Michel v. Total Transp., Inc., 91-3110

• Decision Date: 02 April 1992
• Docket Number: No. 91-3110,91-3110
• Citation: 957 F.2d 186
• Parties: Leroy MICHEL, Jr. and Cindy Michel, Plaintiffs-Appellees, Cross-Appellants, v. TOTAL TRANSPORTATION, INC. and Assuranceforeningen Gard, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 186

957 F.2d 186

1993 A.M.C. 2406

Leroy MICHEL, Jr. and Cindy Michel, Plaintiffs-Appellees Cross-Appellants, v. TOTAL TRANSPORTATION, INC. and Assuranceforeningen Gard Defendants-Appellants, Cross-Appellees.

No. 91-3110.

United States Court of Appeals Fifth Circuit.

April 2, 1992.

S. Gene Fendler, R. Keith Jarrett, Liskow & Lewis, New Orleans, La., for defendants-appellants cross-appellees.

Richard A. Weigand, Joseph J. Weigand, Weigand, Weigand & Meyer, New Orleans, La., for plaintiffs-appellees cross-appellants.

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

Before THORNBERRY, KING and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Leroy Michel ("Michel") filed this action against his employer, Total Transportation, Inc. and its insurer, Assuranceforeningen Gard (collectively, "TTI"), to recover damages under the Jones Act (46 U.S.C.App. § 688) and general maritime law for unseaworthiness and in the alternative, under 33 U.S.C. § 905(b), the Longshore and Harbor Workers' Compensation Act (LHWCA) for personal injuries he suffered in the course of his employment. Michel's wife, Cindy Michel, asserted a claim for loss of consortium under general maritime law. After a bench trial, the district court found that the GEMINI was a special purpose vessel, Michel was a "seaman" entitled to the remedies of the Jones Act, TTI was negligent under the Jones Act and the LHWCA, and the GEMINI was unseaworthy. The district court awarded Michel $534,000 in damages, ¹ and $35,000 to Cindy Michel for loss of consortium. TTI appeals asserting that the Jones Act does not apply. Michel cross-appeals the $250,000 award for loss of future earnings and earning capacity. We reverse the award of damages for loss of consortium and otherwise affirm the judgment.

Michel was permanently assigned to the GEMINI, a special purpose barge, owned by TTI. The GEMINI was designed to transfer bulk cargo, usually grain, midstream from river barges to ocean-going vessels. The GEMINI performs this unique transfer function on a six mile stretch of the Mississippi River. The GEMINI is moved into position midstream by a tug or push-boat. When working, the GEMINI is held in position by side deck winches, whose cables are lashed onto the ocean-going vessel. The ocean-going vessel is moored to a mooring buoy and anchored in the river. The cargo barges are secured alongside the GEMINI. The GEMINI's two large cranes scoop the grain out of the barge holds and place it in the hopper on the GEMINI where the grain is weighed, tested, then deposited into the hold of the ocean-going vessel. The GEMINI can be equipped with navigation aids when necessary. Michel's regular duties on the GEMINI involved driving a tractor inside the cargo holds of river barges to sweep them clean of all the grain. His duties also included handling cables and lines, operating deck machinery, as well as cleaning and painting the GEMINI.

On October 7, 1989, Michel was pressure-washing the grain dust off of the hopper on the GEMINI. He was suspended in a basket from one of the large cranes normally used to transfer cargo from the barges. The basket was attached to the crane by a holding line. Because the crane was not designed for carrying personnel, a "headache ball" was attached to the holding line approximately three feet above Michel's head in order to provide additional weight so that the crane would operate more easily. The combined weight of the basket, Michel, and the headache ball totalled less than 1,000 pounds. As the crane's load descended, the basket settled upon a suspended dust pipe, but the headache ball continued to lower, striking Michel's hand and pinning it to the side of the basket. The basket then tipped, and Michel was thrown clear landing on the roof of a small work shed. As a result, Michel suffered multiple fractures to his right hand, and left elbow.

