Pavone v. Mississippi Riverboat Amusement Corp.
| Decision Date | 19 May 1995 |
| Docket Number | 94-60706,Nos. 94-30251,s. 94-30251 |
| Parties | , 63 USLW 2753, 32 Fed.R.Serv.3d 271 Christopher PAVONE, Plaintiff-Appellant, v. MISSISSIPPI RIVERBOAT AMUSEMENT CORPORATION, et al., Defendants-Appellees. Kathleen L. KETZEL, Plaintiff-Appellant, v. MISSISSIPPI RIVERBOAT AMUSEMENT, LTD., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard H. Barker, IV, Barker & Boyer, New Orleans, LA, for appellant in No. 94-30251.
Nicole Duarte Martin, Gerald J. Talbot, Lemle & Kelleher, New Orleans, LA, for appellees in No. 94-30251.
David A. Hilleren, David Paul Bains, Rebecca Y. Cooper, New Orleans, LA, for appellant in No. 94-60706.
James H. Heidelberg, Michael J. McElhaney, Jr., Colingo, Williams, Heidelberg, Steinberger & McElhaney, Pascagoula, MS, for appellee in No. 94-60706.
Appeal from the United States District Court for the Eastern District of Louisiana.
Appeal from the United States District Court for the Southern District of Mississippi.
Before WISDOM, WIENER and PARKER, Circuit Judges.
The appeals we hear in consolidation today are brought by two plaintiffs-appellants who claim that they were injured while working on a Jones Act vessel, but whose claims were dismissed on summary judgments rendered by different district courts. Both claims arose in the context of the dockside casino facet of the burgeoning gaming industries in two of the states of this circuit. In our plenary review of the district courts' summary judgments, we exercise our authority to affirm for reasons differing somewhat from those of the trial courts.
In the first of the cases we review today, Plaintiff-Appellant Christopher Pavone filed suit in Louisiana state court against Defendants-Appellants, Mississippi Riverboat Amusement Corporation, et al. (Riverboat Companies), alleging a work-related accident and seeking recovery under the Jones Act 1 for disablement, lost wages, impairment of future earning capacity, mental and physical pain and suffering, and loss of enjoyment of life. In addition to compensatory damages, Pavone seeks punitive damages and attorneys' fees.
Pavone maintains that he was employed as a bartender on the BILOXI BELLE, a floating dockside casino moored in Biloxi, Mississippi, and claims that he injured his foot during the course and scope of his employment while working at a related restaurant located dockside of the BILOXI BELLE. In particular, Pavone alleges that he stepped on a screw, which penetrated his shoe and punctured his foot, at a time when the BILOXI The Riverboat Companies were served with process on or about September 16, 1993, after which they timely removed the case to federal court for the Eastern District of Louisiana on October 12, 1993. More than thirty days later, on November 15, 1993, Pavone filed a motion to remand, contending that his Jones Act case was not removable. Fifteen days thereafter the Riverboat Companies filed a motion for summary judgment, insisting that the BILOXI BELLE was neither a Jones Act vessel nor "in navigation" at the time of Pavone's alleged accident.
BELLE was being prepared for its grand opening, scheduled for the following day.
On December 20, 1993, the district court denied Pavone's motion to remand, apparently concluding, inter alia, that the motion was untimely, and on February 16, 1994, the court denied Pavone's motion for reconsideration. Twice the court granted Pavone continuances, but eventually granted the Riverboat Companies' motion for summary judgment, holding, as a matter of law, that the BILOXI BELLE was not a Jones Act vessel.
Pavone's timely filing of a notice of appeal led to this review, in which he assigns the following as points of reversible error: (1) his motion to remand was not untimely when filed within thirty-three days following the filing by the Riverboat Companies of their notice of removal; (2) his suit comprised a nonremovable Jones Act claim; (3) the "saving to suitors" clause prohibits removal of state court maritime actions; (4) his last motion to continue the Riverboat Companies' motion for summary judgment should have been granted; and (5) the BILOXI BELLE and similar floating casinos are either conventional vessels or special purpose craft, in either case satisfying requirements for vessel status under the Jones Act.
Plaintiff-Appellant Kathleen L. Ketzel alleges that she was injured while working as a cocktail waitress on the BILOXI BELLE and filed suit in federal court for the Southern District of Mississippi against her employer, one of the Riverboat Companies, Defendant-Appellee, Mississippi Riverboat Amusement, Ltd. (Mississippi Riverboat Amusement). Ketzel seeks recovery under the Jones Act and the general maritime law for severe injuries to her knee, which she claims occurred when she tripped over a garbage can lid and fell during the course and scope of her employment aboard the BILOXI BELLE.
