Leonard v. Exxon Corp., s. 76-2109

• Decision Date: 06 October 1978
• Docket Number: Nos. 76-2109,76-2971,s. 76-2109
• Citation: 581 F.2d 522
• Parties: Wesley J. LEONARD, Plaintiff-Appellant, v. EXXON CORPORATION and/or Nichols Construction Corporation, and Fireman's Fund Insurance Company, Defendants-Appellees. Wesley J. LEONARD, Plaintiff-Appellant, v. EXXON CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 522

581 F.2d 522

Wesley J. LEONARD, Plaintiff-Appellant, v. EXXON CORPORATION and/or Nichols Construction Corporation, and Fireman's Fund Insurance Company,

Defendants-Appellees.

Wesley J. LEONARD, Plaintiff-Appellant, v. EXXON CORPORATION et al., Defendants-Appellees.

Nos. 76-2109, 76-2971.

United States Court of Appeals Fifth Circuit.

Oct. 6, 1978.

Donald G. Cave, James C. Dixon, Baton Rouge, La., for plaintiff-appellant.

Gene S. Palmisano, Bernard J. Caillouet, John F. Reid, New Orleans, La., for Exxon Corp. in No. 76-2109.

Gene S. Palmisano, Bernard J. Caillouet, Ivan D. Warner, III, Richard A. Chopin, New Orleans, La., for Exxon Corp. in No. 76-2971.

Boris F. Navratil, Baton Rouge, La., for Nichols Const. Co. et al.

Appeals from the United States District Court for the Middle District of Louisiana.

Before GEWIN, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

On August 26, 1974, Wesley Leonard was injured while working on a floating construction platform moored to the bank of the Mississippi River near Baton Rouge, Louisiana. Suit was filed alleging three theories of recovery: the Jones Act, 46 U.S.C. § 688 (1976); unseaworthiness of the platform; and maritime tort. Named as defendants were Nichols Construction Company, Leonard's employer, Fireman's Fund, Nichols' insurer, and Exxon Corporation. Determining that the construction platform was not a vessel, the court below granted summary judgment against Leonard on the Jones Act claim. With regard to plaintiff's remaining claims, judgment was entered for defendants following trial by the court.

In this appeal, Leonard asserts that the trial court erroneously granted summary judgment, ruling that the platform was not a vessel, and further that the remaining claims should have been tried by a jury. Finding no error, we affirm.

On numerous occasions this court has struggled with the problem raised by Leonard's first contention what is a vessel? As Judge Wisdom succinctly pointed out, there may be no precise answer:

Attempts to fix unvarying meanings have a firm legal significance to such terms as 'seaman,' 'vessel,' 'member(s) of a crew,' must come to grief on the facts. These terms have such a wide range of meaning under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case.

Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir. 1959). Thus has evolved the general rule in this circuit that such issues are sent to the jury:

(1) (I)f 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 or the duties which he performed 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.

266 F.2d at 779. Because of the policy of providing an expansive remedy for seamen, submission of Jones Act claims to a jury requires a very low evidentiary threshold; even marginal claims are properly left for jury determination. Barrios v. Louisiana Construction Materials Company, 465 F.2d 1157, 1162 (5th Cir. 1972).

With this general approach in mind, we consider the structure on which Leonard was injured. The platform consisted of four flat-deck barges. These barges were not self-propelled, and could be moved only by the application of some external source of power. Three of the barges were placed end to end and lashed securely together. According to the trial court, this three-barge structure was moored "more or less permanently" to the shore by separate steel cables. The fourth barge, which served as a crane platform and as an access ramp to the other three barges, was located between the shore and the remaining barges. This fourth barge was connected to shore by a wooden ramp. To permit the crane to service each of the three outer barges, the three-barge platform would occasionally be untied and moved slightly forward or backward until properly positioned.

This court has previously held that a similar floating construction platform, which was neither designed for navigation nor engaged in navigation at the time of the accident, was, as a matter of law, not a vessel under the Jones Act. Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir. 1973). In Cook, as in the instant case, the barges were afloat, but that fact alone was not determinative of status. See also Blanchard v. Engine and Gas Compressor Services, Inc., 575 F.2d 1140 (5th Cir. 1978). Because appellant's proffered distinctions between Cook and the instant case are unpersuasive, and because we can find no material difference between the two cases, we are compelled to uphold the determination below that Leonard was not injured on a vessel. Accordingly, summary judgment was properly granted on that issue. Nonetheless, we note that Cook and now the instant case deviate from the general practice permitting Jones Act issues to be submitted to the jury, and accordingly should be applied restrictively.

Appellant next contends that the remaining counts should have been tried by a jury, rather than by the court. Appellant concedes that his original complaint asserted only maritime claims, for which no jury trial would have been available. However, pointing to the pre-trial order, which mentions diversity as a possible basis for jurisdiction, and to a brief colloquy at trial in which plaintiff requested reconsideration of the denial of the jury request, appellant asserts that the court and defendant had adequate notice of appellant's intention to abandon the admiralty claims and proceed solely in diversity, seeking recovery for negligence. We need not speculate about possible justifications for appellant's indirect attempts to provide notice rather than filing a formal motion because, in any event, there was no complete diversity between the parties. According to the complaint, both Leonard and the defendant Nichols were Louisiana residents. Thus, the trial court properly proceeded in admiralty. Appellant's other arguments on appeal are without merit and need not be discussed.

AFFIRMED.

GODBOLD, Circuit Judge, dissenting:

I believe that whether the construction platform was a vessel was a jury issue and not properly decided on summary judgment as an issue of law.

The trial court and this court stand on Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (CA5, 1973). The plaintiff in...