Ross v. W&T Offshore, Inc.
| Decision Date | 10 December 2018 |
| Docket Number | CIVIL ACTION NO. 17-8689 |
| Parties | Alton ROSS v. W & T OFFSHORE, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
Barrington Roy Neil, Alistair Andrew Adkinson, A.A. Adkinson, Attorney, LLC, New Orleans, LA, for Alton Ross.
George Burton Jurgens, III, Jedd Spencer Malish, King, Krebs & Jurgens, PLLC, New Orleans, LA, for W & T Offshore, Inc.
SECTION: "G"(3)
ORDER AND REASONS
Pending before this Court is Defendant W & T Offshore, Inc.'s ("W & T") "Motion for Partial Summary Judgment."1 In the motion, W & T argues that the alleged accident at issue in the case did not occur on a vessel and Plaintiff Alton Ross ("Plaintiff") is therefore not a Jones Act seaman.2 In opposition, Plaintiff argues that on or around April 30, 2018, Defendant received records showing that Plaintiff's employer classified him as a Jones Act seamen.3 Having considered the motion for partial summary judgment, the memoranda in support, the memorandum in opposition, the record, and the applicable law, the Court will grant the motion.
In the Petition, Plaintiff alleges that he worked as a galley-hand/cook for Bailey's Support Services, Inc. ("Bailey's") while stationed on an oil production platform owned by W & T.4 Plaintiff asserts that on July 21, 2016, when he was working on W&T's Ship Shoal 349-A ("SS 349-A"), he slipped and fell on a wet galley floor.5 Plaintiff alleges that the fall caused several injuries, and the injuries are the result of the negligence of W & T.6
On July 26, 2017, Plaintiff filed suit against W & T in the Civil District Court for the Parish of Orleans, State of Louisiana.7 In the Petition, Plaintiff alleges that SS 349-A is a vessel, and he seeks to recover damages under the Jones Act and general maritime law.8 The Petition also raises claims under Louisiana law.9 On September 6, 2017, W & T removed the case to this Court.10
On October 12, 2017, W & T filed a motion for summary judgment, asserting that Plaintiff's claims were barred under Louisiana's one-year prescriptive period.11 Plaintiff opposed that motion.12 On July 17, 2018, the Court denied that motion, finding that even if Louisiana law applies to this case as W & T contended and Plaintiff contested, the instant suit was timely filed.13
On August 14, 2018, W & T filed the instant motion for partial summary judgment.14 On October 3, 2018, Plaintiff filed an opposition.15 With leave of Court, W & T filed a reply on October 10, 2018.16
In the motion, W & T argues that it is entitled to partial summary judgment on Plaintiff's Jones Act claims and general maritime law claims because the alleged accident did not occur on a vessel.17 First, W & T asserts that Plaintiff is not a Jones Act seaman because the the SS 349-A is not a vessel.18 Next, W & T argues that Plaintiff's unseaworthiness claim brought under general maritime law fails because unseaworthiness claims require a vessel and the SS 349-A is not a vessel.19 Finally, W & T contends that Plaintiff's negligence claim brought under general maritime law fails because Plaintiff cannot show a maritime situs or a connection to traditional maritime activity.20
First, W & T asserts that Plaintiff is not a Jones Act seaman because the SS 349-A is not a vessel as defined under the Jones Act and case precedent.21 W & T alleges that "[t]he foundational question in any Jones Act case is whether the plaintiff qualifies as a Jones Act seaman," and that "the most ‘fundamental prerequisite’ [in a Jones Act case] is whether any of the structures or vehicles worked on by the plaintiff count as vessels."22 W & T then cites § 3 of the Jones Act and the United States Supreme Court case Stewart v. Dutra Constr. Co. ,23 to support the assertion that a "vessel is defined for the purposes of the Jones Act as ‘every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.’ "24 W & T asserts that "[u]nder [section] 3, a ‘vessel’ is any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment."25 W & T further asserts that "a watercraft is not ‘capable of being used’ for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation."26
W & T argues that the SS 349-A is not a vessel because it is "incapable of any movement whatsoever."27 W & T asserts that the SS 349-A is permanently affixed to the seafloor by 8 pilings and has not moved from its location in over two decades.28 W & T further asserts that the "SS 349-A does not float, has no navigational equipment, no means of self-propulsion and cannot be towed."29 Accordingly, W & T argues that the SS 349-A is not a vessel, and "[a]s Plaintiff was not injured aboard a vessel, his claims against W & T for negligence under the Jones Act must fail."30
