on grounds that Easley was not a seaman. In its

“Order and Reasons” entered on October 18, 1990 (see

pages A-l through A-3 of Easley’s writ petition), the

district court applied the two-part test for determining

seaman status set forth in Barrett v. Chevron U.S.A,

Inc., 781 F.2d 1067 (5th Cir. 1986) :

In order to prove that he is a seaman, entitled to

compensation under the Jones Act, the plaintiff must

show that: (1) he was permanently assigned to a

vessel or performed a substantial part of his work on

a vessel; and (2) the capacity in which plaintiff per-

formed contributed to the function of the vessel, its

mission, its operation, or its welfare.

Writ petition, page A-2. Citing Gizoni v. Southwest

Marine, Inc., 909 F.2d 385 (9th Cir. 1990), which this

Court later affirmed, the district court specifically stated

4

that it would “look at the nature of the work actually

done by the piaintiff and not his job titles” in deciding

the motion for summary judgment. Jd.

Applying this correct statement of law to the undis-

puted facts, the district court concluded that Easley’s

assignments to his employer’s vessel were “intermittent

and transitory,” whereas “his permanent job assign-

ment remained land-based.” See writ petition, page A-3.

Even accepting plaintiff’s assertion that he had worked

11.5% of his time on a vessel, the court found that this

temporary vessel assignment was not a regular and con-

tinuous change in his normal function as a machinist

in the shipyard. Jd. Thus, even when viewed in a light

most favorable to the plaintiff, the evidence could not

reasonably lead to a conclusion that Easley was a seaman.

After the district court dismissed his Jones Act claim,

Easley moved to amend his complaint to allege a claim in

negligence under 33 U.S.C. §905(b) and the general

maritime law. Southern moved to dismiss this claim on

grounds that Easley’s sole remedy against his employer

and its vessel was compensation under the LHWCA.

Viewing the undisputed evidence again in the light most

favorable to the plaintiff, the district court concluded that

Easley’s job of repairing cranes, working in the compres-

sor room, and maintaining the drydock supported his em-

ployer’s shipbuilding and ship repair business. Because

Easley was thereby directly involved in shipbuilding and

ship repair work, the court found him to be a shipbuilder

or ship repairer barred by the express provisions of 33

U.S.C. § 905(b) from suing his employer or its vessel for

damages under § 950(b) or the general maritime law.

See district court’s “Order and Reasons” entered on De-

cember 11, 1990 (reproduced at pages A-4 through A-6

of Petitioner’s writ application).

C. The Fifth Circuit’s Opinion

On July 30, 1991, the United States Court of Appeals

for the Fifth Circuit affirmed the district court’s rulings.

5

Easley v. Southern Shipbuilding Corp., 936 F.2d 839

(5th Cir.), rehearing denied, en bane, 943 F.2d 1315

(5th Cir. 1991), reproduced at pages A-8 through A-20

of plaintiff’s writ petition. Citing this Court’s decision in

Wilander, the Fifth Circuit recognized that a maritime

worker “cannot be both a seaman for Jones Act purposes

and a longshoreman under the LHWCA.” 936 F.2d at

842; writ petition, page A-13. The court of appeals then

proceeded to analyze the undisputed facts and concluded

that the district court had correctly found that Easley

was a ship repairman covered by the LHWCA rather

than a Jones Act seaman... The Fifth Cireuit did not

simply analyze Easley’s job assignment in light of his

LHWCA job status, but alternatively looked to seaman-

status cases under the Jones Act, as well as “member

of the crew” cases under the LHWCA in reaching its

decision :

If we were to analyze Easley’s assignment with re-

spect to seaman status instead of longshoreman

status, we would be forced to the same conclusion

even accepting the plaintiff’s argument that he was

a “regular” substitute deckhand. Easley’s sporadic

and intermittent assignments to Southern’s vessels

simply were not substantial in the context of his

employment. Moreover, with the exception of his oc-

casional deckhand assignments, we see nothing in the

record that would distinguish any of his activities

as clearly non-ship repair... .

936 F.2d at 844-845; writ petition, page A-18. The

Fifth Circuit therefore affirmed the summary judgment,

concluding that Easley was not a Jones Act seaman.

