Abshire v. Seacoast Products, Inc., 80-3941

• Decision Date: 26 February 1982
• Docket Number: No. 80-3941,80-3941
• Citation: 668 F.2d 832
• Parties: Nelson ABSHIRE, Plaintiff-Appellee, v. SEACOAST PRODUCTS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 832

668 F.2d 832

Nelson ABSHIRE, Plaintiff-Appellee, v. SEACOAST PRODUCTS, INC., Defendant-Appellant.

No. 80-3941.

United States Court of Appeals Fifth Circuit.

Feb. 26, 1982.

Robert W. Clements, Lake Charles, La., Frank J. Peragine, Daniel J. Caruso, New Orleans, La., for defendant-appellant.

Cornelius Dupre, II, Robert K. Guillory, Eunice, La., for Abshire.

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

Before WISDOM, SAM D. JOHNSON and WILLIAMS, Circuit Judges.

WISDOM, Circuit Judge:

Again this court must determine a question of seaman status under the Jones Act. We hold that there is sufficient evidence for this case to go to the jury to determine whether the plaintiff, a welder attached to a fleet of vessels, injured while replacing an engine, qualifies as a seaman under the Jones Act. Additionally, on the threshold procedural issue, we hold that the trial judge acted within his discretion in reconsidering an earlier summary judgment by another district judge holding that the plaintiff was not a seaman.

I.

The appellant/defendant, Seacoast Products, Inc., is a fishing company owning and operating twenty-one menhaden fishing vessels. The appellee/plaintiff, Nelson Abshire, is a forty-one year old welder-mechanic. On February 20, 1975, Abshire was injured while replacing the main engines on one of Seacoast's fishing vessels. At the time of the accident and for some years before, Seacoast was Abshire's employer. Abshire sued Seacoast under the Jones Act, 46 U.S.C. § 688, et seq.

Initially, the district judge assigned to hear the case granted Seacoast's motion for partial summary judgment that Abshire was not a Jones Act "seaman" or "a member of the crew" of a vessel. ¹ Abshire amended his complaint to state a claim for negligence under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). Shortly thereafter, the case was reallotted to a newly-appointed district judge. Abshire then moved for reconsideration of the question of seaman status, citing a recent case, Landry v. Amoco Production Co., 5 Cir. 1979, 595 F.2d 1070, in support of his motion. Under Fed.R.Civ.P. § 54(b), the second judge vacated the partial summary judgment of the first judge. He then granted Abshire's motion for a jury trial on the issue of Jones Act "seaman" status.

The district court conducted a bifurcated trial on the merits, presenting first to the jury the issue of seaman status. Each party moved for a directed verdict at the close of all the evidence. The court denied the motions and submitted the issue to the jury. In response to a special interrogatory, the jury answered that Abshire was a seaman or a member of a crew of a vessel or of a fleet of vessels at the time of the accident. The judge then conducted a trial on the issue of liability and damages. The jury awarded Abshire $366,000 and found that Seacoast and Abshire were negligent, in the proportions of 60 percent and 40 percent, respectively. Additionally, a judgment was rendered in favor of the intervenors, two insurance companies, which had paid Abshire compensation under the Longshoremen's and Harbor Workers' Compensation Act.

Seacoast filed motions for judgment notwithstanding the verdict and, alternatively, for a new trial on the issue of seaman status. The district court denied these motions. Seacoast appeals the district court's denial of these motions, as well as its earlier denial of Seacoast's motion for directed verdict. Additionally, the appellant contends that the district judge erred when he vacated the earlier partial summary judgment by another district judge on seaman status, after the case was reallotted to him.

II.

Both issues for review in this case revolve around seaman status under the Jones Act, 46 U.S.C. § 688, et seq. The Jones Act provides:

Any seaman who shall suffer personal injuries in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury....

Offshore Co. v. Robison, 5 Cir. 1959, 266 F.2d 769, established in the Fifth Circuit the test for seaman status under the Jones Act. In Robison we held that there was an evidentiary basis for a finding that a workman was a seaman:

(1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of the mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.

266 F.2d 769, 779. In Braniff v. Jackson Avenue-Gretna Ferry, Inc., 5 Cir. 1960, 280 F.2d 523, we extended the assignment to a vessel to the assignment to "a fleet of vessels".

