Revised February 23, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MARK ST. ROMAIN and ANGELA
INDUSTRIAL FABRICATION AND
REPAIR SERVICE, INC., ET AL.,
SUPERIOR WELL SERVICE, INC.
Appeal from the United States District
for the Eastern District of Louisiana
February 22, 2000
Before POLITZ, DAVIS, and STEWART, Circuit
POLITZ, Circuit Judge:
Mark St. Romain and his wife Angela appeal
an adverse summary judgment in their Jones Act action against Superior
Well Service Inc. The district court concluded that St. Romain was not
a seaman for purposes of the Jones Act. For the reasons assigned, we affirm.
This action arises out of an accident which
occurred on an offshore platform, owned by Marathon Oil Company and permanently
affixed to the Outer Continental Shelf off the coast of Louisiana. St.
Romain was employed by Superior as a "plug and abandon" (p&a) helper
from 1993 until the date of his accident in 1995. Plug and abandon work
involves the decommissioning of oil wells under offshore platforms. Cement
plugs are inserted into the wells beneath the ocean floor and the casing
pipe is removed. Most of Superior's p&a work is done from fixed platforms.
Other projects, including some of St. Romain's assignments, are performed
partly from liftboats. A liftboat is a support vessel that uses a crane
to pull the casing. The vessel transports Superior's equipment to the platforms,
and provides the Superior crew with a place to eat and sleep. The p&a
team usually remains at the platform until the job is complete. The work
may extend from a few days to several weeks. Occasionally the liftboat
also is used to transport Superior's p&a team to the platform.
On March 4, 1995, St. Romain was assisting
in the removal of casing when a spreader bar used to lift the pipe failed
and a shackle and sling struck his hard hat. St. Romain sought and received
benefits under the Longshore and Harbor Workers' Compensation Act.(1)
He initially sued the manufacturer of the spreader bar, later amending
his complaint to assert a negligence claim against Superior, claiming status
as a seaman under the Jones Act.(2) The
district court granted Superior's motion for summary judgment, concluding
that St. Romain did not qualify as a Jones Act seaman because he did not
establish that he worked aboard an identifiable fleet of vessels. The district
court also granted Superior's motion to strike St. Romain's second affidavit
and the affidavit of his expert witness because they contained inadmissible
legal conclusions and hearsay. The court also denied St. Romain's motion
to strike the affidavit of Superior's president, Terence Hall, for lack
of personal knowledge, concluding that the affidavit was based on Hall's
personal knowledge as president of the company. St. Romain timely appealed.
We review de novo a district court's
grant of summary judgment.(3) The determination
whether an injured worker is a seaman under the Jones Act is a mixed question
of law and fact.(4) As such, it is generally
inappropriate to dispose of a seaman status claim on summary judgment.(5)
Summary judgment is mandated, however, "where the facts and the law will
reasonably support only one conclusion."(6)
"Seaman" is not defined in the Jones Act; that task has been left to the
courts. The Supreme Court announced a two-part test to determine seaman
First . . . an employee's duties must contribute
to the function of the vessel or to the accomplishment of its mission .
. . . Second . . . a seaman must have a connection to a vessel in navigation
(or to an identifiable group of such vessels) that is substantial in terms
of both its duration and its nature.(7)
We previously have defined "fleet" to mean
"an identifiable group of vessels acting together or under one control."(8)
Our review of the record herein leads to the inexorable conclusion that
St. Romain is not a seaman as a matter of law.
It is undisputed that St. Romain was not permanently
assigned to any one vessel in navigation. Rather, he contends that he was
a member of the crews of the several liftboats used in the p&a jobs
performed by Superior, and that these boats constitute an identifiable
fleet of vessels.(9) Thus, the issue before
the district court, and before this court, is whether St. Romain has produced
sufficient evidence to create a genuine fact issue as to whether he had
a substantial connection to a group of vessels acting together under common
ownership or control. We must conclude that he has not done so.