Furthermore, as an LHWCA-covered worker directly in-

volved in the shipbuilding or repair process, he could not

maintain an action for negligence or unseaworthiness

under the general maritime law against his employer or

its vessel. 936 F.2d at 845; writ petition, page A-19.

6

REASONS FOR DENYING THE WRIT

I. THE DECISIONS OF THE FIFTH CIRCUIT AND

THE DISTRICT COURT ARE CONSISTENT WITH

THIS COURT’S RECENT GIZONI AND WILANDER

DECISIONS ON SEAMAN STATUS

In Southwest Marine, Inc. v. Gizoni, 502 U.S. ——,

112 S.Ct. 486, 116 L.Ed.2d 405 (1991), this Court held

that a maritime worker engaged in an occupation enum-

erated in the LHWCA may nonetheless be a “seaman”

within the meaning of the Jones Act, depending upon

the nature of the work rather than the worker’s job

title. This Court further held that a district court cannot

deny seaman status as a matter of law solely because the

claimant’s job title or occupation falls within one of the

enumerated occupations defining an employee under the

LHWCA. Nonetheless, this Court also recognized in

Gizoni that summary judgment limiting a worker to

LHWCA remedies is appropriate, if no genuine issue of

material fact exists as to whether the worker is a sea-

man under the Jones Act. 112 S.Ct. at 492.

This Court also recently clarified the test for deter-

mining whether a party is a seaman. In McDermott

Int’l, Inc. v. Wilander, 498 U.S. , 111 S.Ct. 807, 112

L.Ed.2d 866 (1991), this Court acknowledged the Fifth

Cireuit’s long-standing, two-part analysis for seaman

status in Offshore Company v. Robison, 266 F.2d 769

(5th Cir. 1959), the same test set forth in Barrett v.

Chevron U.S.A., Inc., cited above, which the courts be-

low applied in this case. 111 S.Ct. 809-810, 817. Under

that test, a party is considered a seaman if only (1) the

party is permanently attached to or performs a substan-

tial part of his or her work aboard a single vessel or an

identifiable fleet of vessels and (2) if the party’s employ-

ment contributes to the function-or mission of the vessel

or an identifiable fleet of vessels. In Wilander, this Court

recognized these guidelines in determining seaman status.

Id.

7

This Court further recognized in Wilander that the

purpose of the LHWCA is to remove land-based mari-

time workers from the scope of Jones Act coverage, while

leaving sea-based maritime employees as seamen under

the Jones Act. 111 S.Ct. at 813-14. In other words, the

phrase “master or member of a crew” as used in the

LHWCA exemption from coverage “restates who a ‘sea-

man’ under the Jones Act is supposed to be: a sea-based

maritime employee.” 111 S.Ct. at 814. As it had done

earlier in Norton v. Warner Co., 321 U.S. 565 (1944),

this Court in Wilander again quoted with approval the

following language concerning seaman status from the

Fifth Circuit’s opinion in Maryland Casualty Co. v. Law-

son, 94 F.2d 190, 192 (5th Cir. 1938): “There is implied

a definite and permanent connection with a vessel, an ob-

ligation to forward her enterprise.” 111 S.Ct. 817 (em-

phasis added). This Court ultimately held in Wilander,

“Whether under the Jones Act or general maritime law,

seamen do not include land-based workers.” 111 S.Ct. at

814.

Petitioner misstates the first question presented for

review by improperly asserting that the trial court dis-

missed his Jones Act claim after finding that he was “an

employee in an occupation specifically covered by the

LHWCA.” By framing his question in that fashion, Pe-

titioner would have this Court believe that the district

court and the Fifth Circuit’s decisions are directly con-

trary to Gizoni. No such conflict exists.

