Ellender v. Kiva Const. & Engineering, Inc., 90-3179

• Decision Date: 22 August 1990
• Docket Number: No. 90-3179,90-3179
• Citation: 909 F.2d 803
• Parties: Glenn ELLENDER, Plaintiff-Appellant, v. KIVA CONSTRUCTION & ENGINEERING, INC., et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 803

909 F.2d 803

1992 A.M.C. 1875

Glenn ELLENDER, Plaintiff-Appellant, v. KIVA CONSTRUCTION & ENGINEERING, INC., et al., Defendants-Appellees.

No. 90-3179

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 22, 1990.

Leon A. Aucoin and Thomas J. Eppling, Aucoin, Unland & Eppling, Metairie, La., for plaintiff-appellant.

Esmond Phelps Gay, Christovich & Kearney, New Orleans, La., for defendants-appellees.

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

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Glenn Ellender appeals from a summary judgment which determined as a matter of law that he was not a Jones Act seamen because the construction platform upon which he worked was not a "vessel." According to our precedents, we must affirm.

For several weeks before his accident, Glenn Ellender worked for Kiva Construction & Engineering Inc. (Kiva) as a contract laborer and then as a rigger. On his first assignment, he helped Kiva lay pipelines and perform maintenance work on an existing oil platform in Chandeleur Sound. Although Kiva used its own spud barge, the KC & E # 1, and its 50 ton crane to complete this job, Ellender remained predominantly on board the work platform, entering the barge only to retrieve tools and supplies. Ellender's duties included sand blasting, pipe fitting, pipe threading and painting. After this first job, Ellender returned to Kiva's shipyard, where he cleaned-up after the operation and readied the tools for the next assignment.

One week later, Kiva assigned Ellender to another crew working in Chandeleur Sound. This job involved laying flow lines and constructing a platform containing oil production equipment and tanks to store condensate. For this job, Kiva classified Ellender as a "rigger," although he really functioned as an all-purpose laborer, performing whatever tasks his supervisor instructed him to perform.

Since Kiva was constructing a new 40' by 60' platform, rather than maintaining an old one, Kiva needed to provide the work space for its employees. Furthermore, construction of this surface required Kiva to drive wooden support piles into the ground using a 110 ton crane. Because the KC & E # 1 could not adequately brace this crane, Kiva leased a spud barge, ATHENA 3, from another construction company. Kiva tied three other 30' by 90' general purposes barges to this spud barge and used the four-barge surface as a work station. The three all-purpose barges contained galvanized tanks, pilings, equipment, supplies, and living quarters for the workers. The ATHENA 3 provided the main working platform.

None of these barges were self-propelled. Kiva used tugboats to maneuver the facility into place at the construction site, and then anchored the entire configuration with the spuds on the ATHENA 3. The tug boat and an additional crew boat remained anchored with the barges during the operation. Kiva used the crew boat to The laborers began platform construction by driving the first row of pilings. When the workmen finished the first row, the machine operator retracted the spuds and the tugboat moved the barges several feet to make room for the next row. The tugs also moved the barges longer distances if inclement weather threatened. With the exception of these two instances, the barges remained stationary during the construction project.

retrieve supplies from the shore and to transport crewmembers to land when necessary.

Ellender's only duties on this project involved pile driving, and he performed most of this work from the spud barge. Occasionally, he used equipment or supplies from one of the other barges. For the most part, he hooked up the crane cables to the pilings so that the crane operator could place the pilings in the water and then hammer them into place. Ellender never operated the tugboat, navigated the barges or lifted and lowered the spuds. He did not possess a seaman's license, and Kiva never assigned him permanently to work on any particular barge.

Ellender was injured on June 18, 1988. He had just rigged the leads around a piling, when the crane operator lifted the piling off the barge and the leads slipped. The piling came to rest on a rung of the lead ladder. Ellender climbed the lead ladder to refasten the chains so that the crane operator could move the piling. As Ellender started back down the ladder, the leads shifted and the piling came down on his foot, shattering three of his toes. Ellender continued down the ladder. When he reached the bottom, crewmembers iced the injury, and then placed Ellender aboard the tugboat which took him to a helipad. The Coast Guard met him there and airlifted him to the hospital.

