Bernard v. Binnings Const. Co., Inc.

• Citation: 741 F.2d 824
• Decision Date: 17 September 1984
• Docket Number: No. 84-3018,84-3018
• Parties: Robert BERNARD, Plaintiff-Appellant, v. BINNINGS CONSTRUCTION CO., INC., Defendant-Appellee. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 824

741 F.2d 824

1985 A.M.C. 784

Robert BERNARD, Plaintiff-Appellant, v. BINNINGS CONSTRUCTION CO., INC., Defendant-Appellee.

No. 84-3018

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 17, 1984.

Robert B. Schambach, Metairie, La., for plaintiff-appellant.

Henderson, Hanemann & Morris, Carlos E. Lazarus, Jr., Houma, La., for defendant-appellee.

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

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

This appeal presents two questions that have been frequently litigated in this Circuit: (1) what constitutes a "vessel" for Jones Act purposes and (2) under what circumstances can the issue of a structure's status as a Jones Act vessel be removed from the trier of fact and decided as a matter of law? Robert Bernard (Bernard) sued his employer, Binnings Construction Company, Inc. (Binnings), under the Jones Act, 46 U.S.C. Sec. 688, for injuries to his back allegedly sustained while Bernard was engaged in pile driving activities along the New Basin Canal near Lake Pontchartrain, Louisiana. At the time of the accident, Bernard was working from a small raft or "work punt" stationed alongside a piling that was being driven near the shore of the canal. The district court granted summary judgment dismissing Bernard's suit on the ground that Bernard is not a Jones Act seaman, finding as a matter of law that the work punt upon which Bernard was working at the time of his injuries is not a vessel. The sole issue raised in this appeal is whether the district court erred in concluding that, as a matter of law, the work punt is not a Jones Act vessel. Finding no error in the district court's conclusion, we affirm.

I. Factual Background.

The underlying facts are not in dispute. ¹ At the time of Bernard's injuries, Binnings was engaged in driving "sheet pilings" ² for a condominium project located on the New Basin Canal. The New Basin Canal is a small canal used primarily by recreational craft and is not large enough for commercial vessels. Bernard's job consisted of guiding sheet pilings into place as they were lowered into position by men working from the shore. Bernard was sometimes required to break cement from around existing pilings in order to clear the way for new sheet pilings, a task he accomplished by swinging a flat-headed maul. He performed his duties from the water side of the pilings, while standing on a small raft or work punt. ³ Bernard maneuvered himself into the proper position to accomplish his work by paddling the work punt around the pilings. ⁴ At the time of his injuries, Bernard had been employed in this capacity for approximately three weeks and worked exclusively on the work punt during that period. ⁵

The work punt is a flat, iron platform measuring sixteen feet long by four feet wide, square at both ends, with a tank at each end and in the middle for buoyancy. It is eighteen inches deep and has no deck or crew quarters, no navigational lights and no means of self-propulsion other than the paddle that Bernard kept on board. The parties have stipulated that " '[t]he work punt' was used solely as a small platform from which to break the cement and guide the sheet pilings." (Statement of Uncontested Material Facts No. 11).

Bernard injured his back when he fell while swinging a maul to clear cement from around an old piling. At the time of the fall, he was standing with one foot on the work punt and one foot on a brace connecting two pilings to which he was "tied." ⁶

II. Contentions of the Parties.

Binnings moved for summary judgment on these undisputed facts, claiming that Bernard was not a seaman at the time of his injuries. Binnings' position is premised on the proposition that, as a matter of law, the work punt is not a Jones Act vessel. The district court granted the motion for summary judgment and dismissed the case. ⁷

On appeal, Bernard relies on the familiar rule that Jones Act seaman status is generally determined by the trier of fact and that even marginal Jones Act claims should be submitted to the jury. Binnings, on the other hand, argues that the work punt's primary function is to provide a work platform and that it therefore falls within that class of structures, analogous to floating dry docks, that we have held are not vessels as a matter of law.