In April 1994, Mississippi Riverboat Amusement filed a motion for summary judgment, contending that Ketzel was not a seaman when she was injured on the BILOXI BELLE because it was not a vessel in navigation under the Jones Act or the general maritime law. Ketzel filed her own summary judgment motion, which Mississippi Riverboat Amusement answered by filing a motion seeking an extension of time within which to respond, which the district court granted. Several months later, the district court also granted Mississippi Riverboat Amusement's summary judgment motion, concluding that, as a matter of law, the BILOXI BELLE "is nothing but a 'floating casino' ... not a 'vessel' under the Jones Act." 2 Ketzel timely filed her notice of appeal.
The structure now known as the BILOXI BELLE is situated on a barge that was constructed at Morgan City, Louisiana, for the express purpose of supporting a floating restaurant and bar that was to be located at Corpus Christi, Texas. In preparation therefor, the completed barge was towed from Morgan City to a shipyard in Rockport, Texas In preparation for its use as a dockside floating casino, the BILOXI BELLE was moored to shore by lines tied to sunken steel pylons that were filled with concrete. The first level of the BILOXI BELLE was connected to the pier by steel ramps, and the second level was joined to a shore-side building. In addition, numerous shore-side utility lines--telephone, electric, gas, sewer, domestic fire and water, cable TV, and computer--were connected permanently (or at least indefinitely) to the BILOXI BELLE. Only by removing steel pins from the ramps and letting loose all lines and cables could the BILOXI BELLE be disconnected from the shore.
where the restaurant structure was added and the name WAYWARD LADY was affixed. The WAYWARD LADY was towed from Rockport to Corpus Christi, where it was operated as a restaurant and bar, as originally contemplated. After a while, the WAYWARD LADY was moved from Corpus Christi to Aransas Pass, Texas, where it remained moored for approximately two and a half more years before being re-outfitted as a casino, towed to Biloxi, and renamed the BILOXI BELLE.
The barge upon which the casino structure of the BILOXI BELLE rests has a steel hull, a raked bow to facilitate its being towed, bilge pumps, functional ballast tanks, an auxiliary generator to supply emergency electrical power, and below-deck features including storage facilities and a galley for employee meals and work breaks. It is 217 feet long, 44 feet wide, has a 10-foot draft, and a gross and net tonnage of 2587 tons. The barge is documented by the United States Coast Guard, is assigned an official registration number, is authorized to engage in the coastwise trade, is approved to undertake voyages between ports of the United States with no restrictions, and is home-ported in New Orleans. In addition, an engineer from the American Bureau of Shipping Marine Services, Inc. reviewed the stability of the BILOXI BELLE and rendered an evaluation of the "vessel's intact stability." The BILOXI BELLE Casino is licensed for gaming by the Mississippi Gaming Commission pursuant to the Mississippi Gaming Control Act, which allows such licenses to be issued only to operators of "vessels" or "cruise vessels." A continual stand-by towing contract with Alario Brothers Towing commits that company to supply the equipment, facilities, and expertise required to tow the BILOXI BELLE to sheltered waters in the event potentially damaging weather is forecast. (The BILOXI BELLE was towed to sheltered waters on August 23, 1992, when Hurricane Andrew threatened.)
The BILOXI BELLE has no engine, no captain, no navigational aids, no crewquarters and no lifesaving equipment. For visual effect only, the BILOXI BELLE is outfitted with a decorative pilot house containing no operating parts other than a single light switch. This faux pilot house contains no steering mechanism, but is decorated with an antique wheel for purely aesthetic purposes. Decorative ring buoys are located on the BILOXI BELLE, but they too are purely visual effects and are not intended for lifesaving use.
Likewise, a motorized but nonfunctional paddle wheel is affixed to the BILOXI BELLE. The paddle wheel is turned by a small engine, and water outlets around the wheel produce spray to give the appearance of function, but the wheel rests permanently above the water level and serves no propulsion function.
Despite having been towed from its place of manufacture in Louisiana to two restaurant and bar locations in Texas and eventually to its dockside casino location in Biloxi, the subject barge has never been used as a seagoing vessel to transport passengers, cargo, or equipment across navigable waters. Neither was it originally constructed to do so. Even though the barge floats on navigable waters, its quite substantial dockside attachment...
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