IN THE UNITED STATES COURT
FOR THE FIFTH CIRCUIT
In Re: In the Matter of the Complaint
Marine, Inc. and Tako Towing, Inc.,
Owner and/or owner pro hac vice
vessel M/V Tako Endeavor, her engines,
tackle, appurtenances, etc., praying
Exoneration from or Limitation of
ENDEAVOR MARINE, INC.; TAKO TOWING,
as owner and/or owner pro hac vice
vessel M/V Tako Endeavor her engines,
tackle, appurtenances, etc., praying
exoneration from or limitation of
CRANE OPERATORS, INC.; ET AL.,
CRANE OPERATORS, INC.,
KEVIN M. BAYE, SR.,
Appeals from the United
States District Court for the
Eastern District of Louisiana
December 11, 2000
Before REYNALDO G. GARZA, JOLLY,
and HIGGINBOTHAM, Circuit Judges.
This appeal of a summary judgment
presents a question of "seaman" status under the Jones
Act. Kevin Baye, a crane operator assigned to the derrick barge
FRANK L, was injured while attempting to moor the FRANK L to
a cargo vessel in the Mississippi River. The district court,
finding that Baye's "duties do not take him to sea,"
denied seaman status to Baye and granted summary judgment for
Baye's employer, Crane Operators, Inc. Having reviewed the record,
we conclude, as a matter of law, that Baye was a seaman. Accordingly,
we reverse the judgment of the district court and remand for
On April 4, 1996, Kevin Baye sustained
disabling knee and back injuries when he was struck by a mooring
line while working aboard the FRANK L. Baye was an employee of
Crane Operators, Inc., a company that provides personnel on an
as-needed basis to businesses that own or operate cranes and
other heavy lift equipment.
The accident occurred in the Mississippi
River while the tug boat TAKO ENDEAVOR was pushing the FRANK
L alongside a cargo vessel that the Frank L was assigned to unload.
Baye was standing near the head of the FRANK L with a deck hand
waiting for the barge to be positioned alongside the cargo vessel
so he could pass a mooring line to the deck hands aboard the
cargo vessel. While being pushed into position by the TAKO ENDEAVOR,
the stern mooring cable of a nearby derrick barge, the AGNESS,
snagged on the FRANK L's hull. The line snapped and popped up
onto the deck of the FRANK L striking Baye in the leg.
After receiving benefits under the
Longshore and Harbor Workers' Compensation Act, Baye sought recovery
under the Jones Act. On November 10, 1996, he filed suit in the
Civil District Court of Orleans Parish against Crane Operators,
Ryan-Walsh, Inc., the owner of the FRANK L, and Tako Towing,
Inc ("Tako") and Endeavor Marine ("Endeavor")
the owners of the TAKO ENDEAVOR. On March 11, 1998, Tako and
Endeavor filed a petition for limitation of liability in federal
court. See 46 U.S.C. § 183 (West 1999).(1)
Pursuant to the Limitation of Liability Act, the district court
stayed the state court proceeding. See id. In addition
to Baye, Crane Operators and Ryan-Walsh filed claims in the limitation
proceeding against Tako and Endeavor. Tako and Endeavor then
filed a counterclaim against Crane Operators for contribution
and indemnification. Crane Operators responded by moving for
summary judgment in the limitation action arguing that there
could be no Jones Act liability because Baye was not a "seaman."
On February 12, 1999, the district
court granted summary judgment for Crane Operators concluding
that "Kevin Baye is not a Jones Act seaman because his duties
do not take him to sea." In reaching this conclusion, the
district court recognized that the crucial issue in this case
was whether Baye had satisfied the second prong of Chandris--that
is, whether Baye's connection to the FRANK L in navigation was
substantial in terms of both its duration and its nature. See
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). The
court stated that it was conceded by the defendants that the
FRANK L was a "vessel in navigation" and that the requirement
that Baye's connection to the FRANK L be substantial in duration
was met. However, the district court--faced with a plaintiff
whose primary duties aboard the vessel were in the nature of
longshore work--concluded that Baye's connection to the FRANK
L was not substantial in terms of its nature because his duties
did not carry him to sea.