III. The Applicable Law.

A. Is Summary Judgment Available on Seaman Status?

The benefits of the Jones Act ⁸ are available only if the claimant qualifies as a seaman. The burden of establishing seaman status is, of course, on the party claiming the benefits to be derived therefrom. See, e.g., Billings v. Chevron, U.S.A., Inc., 618 F.2d 1108, 1109 (5th Cir.1980) ("In order to establish Jones Act jurisdiction, plaintiff must show that at the time of his injury he was a seaman on a vessel ...."). Although the Jones Act itself does not define the term seaman, the test of seaman status is firmly established by our decisions. Although the test has been phrased with slight variations from case to case, ⁹ it is clear that, in order to qualify for coverage under the Jones Act, a worker claiming seaman status must satisfy the following criteria:

(1) he must have a more or less permanent connection with (2) a vessel in navigation and (3) the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission or its operation or welfare in terms of its maintenance during its movement or during anchorage for its future trips.

Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 352 (5th Cir.1982). See also Watkins v. Pentzien, Inc., 660 F.2d 604, 606 (5th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 467 (1982).

Seaman status is ordinarily a question for the trier of fact. Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1345 (5th Cir.1980). ¹⁰ As we said in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959):

Even where the facts are largely undisputed, the question at issue [of seaman status] is not solely a question of law when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts.

Id. at 780. Therefore, we have long held that the question of seaman status should only be removed from the trier of fact (by summary judgment or directed verdict) in rare circumstances and that even marginal Jones Act claims should be submitted to the jury. See, e.g., Leonard v. Exxon Corp., 581 F.2d 522, 524 (5th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 397 (1979) ("[S]ubmission of Jones Act claims to a jury requires a very low evidentiary threshold; even marginal claims are properly left for jury determination.").

It is equally clear from our decisions, however, that the concern of Robison and its progeny, that seaman claims should ordinarily be decided by the trier of fact, does not automatically preclude summary judgment on the issue of Jones Act jurisdiction. See, e.g., Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 46 (5th Cir.1960) (Robison does not "perforce make every case [of seaman status] one of fact for jury decision."). ¹¹ Summary judgment is proper on the question of seaman status where the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences on any of the elements of the seaman test. Ardoin v. J. Ray McDermott & Co., 641 F.2d at 280; Stanley v. Guy Scroggins Construction Co., 297 F.2d 374, 376 (5th Cir.1961). In other words, summary judgment on seaman status is proper "where the only rational inference to be drawn from the evidence is that the worker is not a seaman." Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir.1979). See also Owens v. Diamond M Drilling Co., 487 F.2d 74, 76 (5th Cir.1973). ¹² Where the facts upon which summary judgment on seaman status is based are, as here, undisputed, our job is to "review them to determine whether reasonable persons might draw conflicting inferences." Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240, 244 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984).

B. What is a Jones Act Vessel?

The existence of a vessel, as a fundamental prerequisite to Jones Act jurisdiction, is central to the test of seaman status. The term vessel has generally been defined broadly ¹³ and, in its traditional sense, refers to structures designed or utilized for "transportation of passengers, cargo or equipment from place to place across navigable waters." Cook v. Belden Concrete Products, Inc., 472 F.2d 999, 1002 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973). See also A. Sann, 1B Benedict on Admiralty Sec. 11a (7th ed. 1983) ("structure which carries cargo or passengers across the water"). We have been careful to note, however, that the term vessel is not capable of precise definition. ¹⁴ We have, for example, upheld determinations that a variety of special purpose structures, far removed from the conventional notion of ships and seagoing barges, are Jones Act vessels. ¹⁵ In evaluating a structure's status, we consider "the purpose for which the craft is constructed and the business in which it is engaged." Blanchard v. Engine & Gas Compressor Services Inc., 575 F.2d 1140, 1142 (5th Cir.1978) (citing The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903)). See also Hicks v. Ocean Drilling & Exploration, 512 F.2d at 817.

We note at the outset that the size of the structure, ¹⁶ its ability to float, ¹⁷ the permanence of its fixation to the shore or bottom, ¹⁸ and the fact of its movement or its capability of movement across navigable waters ¹⁹ are not conclusive of vessel status.

We note also that a structure whose purpose or primary business is not navigation or commerce...