Brunet v. Boh Bros. Const. Co., Inc.

• Decision Date: 19 September 1983
• Docket Number: No. 83-3120,83-3120
• Citation: 715 F.2d 196
• Parties: Leon J. BRUNET, Jr., Plaintiff-Appellant, v. BOH BROTHERS CONSTRUCTION CO., INC., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 196

715 F.2d 196

Leon J. BRUNET, Jr., Plaintiff-Appellant, v. BOH BROTHERS CONSTRUCTION CO., INC., Defendant-Appellee.

No. 83-3120

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1983.

Joshua A. Tilton, Baton Rouge, La., Kevin A. Galatas, New Orleans, La., for plaintiff-appellant.

Bienvenu, Foster Ryan & O'Bannon, H.F. Foster, III, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Leon Brunet sued his employer Boh Brothers Construction Co. under the Jones Act and general maritime law seeking damages for injuries sustained aboard a pile-driving barge. The district court granted summary judgment for Boh Brothers on the ground that the barge was not a Jones Act vessel. Brunet appeals. Finding that the court erred in holding as a matter of law that the barge was not a vessel, we reverse and remand.

Brunet's accident occurred aboard a pile-driving barge known as the Barge 4000 Ringer. The barge consisted of several interlocking flexi-float platforms and carried a 150 ton crane that was being used to drive pilings into marshland near Galliano, Louisiana. The barge had been moved to this jobsite by tugboats and had been so moved within the Gulf region four times during the six months preceding the accident. At the time of the accident, the barge was moored by cables running from deck engines to pilings driven into the marsh. It was not self-propelled but could move short distances when the deck engines pulled the cables. The barge had no crew quarters but did have a shack that the workmen used for storing tools, avoiding inclement weather, and eating an occasional meal. Brunet and his fellow employees were expected to clean and repair the barge and to assist in the preparation of its movement to another jobsite.

In holding that this barge was not a vessel as a matter of law, the district court relied primarily on Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.1973) and its progeny. Cook was injured on a floating construction platform moored in navigable waters and used to fabricate concrete barges. Rejecting his contention that the platform was a vessel because it was capable of limited movement in navigable waters, the court held that the determinative question of a craft's status was not the permanence of fixation but "the purpose for which the craft was constructed and the business in which it is engaged." Id. at 1001 ( quoting The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903)). The construction platform was found to not be a vessel because "it was not designed for transportation of passengers, cargo, or equipment from place to place across navigable waters." Id. at 1002. From Cook, we reasoned in Leonard v. Exxon Corp., 581 F.2d 522 (5th Cir.1978) and Watkins v. Pentzien, Inc., 660 F.2d 604 (5th Cir.1981), that pipeline construction platforms were not vessels. The district court here analogized this case to Cook, Leonard, and Watkins, holding that "[t]he flexi-float platform was designed primarily for and engaged in pile-driving activity, not transportation in commerce of cargo, equipment and passengers across navigable waters."

We hold that the Cook line of cases does not control here. As the Leonard court observed, "Cook and now the instant case deviate from the general practice of permitting Jones Act issues to be submitted to the jury, and accordingly should be applied restrictively." 581 F.2d at 524. That observation flowed from the oft-repeated admonition in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959) that

[a]ttempts to fix unvarying meanings [having] a firm legal significance to such terms as "seaman," "vessel," "member[s] of the crew," must come to grief on the facts. These terms have such a wide range of meaning under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case.

Id. at 779. Central to the Cook line was the analogy of the barges to dry docks used for shipbuilding or to platforms used for pipeline construction. The Barge 4000 Ringer, however, lacks the Cook similarity to dry docks or construction platforms. The barge by necessity is designed to transport a pile-driving crane across navigable waters to jobsites that cannot be reached by land-based pile-drivers. Only an expansive reading of Cook could cover this barge, yet Cook must be read narrowly. The district court erred in applying it here.

The district court found, and Boh Brothers now argues, that transportation of the pile-driving crane from one jobsite to another is "only incidental...