Daniel v. Ergon, Inc., 88-4611

• Decision Date: 10 January 1990
• Docket Number: No. 88-4611,88-4611
• Citation: 892 F.2d 403
• Parties: John DANIEL, Plaintiff-Appellee, and National Union Fire Insurance Co. of Pittsburgh, Pa., Intervenor-Appellee, v. ERGON, INC., Magnolia Marine Transport Company, Ergon Refining, Inc., and Mississippi Marine Transport Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 403

892 F.2d 403

1990 A.M.C. 2638

John DANIEL, Plaintiff-Appellee and National Union Fire Insurance Co. of Pittsburgh, Pa Intervenor-Appellee, v. ERGON, INC., Magnolia Marine Transport Company, Ergon Refining, Inc., and Mississippi Marine Transport Company, Defendants-Appellants.

No. 88-4611.

United States Court of Appeals Fifth Circuit.

Jan. 10, 1990.

Rehearing and Rehearing En Banc Denied Feb. 21, 1990.

William Beanland, Wheeless, Beanland, Shappley and Bailess, Vicksburg, Miss., for defendants-appellants.

Paul S. Minor, Judy M. Guice, Minor & Benton, Biloxi, Miss., John L. Walker, Walker & Walker, Jackson, Miss., for plaintiff-appellee.

James M. Anderson, William C. Martin, Markow, Walker, Reeves & Anderson, Jackson, Miss., for intervenor-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before KING and DUHE, Circuit Judges, and BIGGERS, District Judge. ^*

KING, Circuit Judge:

Plaintiff-appellee brought this action against four defendants for personal injuries sustained in a barge explosion. The jury found in favor of the plaintiff on all his claims against all defendants. We reverse as to the plaintiff's Jones Act and unseaworthiness claims against Ergon Refining Incorporated but affirm as to the remainder of the judgment.

I.

On March 5, 1986, plaintiff-appellee, John Daniel (Daniel), was severely injured in an explosion while gas freeing a tank barge (the MM-16) owned by Mississippi Marine Transport Company (Mississippi Marine) and operated by Magnolia Marine Transport Company (Magnolia Marine). ¹ Plaintiff was employed by Ergon Refining Incorporated (Ergon Refining). Ergon, Incorporated (Ergon, Inc.) is the parent company of Ergon Refining, Magnolia Marine and Mississippi Marine. ²

On the day of the explosion, the MM-16 was moored outboard of the MM-30, another barge having its cargo discharged. The MM-30, in turn, was moored outboard of the E-78. The E-78, owned by Ergon, Inc. and operated by Ergon Refining, was a floating barge cleaning and stripping platform used to strip cargo from barges and gas free their tanks. It had a raked bow but no propulsion power, crew quarters or navigation lights. Ingress and egress were provided by a steel catwalk and it was moored to steel pilings along shore. The E-78 was not used to transport cargo and was never moved to job sites. Rather, it was stationary and had not moved since its placement in 1979 (other than to rise and fall with the movements of the Mississippi River). Daniel, his supervisor, Jerry Baugher (Baugher), and two other employees worked off the E-78 stripping and cleaning barges.

On February 28, 1986, the MM-16 was brought in for cleaning by Ergon Refining and was to be gas freed before it was taken to Greenville, Mississippi for repairs. The MM-16 contained highly explosive light crude oil. On March 3, 1986, Daniel and his coworkers began the stripping and cleaning operation. By March 5, the crew had stripped the cargo tanks, but product was left on the walls. At first, butterworthing was employed to clear the cargo tank walls. ³ However, Baugher called Gene Neal who, acting on behalf of Magnolia Marine and Mississippi Marine, authorized the use of steam because butterworthing would leave water residue and the vessel owners were "in a hurry." The evidence at trial established that steam is hotter than butterworthing and creates a mist of static electricity charged clouds and volatile hydrocarbon vapors. Thus, it is far less safe than butterworthing--particularly in an atmosphere with an already high explosive level such as that of the MM-16. ⁴ However, its use was authorized in this instance and was also permitted by the E-78's operations manual.