The Supreme Court had earlier established the principle that seaman status is basically a question of fact. Texas Co. v. Gianfala, 5 Cir. 1955, 222 F.2d 382, rev'd per curiam, 1955, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775. This court has held, however, that the Supreme Court in Gianfala and other cases did not intend to strip the judge of his authority to direct a verdict or grant summary judgment, if there is no genuine issue of material fact to be submitted to the jury. Texas Co. v. Savoie, 5 Cir. 1957, 240 F.2d 674. See also Longmire v. Sea Drilling Co., 5 Cir. 1980, 610 F.2d 1342; Holland v. Allied Structural Steel Co., Inc., 5 Cir. 1976, 539 F.2d 476. Thus, although seaman status is an issue of fact, when there are no facts in dispute, a count may rule on the issue as a matter of law. If there is no evidence supporting the requisites set out in Robison, the court may hold as a matter of law that the claimant is not a seaman. Thibodeaux v. J. Ray McDermott & Co., 5 Cir. 1960, 276 F.2d 42. Conversely, if the Robison requisites are met and there is no dispute over these factors, the court may grant a summary judgment or directed verdict declaring as a matter of law that the plaintiff is a seaman. Producers Drilling Co. v. Gray, 5 Cir. 1966, 361 F.2d 432. See Fallon, The Test of Seaman Status, 55 Tul.L.Rev. 1018, at 1021-22.

III.

This is a close case. At the trial, the plaintiff submitted evidence showing that he was a seaman for purposes of the Jones Act. He showed that he was employed by the Marine Division of Seacoast, one of its three divisions; that he was permanently or indefinitely attached to a vessel or a specified fleet of vessels operating out of Louisiana and Mississippi ports; that he did 90-99 percent of his work aboard vessels and always worked on a vessel or fleet of vessels that was in navigation; and that he always contributed to the maintenance and mission of vessels while at sea or at anchor. During the fishing season he operated out of Cameron and Intracoastal City, both ports in Louisiana.

According to the plaintiff, during the off-season the ships were brought into the Intracoastal City port, near Abbeville, Louisiana, and temporarily stood at anchor awaiting future trips during which time they underwent repairs and maintenance. At no time were the ships out of navigation, permanently attached to the shore, in dry dock, or converted to any use other than as fishing vessels. Abshire was injured while making repairs to the MV ACADIA. A five-year employee of Seacoast Products, Inc., James Landry, testified that the MV ACADIA was floating, was not in dry dock, was not sunk, was not permanently attached to the shore, and had driven up under its own power. The vessels of Seacoast Products were never out of "commission" and were always "commissioned" by the Coast Guard as navigable vessels.

The plaintiff's title was that of marine welder and mechanic. At no time did he ever perform any repairs or maintenance to the wharfs, docks, aprons, catch receiving areas, or to the processing plant. He was totally and completely attached to the Marine Division and spent his entire working time aboard ships, except for those rare occasions where he was rigging or making preparation for work to be performed aboard vessels. His work was not temporary or transitory in nature and his employer kept careful records to show to which ship he was attached while he was performing his duties. He would usually spend many days and on some occasions several weeks at a time on a particular vessel. He worked side by side with the engineers and other seamen who were assigned to the MV ACADIA on a year-round basis. On some occasions, he put to sea to test the success of his repairs and his maintenance work and often had to move the boats from one dock to another involving a 30 to 40 minutes boat ride. During this time he aided in navigation and operation of the vessel at sea, performing the customary duties of an engineer, mate, or even captain.

The defendant presented evidence which directly contradicts the plaintiff's contentions. The defendant showed that the menhaden fishing season runs from mid-April to mid-October, and that off-season, the fishing vessels were generally overhauled at Seacoast's marine maintenance department located in Intracoastal City. The vessels had no captains or crews during the off-season; they were simply tied up at dock awaiting repairs, overhaul, or outfitting as the case may be, in preparation for the next fishing season.

The defendant insists that Abshire was never employed to work on any vessel while fishing operations were underway and that his work with Seacoast was seasonal. The defendant concludes that Abshire was a shore-based maintenance employee. He never went to sea; he returned to his home every evening after work; and he usually ate his lunch in the Seacoast office located on land. Abshire held no type of seaman's papers; his contact with vessels under way...