The case at bar involves facts strikingly
similar to those in Hufnagel v. Omega Service Industries, Inc..(10)
In Hufnagel, we denied seaman status to a rigger, employed by an
oilfield service company, injured on a fixed offshore platform while repairing
the platform's pilings. Hufnagel claimed he was a member of the crew of
the liftboat used to assist Omega in its platform repairs and therefore
was entitled to seaman status.(11)
We held that Hufnagel did not qualify as a
seaman because he could not establish a substantial connection to either
a single vessel or to an identifiable fleet of vessels.(12)
Throughout his employment Hufnagel had worked on twenty-six different offshore
platforms owned by thirteen different Omega customers. We concluded that
the support vessels which were used on some of Hufnagel's assignments did
not qualify as a fleet because "[the vessels] were always different, provided
by different customers, and owned and operated by different companies.
They were not subject to common ownership or control."(13)
Similarly, St. Romain did not work aboard
vessels under common ownership or control. During his employment with Superior,
St. Romain had eleven different offshore work assignments. He worked aboard
liftboats owned by nine different companies and chartered by five different
entities. Superior did not own any of the liftboats. Typically, they were
chartered by the oil company that hired Superior to do the p&a work.
On four occasions Superior chartered the liftboats for its customer. The
deposition testimony and the written charter agreements reflect that the
captain of the liftboat, and its owner, had at all times ultimate authority
with respect to the navigation, management, and operation of the vessels.
Consequently, viewing the facts in the light most favorable to St. Romain,
as we are required to do in this summary judgment setting, we must conclude
that they do not establish that the liftboats at issue commonly were controlled
by any one single entity and, thus, there is no genuine issue herein necessitating
a trial.(14) St. Romain is not a seaman.
St. Romain urges us to take an expansive view
of "control" of a vessel, relying heavily on our decision in Bertrand
v. Int'l Mooring & Marine Inc.,(15)wherein
we stated, "[i]n light of the purposes of the Jones Act, we will not allow
employers to deny Jones Act coverage to seamen by arrangements with third
parties regarding the vessel's operation or by the manner in which work
is assigned."(16) St. Romain contends that
control over a group of vessels should not be determined by who owns or
charters the vessels but, instead, should be determined by who supervises
the practical operations aboard the vessels. St. Romain maintains that
because Superior selected the particular liftboat needed to complete the
work, directed the vessel's captain where to position the boat to facilitate
the use of its crane, and Superior employees told the captain when to jack-up
or down, Superior exercised "operational control" over the boats which
should satisfy the common control requirement.
This reliance on Bertrand is misplaced.
Our later decisions clearly reflect that the court in Bertrand was
concerned with denying seaman status to anchorhandlers, traditional maritime
workers, merely because of the contractual arrangements made by their employer.(17)
Our decisions after Bertrand have reaffirmed the essential principle
that to qualify as a seaman an employee must establish an attachment to
a vessel or to an identifiable fleet of vessels.(18)
We are not persuaded by the proposed operational control test. To accept
that position would involve the court in analyzing the day-to-day minutiae
of a liftboat's operations. This we decline to do and, rather, resort to
developed workable standards for determining who qualifies as a seaman
under the Jones Act. In doing so we must decline to depart from these established
St. Romain places great emphasis on his claim
that in all his offshore assignments, whether he worked on the platforms
or on the liftboats, he was regularly exposed to the "perils of the sea"
faced by traditional seamen. We cannot agree. Whether St. Romain faced
perils of the sea is not outcome determinative of seaman status.(19)
We must hold, therefore, that consistent with Hufnagel, St. Romain's
seaman status claim fails as a matter of law and the district court properly
granted summary judgment to Superior.
