Norman v. Aubrey Burke and Associates, Civ. A. No. 82-3906.

• Decision Date: 03 May 1984
• Docket Number: Civ. A. No. 82-3906.
• Citation: 585 F. Supp. 494
• Parties: Robert NORMAN, et al. v. AUBREY BURKE AND ASSOCIATES, et al.
• Court: U.S. District Court — Eastern District of Louisiana

585 F. Supp. 494

Robert NORMAN, et al. v. AUBREY BURKE AND ASSOCIATES, et al.

Civ. A. No. 82-3906.

United States District Court, E.D. Louisiana.

May 3, 1984.

Frank S. Bruno, New Orleans, La., for plaintiffs.

Charles R. Capedeville, Metairie, La., for The Fidelity and Cas. Co.

Christovich & Kearney, Charles W. Schmidt, III, New Orleans, La., for Aubrey Burk & Associates and Fidelity & Cas. Co. of N.Y.

Camp, Carmouche, Barsh, Hunter & Gray, Joseph G. Gallagher, Jr., New Orleans, La., for Dixie Well Service, Inc. of Miss., Mission Ins. Co.

Bailey & Leininger, Robert C. Leininger and Darryl D. Sicarelli, Metairie, La., for Early American Ins. Co.

Lester J. Lautenschlaeger, Jr., New Orleans, La., for Atlas Assurance Co.

OPINION

ARCENEAUX, District Judge.

Robert Norman and his wife, Kristi, brought this action under the Jones Act, 46 U.S.C.A. § 688, and the general maritime law against Norman's employer, Aubrey Burke and Associates, Inc. (Burke) and against the owner of the vessel on which Norman allegedly was injured, Dixie Well Services of Mississippi (Dixie). Defendants moved for summary judgment dismissing Norman's Jones Act claim, on the ground that he was not a Jones Act seaman. The Court granted defendants' motion, and Norman moved for reconsideration. For the reasons stated below, Norman's motion for reconsideration will be granted, and the Court's prior order in this matter will be vacated.

FACTS

Norman worked for a field surveying outfit, Burke, for three and one-half weeks in the later summer of 1981. Burke was training Norman to become the party chief of a Burke surveying crew. He spent his first eleven days in the office familiarizing himself with Burke's surveying business. The remaining seventeen days he spent in the field, seven of which involved work aboard a vessel. Initially, his official title was junior party chief, though he had a variety of responsibilities, including mooring and unmooring work boats, loading and unloading surveying equipment from the boats, operating surveying instruments both on the boats and from fixed positions offshore, drawing field notes, doing surveying calculations, and giving navigational instructions to the captain of the boat.

Occasionally, Burke utilized its own vessels for the surveying operations. More often, however, it chartered work boats for the surveying task. The vessels served various functions in the surveying operations. They transported men and equipment between the shore and the various surveying sites. In addition, the surveying operations required the use and mobility of the vessels. Surveying equipment was operated and surveying calculations were taken aboard the vessels. The vessels were maneuvered in order to coordinate calculations by reference to fixed points offshore. Buoys were dropped from the vessels when appropriate sites were selected. Finally, the vessels swept the selected area to search for submerged objects which could interfere with future drilling operations.

Norman's tours of duty took him to such places as Breton Sound and Grand Lake, and they generally lasted from two to three days. Norman's last assignment came on September 7, 1981, when he participated in a surveying job at Breton sound aboard the MARTHA L, a work boat that Burke chartered from Dixie. Unfortunately, Norman was injured while moving field surveying equipment from a landing at Hopedale, Louisiana onto the MARTHA L. This action followed.

LAW

Under the Jones Act, "any seaman who shall suffer a personal injury in the course of his employment" has a right to claim damages in an action alleging that his employer was negligent. 46 U.S.C. § 688. The question in this motion is whether Robert Norman was, when he was injured, a seaman.