I. WAS MICHEL A JONES ACT SEAMAN?

In relevant part, the Jones Act provides that "[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply...." 46 U.S.C.App. § 688(a). ² To qualify as a seaman under the Jones Act, the plaintiff must show that he was permanently assigned to or performed a substantial part of his work aboard a "vessel". Gremillion v. Gulf Coast Catering Company, 904 F.2d 290 (5th Cir.1990). "The existence of a vessel is a 'fundamental prerequisite to Jones Act jurisdiction' and is at the core of the test for seaman status. Unfortunately, the term 'vessel' has escaped precise definition, which helps to explain why special-use structures ... may qualify at times as Jones Act vessels, despite traditional notions in maritime jurisprudence to the contrary." Id. at 292 (citations omitted).

The Supreme Court has recently stated that the determination of who is a seaman is "better characterized as a mixed question of law and fact, rather than a pure question of fact." McDermott Int'l, Inc. v. Wilander, --- U.S. ----, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991), quoted in Southwest Marine Inc. v. Gizoni, --- U.S. ----, ----, 112 S.Ct. 486, 492, 116 L.Ed.2d 405. Nonetheless, "[t]he 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." Id. We review findings of mixed law and fact in the following manner:

As to the trial court's underlying factual findings and factual inferences deduced there from, we are bound by the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure. However, as to the legal conclusion reached by the district court based upon this factual data, ... we may review this as an issue of law.

Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th Cir.1983).

A. THE GEMINI

The GEMINI is a "special purpose structure" not readily identifiable as a ship. The seminal Fifth Circuit case on this subject, Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), involved a floating drilling platform. The court referred to this structure as a "special purpose structure," since it was not usually employed as a means of transport by water but was nonetheless designed to float on water. Id. at 779. Later cases narrowed this definition so that it is no longer enough just to show that the structure is designed to float on water:

In order to qualify as a Jones Act seaman [the plaintiff] 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. 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. 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. 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.

Ellender v. Kiva Construction & Engineering, Inc., 909 F.2d 803, 806 (5th Cir.1990) (citations omitted and emphasis added).

In Bernard v. Binnings Const. Co. Inc., 741 F.2d 824 (5th Cir.1984), we noted that we are seldom presented with direct evidence of the purpose which a vessel's designer may have had in mind. Therefore, we developed a list of objective features, which suggest that a structure's intended purpose is transportation across navigable waters. "These features are: (1) navigational aids; (2) raked bow; (3) lifeboats and other lifesaving equipment; (4) bilge pumps; (5) crew quarters; and (6) registration as a vessel with the Coast Guard." Id. at 832 n. 25. The district court found that the GEMINI had all of these features describing the GEMINI as having a raked bow, a Coast Guard registry, a first-preferred ship mortgage, crew feeding quarters, a locker room with showering and toilet facilities, an elaborate ballast system, bilge pumps, and other complex machinery and equipment built into her hull. Michel v. Total Transportation, Inc., No. 91-3110 (E.D.La. January 4, 1991) at 232, 239-41 (hereinafter, Michel ).

TTI argues that since the purpose of the GEMINI is the transfer of cargo (primarily grain) from river barges to oceangoing vessels, it is essentially a floating grain elevator and, therefore, performs stevedoring services, i.e. the transfer and stowage of cargo. According to TTI, the GEMINI's transportation function is incidental to its primary stevedoring purpose, therefore, its capability of and occasional movement across navigable waters is not determinative of vessel status. TTI compares the GEMINI to the numerous special purpose structures for which the Fifth Circuit has denied vessel status:

(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.

We agree with the district court that the GEMINI's transportational function is not "merely incidental": to its primary purpose as a work platform. The district court correctly concluded that the GEMINI is

designed to move cargo from vessel to another ... she does move cargo, albeit not for great distances. If one wants to look at it as a continuous transportation by water of grain ... from some inland port upriver to some foreign port, she's an integral part of that...