As noted earlier, in its Order and Reasons entered on

October 18, 1990 (see pages A-1 through A-3 of Peti-

tioner’s writ application), the district court cited the

Ninth Circuit’s decision in Gizoni and expressly stated

that it “prefers to look at the nature of the work actually

done by the plaintiff and not his job titles.” Writ peti-

tion, page A-2 ‘emphasis added). The district court then

applied the two-part Barrett/Robison test for Jones Act

seaman status to determine if it could be reasonably

found (1) that plaintiff was permanently assigned to a

--

8

vessel or performed a substantial part of his work on a

vessel and (2) that his capacity contributed to the func-

tion of the vessel, its mission, its operation, or its wel-

fare. Writ petition, pages A-2 and A-3.

The district court’s approach was entirely consistent

with Gizoni and Wilander. Based on undisputed facts,

the court correctly determined that plaintiff’s random,

brief, intermittent, and transitory assignment as a sub-

stitute deckhand did not constitute a permanent assign-

ment to a vessel or a substantial part of his work. Writ

petition, page A-8. It was only later—after it had cor-

rectly analyzed the seaman status issue and dismissed the

Jones Act claim and after Easley had moved to amend his

complaint to assert a vessel negligence action under 33

U.S.C. § 905(b) of the LHWCA or, alternatively, a gen-

eral maritime Jaw claim as an employee allegedly not

covered by the LHWCA—that the district court deter-

mined that he was a ship repairer or shipbuilder limited

exclusively to LHWCA compensation remedies against his

employer. See district court’s Order and Reasons entered

on December 11, 1990 (reproduced at pages A-4 through

A-6 of Petitioner’s writ application).

In affirming the district court, the Fifth Circuit did rely

in part on its decision in Pizzitolo v. Electro-Coal Transfer

Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484

U.S. 1059 (1988), holding that Easley, as “a member

of an enumerated classification under the LHWCA,” could

not be a seaman. 936 F.2d at 845, n.7; writ petition,

page A-18. In Gizoni, this Court effectively overruled

Pizzitolo. Nonetheless, the Fifth Circuit’s reliance on

Pizzitolo provides no basis for granting a writ in this

case. The appellate court did not deny Easley seaman

status solely because he was a shipbuilder or ship repair-

man. The Fifth Circuit also employed the same seaman

status analysis as the district court. Citing this Court’s

decision in Wilander, the Fifth Circuit noted that a

worker cannot be both a seaman for Jones Act purposes

and a longshoreman under the LHWCA. 936 F.2d 842;

9

writ petition, page A-13. The appellate court specifically

analyzed Easley’s work “with respect to seaman status”

and reached the same conclusion as the district court,

holding that Easley’s sporadic and intermittent assign-

ment as a deckhand was not substantial enough in the

context of his entire employment to qualify him for sea-

man status under the established two-part test. 936

F.2d at 844-845; writ petition, pages A-17 and A-18.

Because the Fifth Circuit alternatively analyzed Easley’s

seaman status without regard to his job title, as required

by Gizoni, and concluded that Easley was neither per-

manently assigned to a vessel nor performed a substantial

part of his work aboard a vessel as required for Jones

Act seaman status, its partial reliance on Pizzitolo is ulti-

mately inconsequential. There is no need to grant cer-

tiorari, vacate the judgment, and remand this case to the

Fifth Circuit for reconsideration in light of Gizoni. The

district and appellate courts have already fully satisfied

the mandate of this Court’s recent holding.’

The courts below applied the proper legal test for

seaman status, and their judgments do not conflict with

any decision of this Court or any other circuit. This case

simply presents no compelling or unanswered issue of

law for this Court to resolve. This Court has already

1 Respondent is aware of this Court’s recent disposition on Janu-

ary 13, 1992 in Nos. 90-722 and 90-596, Campo v. Electro-Coal

Transfer Corp. and Natl. Union Fire Ins. Co. v. Campo, 60 U.S.L.W.

3477, vacating a judgment of the Fifth Circuit and remanding that

case to the court of appeals for further consideration in light of

Gizoni. However, the Fifth Circuit in Campo relied solely on Pizzi-

tolo to deny seaman status to a plaintiff because he was engaged

in an occupation expressly enumerated in the LHWCA. Campo v.

Electro-Coal Transfer Corp., 1991 A.M.C. 2657, 2658-2659 (5th Cir.

