Hertz v. Treasure Chest Casino, L.L.C.

• Decision Date: 25 July 2003
• Docket Number: No. Civ.A. 03-73.,Civ.A. 03-73.
• Citation: 274 F.Supp.2d 795
• Parties: Lloyd W. HERTZ, III v. TREASURE CHEST CASINO, L.L.C., et al.
• Court: U.S. District Court — Eastern District of Louisiana

274 F.Supp.2d 795

Lloyd W. HERTZ, III v. TREASURE CHEST CASINO, L.L.C., et al.

No. Civ.A. 03-73.

United States District Court, E.D. Louisiana.

July 25, 2003.

Ricahrd Anthony Weigand, Weigand & Levenson, New Orleans, LA, for Plainiff.

Pater B. Tompkins, James Melvin Jacobs, Murphy, Rogers & Sloss, New Orleans, LA, for Defendant.

ORDER & REASONS

FALLON, District Judge.

Before the Court are the following motions: (1) motion of the plaintiff Lloyd Hertz ("Hertz") for partial summary judgment on the issue of Jones Act seaman status; and (2) motion of defendants for summary judgment on the basis that the TREASURE CHEST casino is not a vessel in navigation as a matter of law. For the following reasons, the Court DENIES the plaintiffs motion for partial summary judgment and GRANTS the defendants' motion.

I. FACTS:

Plaintiff Hertz was employed as a captain aboard the TREASURE CHEST riverboat casino and on October 1, 2002 was injured in the course and scope of his employment while removing carpet from the deck of the casino. He claims he was injured because he was provided improper tools with which to do his assigned tasks. Plaintiff alleged that at the time of his injury the TREASURE CHEST was a vessel in navigation and he was a member of the crew, entitling him to remedies against his employer and the vessel under the Jones Act, 46 U.S.C.App. § 688, and the general maritime law. Defendant claims the TREASURE CHEST was not a vessel in navigation at the time of the plaintiffs injury, precluding recovery under the Jones Act. Alternatively, the plaintiff argues that he has a cause of action for negligence under the general maritime law. Defendant, however, contests the existence of this Court's admiralty jurisdiction to hear such a dispute. A brief review of the features of the TREASURE CHEST, as well as it history, is necessary to understand the parties' arguments in the present motions.

The TREASURE CHEST has the following physical features: a steel hull, raked bow, bilge pumps, ballast tanks, generator, self-propelled engine, navigational aids, crew quarters, an operative pilot house, steering mechanism, life saving devices, and a navigational crew. It began operations in Lake Pontchartrain in September, 1994. From that point until March 31, 2001, the TREASURE CHEST was required to and did make daily cruises, weather permitting, for 90 minutes out of every three hours of operations. At that time, the TREASURE CHEST was clearly a vessel in navigation, and the members of the crew were seamen under the Jones Act. See Williams v. Treasure Chest Casino, 1998 A.M.C. 1300 (E.D.La. 1998) (finding that plaintiffs had stated a cause of action under the Jones Act and General Maritime Law based on alleged claims of sexual harassment).

However, on April 1, 2001, the Louisiana statute regulating gaming aboard riverboat casinos was amended to provide that with regard to a riverboat casino located in Jefferson Parish "gaming may only be conducted on a riverboat while it is docked and the licensee shall not conduct cruises or excursions." LA.REV.STAT. Ann. § 27:65(c). See also LA.REV.STAT. Ann. §§ 27:65, 66 & 91 (West Supp.2002).

Since April 1, 2001, the TREASURE CHEST has been moored to the floating barge that serves as the dock. One of the TREASURE CHEST's captains testified by deposition that before the amendments the boat was secured by nylon mooring rope and cables attached to winches. Since then, cables have been added that circle a bitt on the barge and on the boat, and the cables are tightened with a ratchet. To remove these cables and ready the ship for cruising, the captain testified that it would be a fairly normal operation similar to that conducted by barges that are rigged for towing. Further, the ship still conducts "man overboard" and fire drills at periodic intervals, as well as periodic firing of the engines. Finally, the captain understands that the management of the casino has no intention of conducting any gambling cruises in the foreseeable future.

