Buras v. Commercial Testing & Engineering Co.

• Decision Date: 16 July 1984
• Docket Number: No. 83-3358,83-3358
• Citation: 736 F.2d 307
• Parties: Clyde BURAS, Plaintiff-Appellant, v. COMMERCIAL TESTING & ENGINEERING COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 307

736 F.2d 307

1985 A.M.C. 1177

Clyde BURAS, Plaintiff-Appellant, v. COMMERCIAL TESTING & ENGINEERING COMPANY, et al Defendants-Appellees.

No. 83-3358.

United States Court of Appeals Fifth Circuit.

July 16, 1984.

Morris Bart, III, Laurence Cohen, New Orleans, for plaintiff-appellant.

Normann & Normann, Russell M. Cornelius, New Orleans, La., for Electro-Coal.

Deutsch, Kerrigan & Stiles, A. Wendel Stout, III, New Orleans, La., for Geo Int'l, CNA & Commercial Testing.

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

Before RANDALL, TATE and WILLIAMS, Circuit Judges.

RANDALL, Circuit Judge:

In this appeal from a grant of summary judgment, we are once again presented with the issue of seaman status under the Jones Act. The district court held that the appellant, Clyde Buras, was not a seaman and granted summary judgment for his employer, appellee Commercial Testing & Engineering Company. For the reasons set forth below, we affirm.

I. Factual and Procedural Background.

Clyde Buras was employed by Commercial Testing as a coal sampler and temperature taker. In the course of his employment, Buras tested coal on various barges, ships, and land-based coal stockpiles, primarily at two fleeting facilities. On November 7, 1981, Buras injured his back while on board a coal-transporting barge. He brought this suit against Commercial Testing under the Jones Act, 46 U.S.C. Sec. 688 (1982), contending that he was a seaman within the meaning of the Act.

After discovery, Commercial Testing moved for summary judgment, alleging that as a matter of law Buras was not a seaman. The district court granted the motion and entered summary judgment against Buras, finding that he was neither permanently assigned to nor did he perform a substantial amount of his work aboard an identifiable fleet of vessels. Alternatively, the district court found that Buras' duties did not contribute to the function of the vessels or to the accomplishment of their mission. This appeal followed.

II. Summary Judgment.

In reviewing the district court's grant of summary judgment, we apply well established principles. Summary judgment is appropriate where the underlying facts are undisputed, and the record reveals no evidence from which reasonable persons might draw conflicting inferences from those facts. See, e.g., Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 280 (5th Cir.1981). We must view the evidence and any inferences to be drawn therefrom in the light most favorable to the party against whom the judgment is sought to determine whether there is any genuine issue as to any material fact and whether the movant is entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56(c); Coulter v. Texaco, Inc., 714 F.2d 467, 468 (5th Cir.1983).

It is likewise well settled that while summary judgment in Jones Act cases is rarely appropriate and that even marginal cases ordinarily should go to the jury, see, e.g., Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir.1983), "it is in some circumstances proper to rule as a matter of law that a worker is not a seaman." Id.; see also 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); Barrios v. Engine Gas & Compressor Services, Inc., 669 F.2d 350, 352 (5th Cir.1982). In the case before us, the parties agree that the relevant facts are not in dispute. There they diverge, however: Commercial Testing asserts that the undisputed facts establish that as a matter of law Buras was not a seaman; whereas Buras contends that there are conflicting inferences to be drawn from the facts, thus precluding summary judgment.

III. Seaman Status.

With respect to coverage, the Jones Act and the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Sec. 901 et seq. (1982), are mutually exclusive. The Jones Act permits recovery for "[a]ny seaman who shall suffer personal injury in the course of his employment," whereas the LHWCA extends to all maritime workers except a master or "a member of a crew of any vessel." The terms "seaman" and "member of a crew" are now used interchangeably. See, e.g., Bouvier v. Krenz, supra, 702 F.2d at 91; Bertrand, supra, 700 F.2d at 243 & n. 7; McDermott, Inc. v. Boudreaux, 679 F.2d 452, 455 (5th Cir.1982). To avail himself of the liberal terms of the Jones Act, Buras must at least demonstrate that a genuine factual issue exists as to whether he was a seaman at the time of his injury; if he was not, his remedies lie within the provisions of the LHWCA. See Longmire v. Sea Drilling Co., 610 F.2d 1342, 1345 (5th Cir.1980).

In Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), we established the test for seaman status under the Jones Act:

[T]here is an evidentiary basis for a Jones Act case to go to the jury: (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 contributed to the function of the vessel or to the accomplishment of its 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.

Id. at 779 (footnote omitted); see Wallace v. Oceaneering International, 727 F.2d 427 (5th Cir.1984); McDermott, Inc. v. Boudreaux, supra, 679 F.2d at 457. Thus, to survive a motion for summary judgment the claimant must demonstrate a factual dispute with regard to the permanency or the substantiality of his employment relationship with a vessel or group of vessels, and that his work contributed to the operation or function of the vessel or to the accomplishment of its mission. See Bertrand, 700 F.2d at 246. ¹ Because we find that in this case Buras has failed to meet either alternative embodied in Robison's first criterion, we find it unnecessary to address the second.

Permanency.

There is no doubt that Buras was not "assigned permanently to a vessel" or vessels. ² We have noted that this requirement has not been given a "wooden application," Brown v. ITT Rayonier, Inc., 497 F.2d 234, 237 (5th Cir.1974), and have characterized the permanency inquiry as being "more frequently an analytical starting point than a self-executing formula." Id. It is clear, however, that to be deemed a Jones Act seaman the claimant must have "more than a transitory connection" with a vessel or group of vessels. Davis v. Hill Engineering, Inc., 549 F.2d 314, 326 (5th Cir.1977). Our focus in this regard is " 'meant to deny seaman's status to those who come aboard a vessel for an isolated piece of work, not to deprive a person whose duties are truly navigational of Jones Act rights merely because he serves aboard a vessel for a relatively short period of time.' " Bertrand, 700 F.2d at 247 (quoting Porche v. Gulf Mississippi Marine Corp., 390 F.Supp. 624, 631 (E.D.La.1975)). Thus, as we stated in Bertrand, "we review the facts in light of factors evincing a vessel relationship that is substantial in point and time and not merely spasmodic." 700 F.2d at 247.

In the instant case, the record reflects that Buras was randomly assigned to a given vessel or land-based stockpile to test the temperature of coal. The testing crew tested between five and fifty barges per day, depending on the number of vessels coming through the fleeting facilities. On the day that Buras was injured, he had already tested the coal on thirteen or fourteen barges. His contact with a given vessel was short in duration and limited to the administration of a temperature test. Buras' connection with the vessels, therefore, cannot be deemed anything but "transitory." See Bertrand, 700 F.2d at 246; Ardoin v. J. Ray McDermott & Co., supra; Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 96, 70 L.Ed.2d 87 (1981); Davis v. Hill Engineering, Inc., supra.

Substantiality.

Buras contends, however, that there is a genuine dispute of fact as to whether he can satisfy the "substantiality" prong of Robison. Buras argues that because he spent seventy-five per cent of his working time on board barges, summary judgment on this issue was improper.

Charting the course of the substantiality requirement has proved to be a difficult task. ³ We have stated that "there is no bright-line test to be applied in determining the frequency and regularity of performance which must be shown to claim [seaman] status," but "incidental and temporary duty" will not suffice. Keener v. Transworld Drilling Co., 468 F.2d 729, 731-32 (5th Cir.1972). It is clear, however, that our analysis must focus on the nature and location of the claimant's employment taken as a whole. Longmire v. Sea Drilling Corp., supra, 610 F.2d at 1347. In Bertrand, we stressed that "no particular factor is determinative of seaman status, but each is indicative." 700 F.2d at 247; see also Bouvier v. Krenz, 702 F.2d at 90.

In applying the substantiality test in cases where the claimant performed tasks on a number of vessels not part of a commonly-owned fleet, we have denied seaman status for the lack of an identifiable fleet. See, e.g., Jones v. Mississippi River Grain Elevator Co., 703 F.2d 108, 109 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir.1981); Guidry v. Continental Oil Co., supra; Fazio v. Lykes Bros. Steamship Co., 567 F.2d 301 (5th Cir.1978); Rotolo v. The Halliburton Co., 317 F.2d 9 (5th Cir.1963); see also Wallace v. Oceaneering International, supra; Bouvier v. Krenz, supra.

These cases, however, must now be assessed in light of Bertrand. There, the plaintiffs were members of an anchorhandling crew, employed by International Mooring & Marine, who were assigned to relocate a...