The district court granted Superior's Motion
to Strike the affidavit of St. Romain's expert, Kenneth A. Kaigler, and
the second affidavit by St. Romain to the extent that they contained inadmissible
legal conclusions or hearsay. Additionally, the court denied St. Romain's
Motion to Strike or Disregard the affidavit of Terence Hall, Superior's
president, for lack of personal knowledge. We review these evidentiary
rulings for an abuse of discretion. Where an affidavit is erroneously excluded,
a reversal of summary judgment is not warranted if the error was harmless.
St. Romain's evidentiary challenges involve
the inclusion or exclusion of certain facts related to the proposed operational
control test. In light of our rejection of that test, we must conclude
that any evidentiary errors, if any errors indeed were committed by the
district court, necessarily were harmless.
The decision appealed is AFFIRMED.
1. 33 U.S.C. § 901
2. 46 U.S.C. § 688(a).
3. Brown v. Forest Oil
Corp., 29 F.3d 966 (5th Cir. 1994).
4. Harbor Tug and Barge
Co. v. Papai, 520 U.S. 548 (1997); Bertrand v. Int'l Mooring &
Marine, Inc., 700 F.2d 240 (5th Cir. 1983).
5. Harbor Tug, 520
U.S. at 554; Buras v. Commercial Testing & Eng'g Co., 736 F.2d
307 (5th Cir. 1984); Bertrand, 700 F.2d at 244.
6. McDermott Int'l,
Inc. v. Wilander, 498 U.S. 337, 356 (1991) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
7. Harbor Tug, 520
U.S. at 554 (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368
(1995)) (citations and internal quotation marks omitted).
8. Barrett v. Chevron,
U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986) (footnote omitted).
9. We note that no liftboat
was being used by Superior on the job when St. Romain's injury occurred.
Marathon's platform was affixed to the Outer Continental Shelf at a point
where the ocean depth was over 400 feet, which is too deep for a liftboat
operation. This fact is not material to our analysis, however, as seaman
status must be determined by examining the claimant's overall employment-related
connection to a vessel in navigation rather than focusing only on the facts
at the time of injury. Chandris, 515 U.S. at 363; Barrett, 781
F.2d at 1075 (citing
Longmire v. Sea Drilling Corp., 610 F.2d 1342
(5th Cir. 1980)).
10. 182 F.3d 340 (5th
11. Id. at 345.
12. 182 F.3d at 347.
14. See e.g., Coats
v. Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993) (denying seaman
status to claimant as a matter of law because the vessels claimant worked
aboard were not under common ownership or control); Bach v. Trident
Steamship Co., Inc., 920 F.2d 322 (5th Cir. 1991) (ships navigated
by compulsory pilot not a fleet merely because each vessel was under pilot's
control at the time he navigated them); Langston v. Schlumberger Offshore
809 F.2d 1192 (5th Cir. 1987) (wireline operator not a
seaman where employee was assigned to fifteen different vessels owned by
15. 700 F.2d 240 (5th
Cir. 1983) (reversing grant of summary judgment denying seaman status to
anchorhandlers where vessels employees worked aboard were all used, but
not owned or chartered by their employer).
16. 700 F.2d at 245.
17. Buras, 736
F.2d at 311 ("Our concern [in Bertrand] was to prevent the denial
of Jones Act seaman status as a matter of law to those claimants who are
engaged in traditional maritime activity on a vessel or vessels comprising
an identifiable fleet in every respect except common control or ownership.").
18. 736 F.2d at 311 ("[W]e
[do not] believe that Bertrand rejected the identifiable or recognizable
fleet requirement established by our prior cases. Rather, Bertrand
must be read in light of the factual situation it involved.") (footnote
omitted); Bach, 920 F.2d at 326 ("Dozens (perhaps hundreds) of seaman
status cases have come before us, but we have never made an exception to
the core requirement that the injured worker show attachment to a vessel
or identifiable fleet of vessels.").
19. Chandris, Inc.
v. Latsis, 515 U.S. 347, 361 (1995) ("Seaman status is not coextensive
with seaman's risks."); Bach, 920 F.2d at 325 (same).