Doctors amputated all three of his toes. Ellender missed three months of work, but he then returned to work at Kiva. Kiva terminated him three weeks later for lack of diligence. However, Ellender has found and maintained other employment despite his injury. Pursuant to the Longshoreman's and Harbor Worker's Compensation Act (LHWCA), Liberty Mutual Insurance Company paid Ellender's medical expenses plus $290 per week from the date of the accident until December 8, 1988. After that, he received a lump sum payment of $27,000.

Ellender initiated this Jones Act suit against Kiva Construction & Engineering Inc., and its insurer, Liberty Mutual Insurance Company, on June 15, 1989. 46 U.S.C. App. Sec. 688. Based upon the depositions of Glenn Ellender and Kiva's President Joseph McDermott, Kiva moved for summary judgment on the ground that the ATHENA 3 was not a "vessel" for Jones Act purposes. The district court agreed, and Ellender appeals that determination.

DISCUSSION

Before Ellender can receive compensation under the Jones Act as a seamen, he must demonstrate:

(1) that he was assigned permanently to a "vessel", which may include special purpose structures not usually employed as a means of transport but designed to float on water; and

(2) that the capacity in which he was employed or the duties which he performed contributed to the function of the vessel.

Waguespack v. Aetna Life & Casualty Co., 795 F.2d 523, 525 (5th Cir.1986), cert. denied 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 163 (1987), quoting Offshore Co. v. Robison, 266 F.2d 769, 777 (5th Cir.1959); Guidry v. South Louisiana Contractors Inc., 614 F.2d 447, 452 (5th Cir.1980). The question of whether a particular person is a seaman is ordinarily a question of fact for the jury. Waguespack, 795 F.2d at 526; 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).

However, summary judgment may be appropriate where "the facts establish [the lack of seamen status] beyond question as a matter of law" and no reasonable evidentiary basis exists to support a jury finding that the injured person is a seaman. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986); Bernard v. Binnings Construction Co. Inc., 741 F.2d 824, 828 (5th Cir.1984); Watkins, 660 F.2d at 606. If, as in this case, the facts underlying summary judgment are undisputed, our task is "to review the facts to determine whether reasonable persons might draw conflicting inferences." Bernard, 741 F.2d at 828. Where only one reasonable inference exists, we must affirm the summary judgment as a matter of law.

In order to qualify as a Jones Act seaman, Ellender must have worked on a "vessel." The Jones Act does not define the term "vessel," and we have repeatedly held that the term is incapable of precise definition. Bernard, 741 F.2d at 829. However, we may rely on the purpose for which the craft was built and the business in which it was engaged to guide our inquiry. Bernard, 741 F.2d at 829; Watkins, 660 F.2d at 607, n. 1. Other factors like the structure's size, its ability to float, its permanent fixation to the shore or the bottom, and its movement or its ability to move across navigable waters are inconclusive. Bernard, 741 F.2d at 829; Cook v. Belden Concrete Products, Inc., 472 F.2d 999, 1000-1001 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973). Further, structures whose primary function is non-navigational or non-transportational may still qualify as vessels, if the structure was involved in navigation at the time of the injury. Bernard, 741 F.2d at 829; Cook, 472 F.2d at 1002.

Based upon these established principles, the Fifth Circuit has routinely held, as a matter of law, that neither a single construction barge nor several barges strapped together to form a floating construction platform constitute "vessels" under the Jones Act. See Waguespack, 795 F.2d at 526. We summarized the rationale behind this decision in Bernard v. Binnings Construction Co., Inc., 741 F.2d at 831:

A review of these cases indicates three factors common to them: (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.

See Daniel v. Ergon, Inc., 892 F.2d 403, 407 (5th Cir.1990). Thus, where a barge was not designed or used to transport passengers, cargo, or equipment from place to place across navigable waters, where the barge required tugboats or other vessels to move it, and where the barge remained virtually stationary during any particular project, the barge would not qualify as a Jones Act vessel. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5th Cir.1990); Ducrepont v. Baton Rouge Marine Enterprises Inc., 877 F.2d 393, 395 (5th Cir.1989) (barge refurbishing craft is a work platform and not a Jones Act vessel); Cook, 472 F.2d at 1000-1001.

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