On the morning of March 5, steaming commenced in the number four starboard cargo tank of the MM-16. The crew broke for lunch around noon. Upon their return, the crew began steaming the number three tank. While Daniel, Baugher and another employee were meeting on the MM-30, the MM-16 exploded. The explosion was so powerful that the MM-16 literally split in half. Two other crew members on board the MM-30 jumped into the water. Daniel was injured but had reached a place of relative safety away from the flames. Then Daniel heard another crew member, Willie England (England), calling for help because he had suffered a broken leg and could not escape. Daniel reentered the area of danger and rescued England--suffering further injuries. ⁵

Daniel filed this action against Ergon Refining, Ergon, Inc., Mississippi Marine and Magnolia Marine raising claims under the Jones Act, general maritime law and section 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(B). Upon consent of the parties, the case was referred to a United States Magistrate pursuant to 28 U.S.C. § 636(c). Defendants' motion for summary judgment was denied. The court also denied the defendants' motion for directed verdict. At the defendants' request, the issues presented to the jury were bifurcated by first submitting the Jones Act status issues. ⁶ By special interrogatory, the jury concluded that the E-78 was a vessel and Daniel a seaman under the Jones Act. After closing arguments and instructions on the remaining issues, the jury, by special interrogatories, found all defendants negligent and the E-78 and MM-16 unseaworthy. Defendants' motion for judgment notwithstanding the verdict and for new trial was denied, and they have timely appealed to this court.

II.

Defendants first contend that the magistrate erred in failing to hold that Daniel did not have Jones Act status with respect to his employer, Ergon Refining, on defendants' motions for summary judgment and directed verdict. Specifically, defendants alternatively maintain that (1) Daniel was covered by the LHWCA as a barge cleaner and, therefore, could not recover under the Jones Act, or (2) the E-78 was not a vessel and Daniel was not assigned to a fleet of vessels and, thus, Jones Act status was absent. We address the second of these contentions, finding it unnecessary to consider the first. ⁷

Seaman status is ordinarily a question for the trier of fact and even where facts are largely undisputed, the jury's role should not be lightly short-circuited. Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 827 (5th Cir.1984). Thus, the issue of seaman status "should only be removed from the trier of fact (by summary judgment or directed verdict) in rare circumstances ... and even marginal Jones Act claims should be submitted to the jury." Id. However, where the "only rational inference to be drawn from the evidence is that the worker is not a seaman," summary judgment is proper. Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir.1979). Moreover, where there is a "complete absence of probative facts" to support the inference of seaman status, directed verdict is proper. See Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir.1989).

The existence of a vessel is a "fundamental prerequisite to Jones Act jurisdiction" and is at the core of the test for seaman status. Bernard, 741 F.2d at 828. The touchtones are the "purpose for which the craft is constructed and the business in which it is engaged." Blanchard v. Engine & Gas Compressor Serv., Inc., 575 F.2d 1140, 1142 (5th Cir.1978) (citing The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 19, 48 L.Ed. 73 (1903)). In numerous cases we have been called upon to determine the existence of a vessel. From these cases we have discerned three factors common to floating platforms that are not considered vessels:

(1) The structures involved were constructed and used primarily as work platforms;

(2) they were moored or otherwise secured at the time of the accident; and

(3) although they were capable of movement and were sometimes moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose of serving as work platforms.

Bernard, 741 F.2d at 831. Recently, we determined that a structure could be considered a non-vessel even though one of the Bernard factors was absent. Ducrepont v. Baton Rouge Marine Enter., Inc., 877 F.2d 393, 395 (5th Cir.1989). ⁸

The structure at issue here was a floating barge cleaning and stripping platform (the E-78) utilized to strip cargo from barges and gas free their cargo tanks. ⁹ The E-78 was moored to steel pilings along shore. It had no crew quarters, propulsion power or navigation lights but did have a raked bow. Ingress and egress were provided by a steel catwalk. Electrical lines, washwater lines, slop lines, discharge lines and steam and oil transfer lines used in the gas freeing process ran from the E-78 to shore. It would have taken a day or more to disconnect the E-78 from its location. Significantly, the E-78 was never utilized as a moving transportation unit and, in fact, its only movement since 1979 was its adjustment to the up and down movements of the Mississippi River.

We find the E-78 floating barge cleaning and stripping platform essentially identical to the cleaning barge held not to be a vessel in Ducrepont. The structure in Ducrepont was originally designed as a cargo barge but functioned as a stationary work platform for repairing and cleaning operations. 877 F.2d at 394. The barge had no means of self-propulsion and no navigation lights. It was generally moored to the shore by wires but was occasionally tugged a short distance from shore due to the level of the water. Id. at 394-95. The craft was never inspected by the Coast Guard. The Ducrepont court affirmed the district court's grant of summary judgment and held that the cargo barge functioned "primarily as a work platform" and any transportation function it performed was "merely incidental" to its primary function as a non-vessel work platform. Id. at 395.

The E-78 is essentially indistinguishable from the work platform in Ducrepont. The...