W & T further contends that the SS 349-A "is an oil and gas production platform that has been permanently affixed to the Outer Contintental Shelf in the Gulf of Mexico for over two decades."31 W & T avers that "[b]ecause Plaintiff's alleged accident occurred on a fixed production platform and not a vessel, Plaintiff's claims against W & T are governed by the Outer Continental Shelf Lands Act which mandates application of Louisiana law."32 Consequently, W & T urges this Court to dismiss Plaintiff's Jones Act and general maritime law claims, but allow Plaintiff's "cause of action against W & T for negligence under Louisiana law" to proceed under the Outer Continental Shelf and Land Act ("OCSLA").33
Similarly, W & T argues that Plaintiff's unseaworthiness claim must fail because the SS 349-A is not a vessel.34 W & T cites Lewis v. Lewis & Clark Marine, Inc. ,35 for the proposition that "[u]nseaworthiness is a claim under general maritime law based on the vessel owner's duty to ensure that the vessel is reasonably fit to be at sea."36 W & T contends that "[b]ecause a claim for unseaworthiness requires the existence of a vessel, and the SS 349-A is not a vessel, Plaintiff's claim for unseaworthiness must fail."37
Last, W & T argues that Plaintiff's negligence claim brought under general maritime law must fail because Plaintiff cannot meet the two requirements for a tort claim in admiralty.38 W & T alleges that "to give rise to a tort claim in admiralty, an incident must have both a maritime situs and a connection to traditional maritime activity."39 W & T asserts that the "situs requirement or ‘location test’ " fails because Plaintiff's alleged injury occurred on a fixed platform, which is not part of navigable waters under maritime law.40 Further, W & T asserts that the connection test fails because "the activity which caused the Plaintiff's injury [does not] bear a significant relationship to traditional maritime commerce."41 W & T avers that the Fifth Circuit approved of a district court's rationale that general maritime law was inapplicable where there was no vessel.42 W & T thus argues that because the SS 349-A is not a vessel, general maritime law does not apply to this case.43 Accordingly, W & T urges the Court to grant summary judgment on all of Plaintiff's claims brought under the Jones Act and general maritime law.44
In opposition, Plaintiff argues that W & T has specific knowledge that Plaintiff is in fact a Jones Act seaman.45 Plaintiff asserts that on or about April 30, 2018, W & T received subpoenaed records from Condon Claims Management ("Condon Claims"), the insurer/claims administrator to Plaintiff's former employer Bailey's.46 Plaintiff alleges that the documents "reveal that Plaintiff was a Jones Act seaman at the time he was injured, due to hours worked on other vessels prior to being assigned to Defendant's offshore platform."47 In support of this argument, Plaintiff presents a document labeled Exhibit C, showing that during his employment with Bailey's Plaintiff worked aboard four vessels, the HOUSTON, CHARLESTON, ST. ELAINE, AND GI 115, which were owned by three different companies, Alliance, Baywater, and LLog.48 Plaintiff contends that W & T filed the instant motion "with full knowledge that the aforementioned records existed."49 Therefore, Plaintiff avers that "the Defendant should not be permitted to rely upon its own misrepresentations in order to obtain summary judgment herein on this vital issue."50
In reply, W & T argues that Plaintiff has not proved that he attained Jones Act seaman status while working on other assignments for Bailey's.51 W & T further asserts that even if Plaintiff obtained Jones Act seaman status while working for Bailey's in prior assignments, this "seaman status" ended when Plaintiff was permanently re-assigned to the SS 349-A.52 Finally, W & T argues that while Plaintiff worked on vessels owned by W & T, Plaintiff never attained status as a Jones Act seaman.53
First, W & T argues that Plaintiff has not proved that he attained seaman status on prior assignments.54 W & T asserts that Exhibit C is inadmissible hearsay.55 W & T asserts that "hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent evidence to oppose a motion for summary judgment."56 Consequently, W & T argues that "the purported factual basis for Plaintiff's seaman status is inadmissible and cannot be used to defeat W & T's motion."57
W & T next argues that "even if admissible, Exhibit C does not provide a factual basis to support Plaintiff's claimed seaman status."58...
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... ... 49 In Hufnagel v. Omega Serv. Ind., Inc. , the plaintiff repaired offshore oil and gas platforms and sometimes ate or slept on vessels ... 10 (5th Cir. 1990) (citing Miles v. Melrose , 882 F.2d 976 (5th Cir. 1989) ); see also Ross v. W & T Offshore, Inc. , No. CV 17-8689, 357 F.Supp.3d 554, 56466, 2018 WL 6492762, at *7 (E.D ... ...