In reaching the conclusion that
the nature of Baye's duties was insufficient to convey "seaman"
status upon him, the district court seems to have relied upon
the following statement of the Supreme Court in Harbor Tug
and Barge Co. v. Papai, 520 U.S. 548 (1997):
For the substantial connection requirement
to serve its purpose, the inquiry into the nature of the employee's
connection to the vessel must concentrate on whether the employee's
duties take him to sea.
at 555. The district court thus understandably surmised that
the "linchpin" of the substantial connection test is
whether the claimant's duties carry him to sea. After reviewing
the summary judgment evidence, the court concluded that because
Baye's duties do not literally carry him to sea, he could "not
satisfy the second prong of the Chandris test." Baye,
Tako, and Endeavor each filed timely notices of appeal from the
district court's judgment.(2)
We review the district court's grant
of summary judgment de novo, applying the same standard as the
district court. SeeStarkman v. Evans, 198 F.3d 173, 174
(5th Cir. 1999)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). Because the determination of whether an injured
worker is a seaman under the Jones Act is a mixed question of
law and fact, it is usually inappropriate to take the question
from the jury. Harbor Tug, 520 U.S. at 554. "Nevertheless,
'summary judgment . . . is mandated where the facts and the law
will reasonably support only one conclusion.'" Id.
(quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337,
As the courts have often lamented,
the term "seaman" is not defined in the Jones Act.
Thus, the difficult--perhaps insurmountable--task of giving a
cogent meaning to this term has been left to the courts. In Chandris,
the Supreme Court significantly helped by delineating a two-prong
test to determine whether an employee is a "seaman":
First, . . . an employee's duties
must contribute to the function of the vessel or to the accomplishment
of its mission. . . .
Second, . . . a seaman must have
a connection to a vessel in navigation (or to an identifiable
group of such vessels) that is substantial in terms of both its
duration and its nature.
515 U.S. at 368, 115 S.Ct. 2172. To satisfy the first prong of
the Chandris test, the claimant need only show that he/she
"do[es] the ship's work." Id. As the Court observed,
this threshold requirement is "very broad." Id.
The second prong of the Chandris
test is intended "to separate the sea-based maritime employees
who are entitled to Jones Act protection from those land-based
workers who have only a transitory or sporadic connection to
a vessel in navigation." Id. As the Court explained,
the total circumstances of an individual's
employment must be weighed to determine whether he had a sufficient
relation to the navigation of the vessels and the perils attendant
thereon. The duration of the worker's connection to a vessel
and the nature of the worker's activities taken together, determine
whether a maritime employee is a seaman because the ultimate
inquiry is whether the worker in question is a member of the
vessel's crew or simply a land-based employee who happens to
be working on the vessel at a given time.
515 U.S. at 370 (citations omitted).
Even though the nature of the worker's
activities is a factor in determining his substantial connection
to the vessel, the Chandris Court emphasized that there
is "a status-based standard" for determining Jones
Act coverage. Chandris, 515 U.S. at 358. In other words,
"it is not the employee's particular job that is determinative
[of seaman status], but the employee's connection to a vessel."
Id. at 364. Thus, even a ship repairman (which is traditional
longshoreman work and is one of the enumerated occupations under
the LHWCA) may qualify for seaman status if he has the requisite
employment-related connection to the vessel. Id. at 363-64
(citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81
The Court revisited Chandris
in Harbor Tug in 1997. The Harbor Tug Court explained
that the inquiry into the worker's employment-related connection
to the vessel
must concentrate on whether the
employee's duties take him to sea. This will give substance
to the inquiry both as to the duration and nature of the employee's
connection to the vessel and be helpful in distinguishing land-based
from sea-based employees.
520 U.S. at 555 (emphasis added). The meaning of the "going
to sea" test will be discussed below.
Turning to the facts of this case,
it is undisputed that Baye's duties contribute to the function
and the mission of the FRANK L. Thus, the first prong of the
Chandris test is satisfied. With respect to the second
prong of Chandris, as previously noted, it is undisputed
that the FRANK L qualifies as a "vessel in navigation."
Further, as noted by the district court, Baye's connection to
the FRANK L was substantial in duration given that he spent almost
all of his time working on the vessel in the eighteen months
prior to his accident. Thus, the sole question before this court,
as well as the sole question presented below, is whether Baye
has an "employment-related connection" to the FRANK
L that is "substantial in terms of . . . its nature."
Chandris, 515 U.S. at 368-69.
In concluding that Baye is not a
seaman, the district court relied exclusively on the "going
to sea" test articulated in Harbor Tug. The court
found that Baye's connection to the FRANK L was not substantial
in nature because "it did not take him to sea. His work
brought him aboard the barge only after the vessel was moored
or in the process of mooring." This application of the "going
to sea" test has an intuitive appeal, but we do not believe
that the Supreme Court intended to create such a singular rule
for determining seaman status.