The United States Coast Guard issued a Certificate of Inspection to the TREASURE CHEST in July, 2001 requiring it to remain in "continuously-moored operation on Lake Pontchartrain." Nevertheless, the certificate requires that the pilothouse be manned at all times passengers are aboard the casino. The TREASURE CHEST is licensed by the Coast Guard as a passenger vessel and required to have a master, able and ordinary seamen, a chief engineer, and an oiler at all times. She may also have up to 179 other persons in the crew on board the vessel in addition to passengers. Except for the designation that the boat be continuously moored, the Certificate of Inspection is identical to the one issued by the Coast Guard before the legislature amended the riverboat gambling statute.

The TREASURE CHEST's owners argue that vessel status was lost at the moment the statute became effective. Plaintiff maintains that the TREASURE CHEST is still a vessel in navigation because it remains ready to sail at a moment's notice. Plaintiff argues that the amended statute regulates only the activity which can take place on the contrivance, not its capabilities as a vessel. Finally, plaintiff points to two maintenance cruises the TREASURE CHEST conducted on June 4 and 5, 2002 for the purpose of conducting dredging operations beneath the casino as evidence of the casino's navigable capacities. During these times plaintiff was responsible for the operation and navigation. Defendant, however, points out that at the time of these cruises, no gambling occurred, and the passengers were not permitted aboard the structure. Moreover, at the time of his injury the plaintiff was removing carpet not piloting the vessel.

Having discussed the facts of the case and the arguments of the parties, the Court now turns to the merits of the motions.

II. LAW & ANALYSIS

A. Summary Judgment Standard

A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). The court must find "[a] factual dispute ... [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party ... [and a] fact ... [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995) (citing Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S.Ct. 2505 (citations omitted).

B. The Jones Act and Vessel Status

Recovery under the Jones Act is limited to seamen injured aboard a vessel in navigation. See Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 565 (5th Cir.1995). The Fifth Circuit has issued numerous opinions defining the term "vessel in navigation," including one on the issue of floating casinos; i.e., Pavone. Although vessel status is often a fact-intensive question making summary judgment difficult, the parties do not dispute the essential facts of the present case. Rather, what remains is the application of legal principles to those facts.

Defendants rely mainly on the Fifth Circuit's decision in Pavone and argue that the TREASURE CHEST has been withdrawn from navigation or is a work platform. Pavone concerned the claims of two plaintiffs who were injured on the BILOXI BELLE casino in Biloxi, Mississippi and subsequently pursued claims under the Jones Act. The district court granted summary judgment in favor of the defendants concluding the BILOXI BELLE was not a vessel in navigation; the Fifth Circuit affirmed. Id. at 562. In order to properly determine the applicability of Pavone to the case at hand, the Court must consider the physical features of the BILOXI BELLE as set forth in the Fifth Circuit's decision.

The BILOXI BELLE was originally constructed in Morgan City, Louisiana and towed to Corpus Christi, Texas where it served as a floating restaurant and bar. Several years later, the restaurant was re-outfitted as a casino, towed to Biloxi, and renamed the BILOXI BELLE casino. In Biloxi, the structure was secured to the shore by lines tied to sunken steel pylons. Further, shore-side utility lines were connected permanently to the structure. As for features similar to traditional vessels, the BILOXI BELLE had a steel hull, raked bow, bilge pumps, and ballast tanks. As for non-vessel features, the BILOXI BELLE has no engine, captain, navigational aids, crew quarters or lifesaving equipment; the pilot house is purely aesthetic and contains no operative steering mechanism. The evidence indicated that the casino was moved only once from its location due to an impending hurricane.

The Pavone court began its analysis by assuming that the BILOXI BELLE was...