In passing on Norman's motion, the Court must view the evidence and the inferences to be drawn therefrom in the light most favorable to the plaintiff. When viewed in this light, the Court must determine whether there is any genuine issue as to any material fact and whether the movant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). Ordinarily, whether the plaintiff is a seaman is a fact question to be resolved by the jury, and "only in rare cases is the question taken from the jury or trier of facts ... the issue is to be left to the jury even when the claim to seaman status appears to be relatively marginal." Wallace v. Oceaneering International, 727 F.2d 427, 432 (5th Cir.1984) (citations omitted). Nevertheless, when there is no genuine factual dispute to be resolved on this issue, the Court may enter summary judgment on a seaman's status. Coulter v. Texaco, Inc., 714 F.2d 467, 468 (5th Cir.1983).

The basic issue of seaman's status involves the following two elements: (1) whether the claimant was assigned permanently to a vessel, or performed a substantial part of his work on a 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 anchorage for its future trips. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959).

The first element of the Robison test concerns the extent of the claimant's connection with the vessel. This element has two prongs, the "permanent assignment" prong and the "substantial work" prong, which offer alternative grounds for meeting the standard. Davis v. Hill Engineering, Inc., 549 F.2d 314, 326 (5th Cir.1977). The "permanent assignment" prong contemplates a vessel relationship that is substantial in point and time and not merely sporadic. Dove v. Belcher Oil Co., 686 F.2d 329, 333 (5th Cir.1982). However, "the word `permanent' has never been given a literal meaning under the Jones Act ... but rather is to be used as an analytic starting point instead of a self-executing formula. The key is that there must be a relationship between the claimant and a specific vessel or identifiable group of vessels." Roberts v. Williams-McWilliams, 648 F.2d 255, 261-62 (5th Cir.1981). There is nothing about the expanding concept of seaman's status which limits it mechanically to a single ship. Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523, 528 (5th Cir.1960). Further, the fact that an employer charters, rather than owns, the vessels upon which the employee works has not affected the claimant's seaman's status. See Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir.1981). That a claimant's work places him on several different vessels is relevant, however, to the seaman's status determination. Generally, as the number of vessels increases and the period of service decreases, the claimant's relationship with the vessels tends to become more tenuous and transitory. Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240, 246 (5th Cir. 1983).

To satisfy the "substantial work" prong of the Robison test, the claimant must show that he performed a significant part of his work aboard the vessel with at least some degree of regularity and continuity. Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 353 (5th Cir.1982). There is no precise delineation of that quantum of duties which, when performed on board a vessel, will make the employee a seaman, and no bright line test determines the degree of frequency and regularity of performance which must be shown in order to claim seaman's status. Keener v. Transworld Drilling Co., 468 F.2d 729, 731-32 (5th Cir.1972). The Court must consider all of the circumstances of the claimant's employment to determine the relation of vessel-related activities to the claimant's total responsibilities. Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1346 n. 6 (5th Cir.1980).

The second part of the Robison test concerns whether the claimant's work activities contributed to the vessel's mission, operation, or welfare. Basically, this element requires that the claimant have worked aboard the vessel primarily to aid in navigation. 1B Benedict on Admiralty § 11a (7th ed. 1982). However, the requirement may be satisfied where the claimant's duties merely contributed to the function and operation of the vessel, or to the accomplishment of its mission. Brown v. ITT Rayonier, Inc., 497 F.2d 234, 237-38 (5th Cir.1974). Also, a claimant may satisfy this requirement where his duties were limited to aiding in the operation or welfare of the vessel in terms of maintenance during its movement or during its anchorage for future trips. Benedict, supra at § 11a. The Court must take a realistic look at the actual relationship between the employee's duties and the function of the ship or the accomplishment of its mission. Bazile v. Bisso Marine Co., Inc., 613 F.2d 314 (5th Cir.1980).

ANALYSIS

I. Vessel relationship

a. "permanent assignment" prong

The "permanent assignment" prong requires a close link between the claimant and a specific vessel or identifiable group of vessels. Burke utilized neither a specific vessel nor an identifiable group of vessels for its surveying operations. Norman worked aboard a variety of vessels which Burke either owned or chartered. However, which work boat was chartered for a particular operation apparently was determined on an ad hoc basis. Norman never worked aboard the same vessel more than once, and thus he had never stepped onto the MARTHA L before September 7, 1981, the day he was injured. Accordingly, Norman's relationship to the Burke...