First, the Harbor Tug Court
stated that the determination of whether the claimant went to
sea was only "helpful" in determining whether he has
the requisite connection to the vessel.
Second, when read in context, the
"going to sea" passage in Harbor Tug is a shorthand
way of saying that the employee's connection to the vessel regularly
exposes him "'to the perils of the sea.'" Harbor
Tug, 520 U.S at 554-55 (quoting Chandris, 515 U.S.
at 368). In other words, we do not think that the Harbor Tug
Court intended to articulate a new and specific test for seaman
status. As we read Harbor Tug, the Court merely restated
the point it had made in Chandris, when it explained that
[we] eschew the temptation to create
detailed tests to effectuate the congressional purpose, tests
that tend to become ends in and of themselves. The principal
formulations employed by the Courts of Appeals-- "more or
less permanent assignment" or "connection to a vessel
that is substantial in terms of its duration and nature"--are
simply different ways of getting at the same basic point: The
Jones Act remedy is reserved for sea-based maritime employees
whose work regularly exposes them to "the special hazards
and disadvantages to which they who go down to sea in ships are
subjected." Sieracki, 328 U.S., at 104, 66 S.Ct.,
at 882 (Stone, C.J., dissenting).
515 U.S. at 369-70.
For these reasons, the district
court incorrectly concluded that Baye is not a Jones Act seaman
merely because his duties do not literally carry him to sea.(3)
After examining the record evidence
and considering Baye's entire "employment-related connection"
to the FRANK L, we must conclude that Kevin Baye's connection
to the FRANK L is substantial in nature and that Baye is a Jones
Act seaman as a matter of law. First, Baye was permanently assigned
to the FRANK L and, as mentioned above, had spent almost all
of the prior eighteen months on the vessel. Second, Baye's primary
responsibility was to operate the cranes on board a vessel whose
sole purpose is to load and unload cargo vessels.(4)
Third, in the course of his employment, Baye was regularly exposed
to the perils of the sea. For these reasons, we conclude that
Baye was a Jones Act seaman as a matter of law.
For the reasons stated above, the
judgment of the district court is REVERSED and the case is REMANDED
for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED
for further proceedings.
1. 46 U.S.C.
§ 183(a) provides in relevant part:
(a) The liability of the owner of
a vessel, whether American or foreign, . . . shall not, except
in the cases provided for in subsection (b) of this section exceed
the amount or value of the interest of such owner in such vessel,
and her freight then pending.
46 U.S.C. § 183(a) (West 1999).
2. The appellants
argue that it was improper for the district court to consider
Baye's status as a "seaman" because such a determination
is immaterial to whether Tako and Endeavor are entitled to limit
their liability under 46 U.S.C. § 183. This assertion, however,
is contrary to clearly established law. In British Transport
Comm'n v. United States, 354 U.S. 129, 138 (1957), the Supreme
Court held that the district court may resolve all cross-claims
that arise out of the limitation proceeding. SeeBritish Transport,
354 U.S. at 138-39. Further, in Odeco Oil & Gas Co. v.
Bonnette, 74 F.3d 671 (5th Cir. 1996), this court held that
parties seeking contribution and indemnity by way of cross-claims
are claimants for purposes of the Limitation Act. Id.
at 675. Consequently, contrary to the appellants' assertions,
the district court had the authority to determine Baye's status
as a Jones Act "seaman."
3. Baye's duties
do place him on the brown waters of the Mississippi River.
4. Baye may have
performed additional duties in service of the FRANK L. In his
affidavit, Baye states that he not only operated the crane but
also regularly changed cables, changed engine parts, performed
repair welding for different parts of the barge, rebuilt aircans
for the brakes and frictions, adjusted brakes and frictions,
changed air lines, moored and released the barge on a daily basis,
operated deck winches, moved and secured the barge up and down
the side of ships, and cleaned areas of the barge. Baye's evidence
regarding the nature of his additional duties while in the service
of the FRANK L is contradicted by the affidavits of William Kirksey,
Jr., the operations manager of Ryan-Walsh; and Paul J. Delatte,
Sr., the superintendent for Crane Operators. Kirksey and Delatte
suggest that Baye's duties while aboard the FRANK L were limited
to operating her crane. Resolution of any dispute of these additional
duties is not determinative of Baye's status as a seaman because
his duties as a crane operator satisfy the requirements of the