1990); slip opinion No. 89-3738 (April 23, 1990) at pp. 3-4. Here,

unlike Campo, the Fifth Circuit, in addition to citing Pizzitolo,

applied a seaman status analysis consistent with Gizoni and Wilander.

936 F.2d at 844-845; writ petition, pages A-17 and A-18. Thus,

Campo is readily distinguishable and does not support a similar writ

grant and remand in this case.

10

provided all the guidance necessary to decide this case,

and the courts below have analyzed the undisputed facts

and reached a result consistent with controlling Supreme

Court jurisprudence. Petitioner has presented no basis

for granting a writ in this case.

II. THIS COURT SHOULD REFUSE TO REVIEW A

PROPER SUMMARY JUDGMENT

In his second and third questions presented for review,

Petitioner is essentially asking this Court to overturn a

proper summary judgment of dismissal, even though he

can point to no error of law or any genuine issue of

material fact that would warrant a trial on the merits.

Four judges in the courts below, after examining the

undisputed facts and correctly applying controlling legal

standards, have already determined that no reasonable

factfinder could conclude that plaintiff Easley was a

Jones Act seaman.

Petitioner acknowledges that the two-part test for

seaman status requires that the worker be permanently

assigned to a vessel or perform a substantial part of his

work on it. See writ petition, page 8. In this case, Peti-

tioner clearly failed to meet either requirement. Easley

admits that he was never “permanently” assigned to his

employer’s vessels, but only worked on them temporarily.

His work aboard the D/B SOUTHERN NO. 6 was for

only one day. See writ petition, page 6. To satisfy the

requirement of “substantial work,” the claimant must

prove a relationship to a vessel “that is substantial in

point and time and not merely spasmodic.” Barrett v.

Chevron U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.

1979). Easley’s work aboard vessels was most certainly

not substantial in this case, where he spent approximately

90-95% of his working hours in land-based duties. Fur-

thermore, his vessel-related work was random and for-

tuitous, whereas his land-based activities constituted his

permanent job assignment and virtually the entirety of

his employment.

.

11

Easley further concedes that summary judgment is

proper where the facts establish the lack of seaman status

as a matter of law and where the record contains no

reasonable evidentiary basis to support a finding other-

wise. See writ petition, page 8. His petition for a writ

of certiorari presents no compelling reason for this Court

to review a proper decision entered in accordance with

the recognized test for seaman status and this Court’s

landmark decisions on summary judgment. The undis-

puted facts of this case present no issue warranting this

Court’s attention.

In Wilander and Gizoni, this Court he!d that the ques-

tion of who is a “member of the crew” or “seaman” is

“a mixed question of law and fact.’”’ Wilander, 111 S.Ct.

818; Gizoni, 112 S.Ct. 491-492. Although this question of

seaman status is necessari’y fact-specific, this Court has

recognized that “summary judgment or directed verdict

is mandated where the facts and the law will reasonab'y

support only one conclusion.” Wilander, 111 SCt. at

818, citing Anderson v. Liberty Lobby, -Inc., 477 U.S.

242, 248, 251 (1986). When the underlying facts are

established, and the rule of law is undisputed, the

issue is whether the facts meet the statutory standard.

Wilander, 111 S.Ct. at 818, citing Pullman-Standard v.

Swint, 456 U.S. 273, 289, n.19 (1982). If no genuine

issue of material fact exists as to whether the worker

was a seaman under the Jones Act, then a maritime

worker employed by a shipyard is limited to LHWCA

remedies. “ zoni, 112 S.Ct. at 492.

In Gizoni, this Court held that a ship repairman who

spends “all of his working hours aboard a vessel—even

one used exclusively in ship repair work” nonetheless

“may qualify as a Jones Act seaman.” 112 S. Ct. at 494

(emphasis added). In Gizoni, questions of fact existed

whether a floating platform used by a rigging foreman in

his regular work at a shipyard was a vessel in navigation

and whether the worker had a sufficient connection to the

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12

platform to qualify for seaman status. Under those cir-

cumstances, the question of seaman status was one for the

jury, where reasonable persons, applying the proper legal

standard, could differ as to whether that employee was a

member of the crew. Unlike Gizoni, this case presents no

issue for the factfinder. The undisputed evidence in this

case established that Easley was a land-based shipyard

worker who only intermittently worked as a substitute

deckhand aboard his employer’s vessels. Thus, Gizoni does

not require this Court to grant writs to review the sum-

mary judgment in this case.

