Ketzel v. Mississippi Riverboat Amusement, Ltd., Civ. A. No. 1:93cv546GR.

• Decision Date: 21 September 1994
• Docket Number: Civ. A. No. 1:93cv546GR.
• Citation: 867 F. Supp. 1260
• Parties: Kathleen L. KETZEL, Plaintiff, v. MISSISSIPPI RIVERBOAT AMUSEMENT, LTD., Defendant.
• Court: U.S. District Court — Southern District of Mississippi

867 F. Supp. 1260

Kathleen L. KETZEL, Plaintiff, v. MISSISSIPPI RIVERBOAT AMUSEMENT, LTD., Defendant.

Civ. A. No. 1:93cv546GR.

United States District Court, S.D. Mississippi, S.D.

September 21, 1994.

David A. Hilleren, Hilleren, Bains & LeBlanc, New Orleans, LA, Joseph A. LoCoco, D'Iberville, MS, for plaintiff.

Michael J. McElhaney, Jr., Colingo, Williams, Heidelberg, Steinberger & McElhaney, Pascagoula, MS, for defendant.

MEMORANDUM OPINION

GEX, District Judge.

This cause comes before the Court on the parties' motions for summary judgment in connection with plaintiff Kathleen L. Ketzel's lawsuit against defendant Mississippi Riverboat Casino for injuries and damages under the Jones Act and general Maritime Law arising out of her employment as a cocktail waitress on the allegedly "unseaworthy" Biloxi Belle Casino. The outcome determinative question is whether Ketzel was a "seaman" at the time of her alleged injury, which necessarily requires an inquiry into whether the Biloxi Belle is a "vessel" for purposes of the Jones Act. After due consideration of the evidence of record, the briefs of counsel, the applicable law, and being otherwise fully advised in the premises, the Court finds as follows.

Standard of Review

Summary judgment is designed "to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1; Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted); see Berry v. Armstrong Rubber Co., 780 F.Supp. 1097, 1099 (S.D.Miss.1991), affirmed, 989 F.2d 822 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994). A grant of summary judgment is appropriate when, viewed in the light most favorable to the nonmoving party, "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 judgment as a matter of law." Fed.R.Civ.P. 56(c).

Statement of Facts

The facts of this case are not complicated. It is undisputed that Ketzel worked as a cocktail waitress on the defendant's Biloxi Belle casino at the time of her alleged injury. Ketzel alleges that she received a severe knee injury during the course of her employment when she tripped on a garbage can lid negligently left in her path by the defendant's employees. The defendant concedes that the alleged injury occurred during the course of Ketzel's employment, but disputes her status as a "seaman" or a "crew member," a prerequisite to invoking federal jurisdiction over her claims. As set forth below, the Court's inquiry into this issue requires a close consideration of the facts relevant to the determination whether the Biloxi Belle is a "vessel" under the Jones Act.

Legal Analysis

The issue is one of first impression in this Court. As a threshold matter, to establish a claim under the Jones Act¹, Ketzel must be a "member of a crew" or a "seaman." Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 87, 112 S.Ct. 486, 491-92, 116 L.Ed.2d 405 (1991).² Indeed, "the inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee's precise relation to it." McDermott International, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991). The determination of "seaman" status is a "mixed question of law and fact." Gizoni, 502 U.S. at, ___ - ___ 112 S.Ct. at 491-92; Wilander, 498 U.S. at 356. The inquiry in such cases is whether the established facts meet the statutory standard for invoking federal jurisdiction as determined by an undisputed rule of law. Wilander, 498 U.S. at 356, 111 S.Ct. at 818; see Pullman-Standard v. Swint, 456 U.S. 273, 290 n. 19, 102 S.Ct. 1781, 1791 n. 19, 72 L.Ed.2d 66 (1982) (defining a mixed question).

When the facts underlying seaman status are reasonably in dispute, the issue must be resolved by the trier of fact. See Wilander, 498 U.S. at 342-43, 355-56, 111 S.Ct. at 810-11, 817-18 (issue whether the nature of plaintiff's work in connection with vessel entitled him to seaman status). On the other hand, if "the facts and the law will reasonably support only one conclusion," summary judgment is mandated. Id. at 356, 111 S.Ct. at 818; Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990). Stated differently, summary judgment is proper in Jones Act cases "where the only rational inference to be drawn from the evidence is that the worker is not a seaman." Daniel v. Ergon, Inc., 892 F.2d 403, 407 (5th Cir.1990) (citation and internal quotation omitted).