Applying this Court’s mandate for deciding summary

judgment motions enunciated in Celotex Corp. v. Catrett,

477 U.S. 317 (1986), both the district court and the Fifth

Circuit accepted as true plaintiff’s assertions that he

worked only 11.5% of his time on the vessel, and neces-

sarily found that his assignment to the vessel was “inter-

mittent and transitory while his permanent job assign-

ment remained land-based.” See page A-3 of Petitioner’s

writ application. Thus, “even accepting the plaintiff’s

argument that he was a ‘regular’ substitute deckhand,”

plaintiff’s “sporadic and intermittent assignments to

Southern’s vessels were simply not substantial in the con-

text of his employment.” Easley, 936 F.2d 844-845; writ

petition, page A-18. Under these circumstances, summary

judgment was not only consistent with this Court’s juris-

prudence, but was mandated by it. See Celotex, cited

above; see also Anderson v. Liberty Lobby, Inc., cited

above; Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986) .*

*Summary judgment dismissing Easley’s Jones Act claim was

likewise consistent with a long line of prior decisions in several

circuits denying seaman status to shore-based workers with only

intermittent relationships to vessels. See Griffith v. Wheeling-

Pittsburgh Steel Corp., 521 F.2d 31 (3rd Cir. 1975), cert. denied,

423 U.S. 1054 (1976), holding that a land-based laborer’s temporary

assignment to work with a barge crew for only three and three-

18

By arguing that he was working as a “regular sub-

stitute deckhand” at the time of his accident, Easley seeks

to create a factual question of seaman status from a

job title alone, rather than the totality of actual work

he performed. In Gizoni, this Court expressly rejected

that approach. Gizoni teaches that the proper inquiry

is whether the nature of the claimant’s work makes him

a sea-based employee instead of a land-based worker.

Easley’s attempt to label himself as a ‘‘deckhand” ignores

the reality of his permanent land-based job as a mechanic

and raises, at best, nothing more than a “metaphysical

quarter days of his 74 days of employment did not satisfy the re-

quirement of a permanent connection to a vessel and, as a matter of

law, did not give rise to seaman status; Whittington v. Sewer Con-

struction Co., Inc., 541 F.2d 427 (4th Cir. 1976), holding that a

shore-based worker who had incidental and intermittent duties

aboard a barge moored to a bridge was not a seaman; Lormand v.

Superior Oil Co., 845 F.2d 536 (5th Cir. 1987), cert. denied, 484

U.S. 1031 (1988), granting summary judgment denying seaman

status to a welder who performed only 14 percent of his work ac-

tivity aboard vessels; Stokes v. B.T. Oilfield Services, Inc., 617 F.2d

1205 (5th Cir. 1980), granting summary judgment denying seaman

status to a land-based roustabout who lacked permanent attachment

to a vessel, where in his 28 work days before his accident aboard a

barge, he had spent 27 days in land-based employment and only one

day at sea; Fazio v. Lykes Brothers S.S. Co., Inc., 567 F.2d 301

(5th Cir. 1978), granting summary judgment denying seaman status

to a shore gang worker who performed no permanent duties aboard

vessels, though from time to time he did perform transitory vessel

repair jobs; Labit v. Carey Salt Co., 421 F.2d 1333 (5th Cir. 1970),

granting summary judgment denying the Jones Act claim of a shore-

based worker who loaded vessels with bulk salt and who only

occasionally and sporadically operated a power boat to position the

vessels for loading; Miller v. Patton-Tully Transportation Co., 851

F.2d 202 (8th Cir. 1988), denying seaman status to a bulldozer oper-

ator who spent only one-third of his time on water, which was not

“substantial” enough a part of his work to qualify him as a seaman;

Bullis v. Twentieth-Century For Film Corp., 474 F.2d 392 (9th Cir.

1973), granting summary judgment denying seaman status to off-

duty servicemen acting as temporary or transitory extras on a vessel

during filming of a motion picture.

14

doubt” insufficient to create a genuine issue of material

fact. See Matsushita, 475 U.S. at 586.

The undisputed facts in this case, even when viewed in

a light most favorable to the plaintiff, establish that

Easley was a land-based shipyard mechanic who neither

had any permanent attachment to a vessel nor performed

a substantial part of his work on a vessel. Accordingly,

he failed to carry his burden of proving seaman status.

Consistent with this Court’s jurisprudence, the district

court properly granted summary judgment dismissing

his Jones Act claims, and the Fifth Circuit correctly af-

firmed the district court’s decision. Under these circum-

stances, Petitioner presents no valid reason for granting

certiorari in this case.

At pages 10-13 of his writ petition, Easley further

argues that he may maintain a claim under the general

maritime law against his employer even if he is not found

to be a Jones Act seaman. He contends that he spent

some of his time “doing substitute seaman’s work,” but

asserts that he spent no time whatsoever doing “long-

shoring, shipbuilding, ship repairing, or ship breaking”

that would make him an LHWCA employee limited to a

compensation remedy against his employer. These argu-

ments are meritless, because the undisputed facts show

that Easley was directly involved in shipbuilding and ship

repair work.

In his work as a mechanic for Southern, Easley admit-

tedly spent at least 90% of his time repairing his em-

ployer’s cranes, working in the compressor room, main-

taining a drydock, and performing other duties in the

shipyard. These activities directly involved him in the

work of shipbuilding and ship repairing, even though he

may not have personally built or repaired ships himself.

The cranes, equipment, and drydock that he maintained

and repaired were used in his employer’s work of ship-

building and ship repairing, and he furthered his em-

ployer’s mission through his land-based job.

15

In Alabama Dry Dock & Shipbuilding Co. v. Kininess,

554 F.2d 176, 178 (5th Cir.), cert. denied, 434 U.S. 903

(1977), cited by both courts below, a worker was injured

while sandblasting an unassembled crane in a shipyard.

He was a “shipbuilder” covered by the LHWCA, because

his activity was a necessary prerequisite for use of the

crane and because the assembled crane would be directly

involved in the shipbuilding process. Accord, Graziano

v. General Dynamics Corp., 663 F.2d 340 (1st Cir. 1981) ;

Arbeeny v. McRoberts Protective Agency, 642 F.2d 672

(2d Cir.) ; cert. denied, 454 U.S. 8386 (1981); White v.

Newport News Shipbuilding & Dry Dock Co., 633 F.2d

1070 (4th Cir. 1980); Sanders v. Alabama Dry Dock &

Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988).

Easley’s duties in maintaining his employer’s equipment,

including cranes and a drydock, dictate the same result

in this case. The courts below therefore correctly held

that he was an employee covered by the LHWCA. Again,

Petitioner presents no compelling reason for this Court to

review a well-reasoned summary judgment fully war-

ranted by the facts and the controlling law.

CONCLUSION

The decisions of the district court and the Fifth Circuit

are consistent with this Court’s requirements for seaman

status and summary judgment set forth in Gizont, Wil-

ander, and other established Supreme Court jurispru-

dence. Easley’s writ application presents no meritorious

reasons for granting certiorari. The Fifth Circuit’s de-

cision does not conflict with any decision of this Court

or of any other United States Court of Appeals on the

matters presented in this case. Nor does this case pre-

sent any unsettled or important question of law that this

Court has not already decided. For-.the reasons dis-

cussed above, Respondent, Southern Shipbuilding Corpora-

tion, respectfully submits that this Court should deny

Petitioner’s request for a writ of certiorari.

* Counsel of Record

February 21, 1992

16

Respectfully submitted,

ROBERT H. MURPHY *

KENNETH J. SERVAY

DOUGLAS L. GRUNDMEYER

CHAFFEE, MCCALL, PHILLIPS, TOLER

& SARPY -

2300 Energy Centre

1100 Poydras Street

New Orleans, Louisiana 70163-2300

(504) 585-7000

Attorneys for Respondent,

Southern Shipbuilding

Corporation

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