"The key to seaman status is employment-related connection to a vessel in navigation." Gizoni, 502 U.S. at 88, 112 S.Ct. at 492 (citing Wilander, 498 U.S. at 355, 111 S.Ct. at 818). Although "vessel" is not defined in the Jones Act, see 46 U.S.C. § 688 (1982), "courts have naturally spoken of seamen in terms of ships, vessels, and voyages." See Digiovanni v. Traylor Bros. Inc., 959 F.2d 1119, 1121 (1st Cir.) (en banc), cert. denied, ___ U.S. ___, 113 S.Ct. 87, 121 L.Ed.2d 50 (1992). "The existence of a vessel is a fundamental prerequisite to Jones Act jurisdiction and is at the core of the test for seaman status." Gremillion, 904 F.2d at 292 (citations and internal quotations omitted).

Unfortunately, the term "vessel" has escaped precise definition, which helps to explain why special-use structures such as submersible oil and gas drilling platforms may qualify at times as Jones Act vessels, despite traditional notions in maritime jurisprudence to the contrary. The arguable vagueness of the term "vessel" also has led to serious, though unsuccessful, attempts to secure vessel status for floating planes and helicopters. Not surprisingly, it has been suggested that "three men in a tub would also fit within our definition, and one probably could make a convincing case for Jonah inside the whale."

Id. at 292-93 (citations omitted).

In Gremillion, the disputed issue was whether a "quarterboat barge" was a vessel under the Jones Act. Id. at 293-94. The court applied the following analysis:

As a general principle, where the vessel status of an unconventional craft is unsettled, it is necessary to focus upon the purpose for which the craft is constructed and the business in which it is engaged. The caselaw is heavily skewed in favor of conferring such status upon craft whose primary mission is the transportation of cargo, equipment or passengers over navigable waters. The greater the structure's resemblance to conventional seafaring craft, the greater the odds of securing vessel status.

In light of this bias favoring traditional craft, it is not surprising that we look to whether a given structure maintains or possesses (1) navigational aids, (2) lifeboats and other lifesaving equipment, (3) a raked bow, (4) bilge pumps, (5) crew quarters, and (6) registration with the Coast Guard as a vessel. In addition, the intention of the owner to move the structure on a regular basis, the ability of the submerged structure to be refloated, and the length of time that the structure has remained stationary are also relevant to the inquiry. Structures need not lack all of the above-mentioned attributes to be deemed nonvessels. The greater the degree of attenuation from the attributes of traditional vessels ... the less likely that Jones Act jurisdiction and seaman status will be secured by the claimant.

Nevertheless, exotic craft may qualify as vessels, especially if frequently navigated, or if exposed to the perils associated with maritime service, or if injury occurs during ocean transport. In fact, we have stated that a structure whose purpose or primary business is not navigation or commerce across navigable waters may nonetheless satisfy the Jones Act vessel requirement if, at the time of the worker's injury, the structure was actually engaged in navigation.

Id. at 293 (citations and internal quotations omitted; emphasis added). The Gremillion court also identified three common attributes for "dry docks and floating work platforms" that are deemed "nonvessels" as a matter of law:

(1) The structure is constructed primarily as a work platform;

(2) the structure is moored or otherwise secured at the time of the accident; and

(3) although the platform is capable of movement, and is sometimes moved across navigable waters in the course of normal operations, any transportation function is merely incidental to the platform's primary purpose.

Id. at 293-94 (citations omitted; emphasis added).

The defendant submitted the affidavits of Jim Hasslocher, the owner and majority shareholder of the defendant corporation, and Steven Yates, who "participated in the design and supervised the construction of the steel structure above the floating structure (`hull') of the Biloxi Belle." See Def's. Exhs. A & B. The affidavits indicate that the Biloxi Belle was originally constructed as a floating restaurant and was designed to conform to "the Southern Building Code for land-based restaurants." The structure was thus "designed and constructed without propulsion engines, rudders, and navigational equipment." The Biloxi Belle has never had a captain.

The affidavits further detail that the stern of the Biloxi Belle is "flat-bottomed, not raked." The Biloxi Belle was designed to resemble "an operational conventional ship" and was equipped with a decorative paddlewheel and a pilothouse. The paddlewheel rotates permanently above the water level and is powered by a small motor with water jets spraying outward from positions around the wheel to give the illusion of propulsion. The pilothouse contains only a light switch and a non-functional, antique steering wheel. The Biloxi Belle contains no lifeboats or life-saving equipment, other than "decorative ring buoys" that "were not intended to serve any actual life-saving function." The Biloxi Belle has...